EXHIBIT 10.10
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STOCKHOLDERS' AGREEMENT
dated as of February 2, 1998
among
BLACKSTONE CAPITAL PARTNERS III MERCHANT BANKING FUND L.P.,
BLACKSTONE OFFSHORE CAPITAL PARTNERS III L.P.,
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP III L.P.,
BMP/GRAHAM HOLDINGS CORPORATION,
GRAHAM PACKAGING HOLDINGS COMPANY,
GPC CAPITAL CORP. II
and
BT INVESTMENT PARTNERS, INC.
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS........................................ 1
1.1 Defined Terms...................................... 1
1.2 Other Definitional Provisions; Interpretation...... 3
SECTION 2. PURCHASE OF BMP STOCK.............................. 4
2.1 Purchase of BMP Stock.............................. 4
2.2 The Closing........................................ 4
SECTION 3. TRANSFERS AND ISSUANCES............................ 4
3.1 Limitations on Transfer............................ 4
3.2 Certain Permitted Transfers........................ 4
3.3 Effect of Void Transfers........................... 4
3.4 Legend on Securities............................... 5
3.5 Tag-Along Rights................................... 5
3.6 Public Offerings, etc.............................. 6
3.7 Drag-Along Rights.................................. 6
SECTION 4. REGISTRATION RIGHTS................................ 6
4.1 Incidental Registration............................ 6
SECTION 5. VOTING AGREEMENTS.................................. 7
5.1 Election of Directors.............................. 7
5.2 Other Voting Matters............................... 7
SECTION 6. REPRESENTATIONS AND WARRANTIES..................... 7
6.1 Representations and Warranties of BMP.............. 7
6.2 Representations and Warranties of the BT Investor.. 8
6.3 Certain Agreements................................. 9
SECTION 7. MISCELLANEOUS...................................... 9
7.1 Additional Securities Subject to Agreement......... 9
7.2 Termination........................................ 9
7.3 Injunctive Relief.................................. 9
7.4 Amendments.......................................... 9
7.5 Successors, Assigns and Transferees..................9
7.6 Notices............................................ 10
7.7 Integration........................................ 11
7.8 Severability....................................... 11
7.9 Counterparts....................................... 11
7.10 Governing Law...................................... 11
7.11 Jurisdiction....................................... 11
7.12 No Recourse........................................ 11
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STOCKHOLDERS' AGREEMENT, dated as of February 2, 1998, among Blackstone
Capital Partners III Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Offshore Capital Partners III L.P., a Cayman Islands exempted limited
partnership, and Blackstone Family Investment Partnership III L.P., a Delaware
limited partnership (collectively, "Blackstone"), BMP/Graham Holdings
Corporation, a Delaware corporation ("BMP"), Graham Packaging Holdings Company,
a Pennsylvania limited partnership ("Holdings"), GPC Capital Corp. II, a
Delaware corporation ("CapCo. II"), and BT Investment Partners, Inc. (the "BT
Investor").
W I T N E S S E T H :
WHEREAS, on the date hereof, Blackstone owns 20,825 shares of common
stock, par value $.01 per share (the "BMP Stock"), of BMP, which are all of the
outstanding shares of BMP Stock;
WHEREAS, pursuant to the transactions contemplated by the
Recapitalization Agreement (as defined below), BMP holds indirectly a 4% general
partnership interest and directly an 81% limited partnership interest in
Holdings;
WHEREAS, CapCo. II is a wholly owned subsidiary of Holdings;
WHEREAS, on the terms and subject to the conditions hereof, the BT
Investor desires to purchase from Blackstone, and Blackstone desires to sell to
the BT Investor, 1,000 shares of BMP Stock (which represents approximately 4.8%
of the shares of BMP Stock outstanding on the date hereof), as hereinafter set
forth;
WHEREAS, the parties hereto wish to enter into certain agreements with
respect to the holdings by Blackstone and the BT Investor and its Permitted
Transferees of stock of the Company (as defined below); and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, terms defined in the
headings and the recitals shall have their respective assigned meanings, and the
following capitalized terms shall have the meanings ascribed to them below:
"Affiliate" means, with respect to any Person, (i) any 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, or (iii) any spouse, parent,
child or sibling of any Person specified in clause (i) or (ii) above.
"Agreement" means this Stockholders' Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Business Day" means a day other than a Saturday, Sunday, holiday or
other day on which commercial banks in New York City or the State of
Pennsylvania are authorized or required by law to close.
"Closing Date" means the date of the closing under this Agreement.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Common Stock Equivalents" means any stock, warrants, rights, calls,
options or other securities exchangeable or exercisable for or convertible into
Common Stock.
"Company" means (i) prior to the initial Public Offering, BMP and (ii)
in connection with or after the initial Public Offering, CapCo. II.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"IPO Reorganization" means, collectively, (i) the transfer of all or
substantially all of Holdings' assets and liabilities to CapCo. II upon an
initial Public Offering, (ii) the dissolution or liquidation of BMP, BCP/Graham
Holdings LLC and Holdings (and the distribution to the equity holders of each
such entity all of the assets of such entity on a pro rata basis) and (iii) all
transactions necessary or incidental thereto.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation System.
"Permitted Transferee" means any Person to whom Blackstone or the BT
Investor (or any direct or indirect Permitted Transferee thereof) transfers
Securities in accordance with the terms of this Agreement (other than pursuant
to a Public Offering or pursuant to Rule 144 under the Securities Act) and who
becomes a party to, and is bound to the same extent as its transferor by the
terms of, this Agreement.
"Person" means any individual, corporation, partnership, trust, joint
stock company, business trust, unincorporated association, joint venture,
governmental authority or other entity of any nature whatsoever.
"Public Offering" means the sale of Common Stock to the public in a
firm commitment underwritten public offering pursuant to an effective
registration statement (other than a registration statement on Form S-4, S-8 or
similar form) filed under the Securities Act, which results in an active trading
market in such Common Stock (it being understood that
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such an active trading market shall be deemed to exist if, among other things,
such Common Stock are listed on a national securities exchange or on NASDAQ).
"Recapitalization Agreement" means the Agreement and Plan of
Recapitalization, Redemption and Purchase dated as of December 18, 1997 by and
among Holdings, Donald C. Graham and certain of his Affiliates, BCP/Graham
Holdings LLC and BMP, as the same may be amended, supplemented or otherwise
modified from time to time.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of February 2, 1998 among Holdings, CapCo. II, Blackstone, Graham
Capital Corporation and Graham Family Growth Partnership and attached as Exhibit
A hereto, as the same may be amended, supplemented or otherwise modified from
time to time.
"Securities" means shares of Common Stock or Common Stock Equivalents,
whether owned on the date hereof or hereafter acquired.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"Stockholders" means Blackstone and the BT Investor and its respective
Permitted Transferees.
"Third Party" means any Person other than the Company, the Stockholders
and their Affiliates.
"Transfer" means any transfer, sale, assignment, distribution,
exchange, mortgage, pledge, hypothecation or other disposition of any Securities
or any interest therein.
1.2 Other Definitional Provisions; Interpretation. (a) The words
"hereof", "herein", and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, Subsection, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(b) The headings in this Agreement are included for convenience of
reference only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) For purposes of comparing the beneficial ownership of any Person on
the date of execution and delivery of this Agreement to the level of such
ownership at any later time, the level of ownership on such later date shall be
adjusted to eliminate the effect of any subdivision of the Common Stock, any
combination of the Common Stock, any issuance of Common Stock or Common Stock
Equivalents by reason of any reorganization or reclassification (including,
without limitation, the IPO Reorganization and any reclassification
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in connection with a merger or consolidation), or any dividend payable in Common
Stock or Common Stock Equivalents.
SECTION 2. PURCHASE OF BMP STOCK
2.1 Purchase of BMP Stock. Pursuant to the terms and subject to the
conditions set forth in this Agreement, the BT Investor hereby agrees to
purchase, and Blackstone hereby agrees to sell to the BT Investor, on the
Closing Date 1,000 shares of BMP Stock at a price per share equal to $10,000.
2.2 The Closing. The closing (the "Closing") of the purchase of BMP
Stock hereunder shall take place on or as soon as practicable after the date
hereof at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, New York. At the Closing, the BT Investor shall deliver to Blackstone
$10,000,000 by delivery of a certified check or by wire transfer in immediately
available funds.
SECTION 3. TRANSFERS AND ISSUANCES
3.1 Limitations on Transfer. (a) The BT Investor and its Permitted
Transferees hereby agrees that such Stockholder will not, directly or
indirectly, Transfer any Securities unless such Transfer complies with the
provisions hereof and (i) such Transfer is pursuant to an effective registration
statement under the Securities Act and has been registered under all applicable
state securities or "blue sky" laws or (ii) such Stockholder shall have
furnished the Company with a written opinion of counsel reasonably satisfactory
to the Company in form and substance reasonably satisfactory to the Company to
the effect that no such registration is required because of the availability of
an exemption from registration under the Securities Act and all applicable state
securities or "blue sky" laws.
(b) The BT Investor and its Permitted Transferees hereby agrees that,
except for Transfers in connection with a Public Offering, Transfers pursuant to
Section 3.5 or 3.7 hereof and Transfers pursuant to Rule 144 under the
Securities Act, no Transfer shall occur unless the transferee shall agree to
become a party to, and be bound to the same extent as its transferor by the
terms of, this Agreement in accordance with the provisions of Section 7.5
hereof.
(c) Each of the BT Investor and its Permitted Transferees hereby agrees
that, except as otherwise provided in Section 3.2 hereof, such Stockholder shall
not, without the prior written consent of Blackstone (which consent may be
withheld by Blackstone in its absolute discretion), effect a Transfer, except
for Transfers pursuant to Section 3.5, 3.7 or 4 hereof.
3.2 Certain Permitted Transfers. Notwithstanding any other provision of
this Agreement to the contrary, the BT Investor and its Permitted Transferees
shall be entitled from time to time to Transfer any or all of the Securities
beneficially owned by them to any Affiliate of the BT Investor or Permitted
Transferee (including any of its partners), provided
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that any such transferee agrees to become a party to, and be bound to the same
extent as its transferor by the terms of, this Agreement.
3.3 Effect of Void Transfers. In the event of any purported Transfer of
any Securities in violation of the provisions of this Agreement, such purported
Transfer shall be void and of no effect and the Company shall not give effect to
such Transfer.
3.4 Legend on Securities. Each certificate representing Securities
issued to the BT Investor or any of its Permitted Transferees shall bear the
following legend on the face thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO A STOCKHOLDERS' AGREEMENT AMONG THE ISSUER, BLACKSTONE
CAPITAL PARTNERS III MERCHANT BANKING FUND L.P., BLACKSTONE
OFFSHORE CAPITAL PARTNERS III L.P., AND BLACKSTONE FAMILY
INVESTMENT PARTNERSHIP L.P. AND BT INVESTMENT PARTNERS, INC.,
A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE ISSUER.
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH
STOCKHOLDERS' AGREEMENT AND (A) PURSUANT TO A REGISTRATION
STATEMENT EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR (B) IF THE ISSUER HAS BEEN FURNISHED WITH AN
OPINION REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE
ISSUER OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT
SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND
REGULATIONS THEREUNDER. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF
THE PROVISIONS OF SUCH STOCKHOLDERS' AGREEMENT."
3.5 Tag-Along Rights. (a) So long as this Agreement shall remain in
effect, with respect to any proposed Transfer by Blackstone of Common Stock
(other than to an Affiliate of Blackstone, including any of its partners),
Blackstone shall have the obligation, and each other Stockholder shall have the
right, to require the proposed transferee to purchase from each Stockholder
having and exercising such right (each, including any Person having similar
rights pursuant to any other agreement, a "Tagging Stockholder") a number of
shares of Common Stock up to the product (rounded up to the nearest whole
number) of (i) the quotient determined by dividing (A) the aggregate number of
shares of Common Stock beneficially owned on a fully diluted basis by such
Tagging Stockholder and sought by the Tagging Stockholder to be included in the
contemplated Transfer by (B) the aggregate number of shares of Common Stock
beneficially owned on a fully diluted basis by Blackstone and all Tagging
Stockholders and (ii) the total number of shares of Common Stock proposed to be
Transferred to the transferee in the contemplated Transfer, and at the same
price per share of Common Stock and upon the same terms and conditions
(including, without limitation, time of payment and form of consideration) as to
be paid and given to Blackstone; provided that in order to be entitled to
exercise its right to sell shares of Common Stock to
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the proposed transferee pursuant to this Section 3.5(a), a Tagging Stockholder
must agree to make to the transferee the same representations, warranties,
covenants, indemnities and agreements as Blackstone agrees to make in connection
with the proposed Transfer of the shares of Common Stock of Blackstone (except
that in the case of representations and warranties pertaining specifically to
Blackstone a Tagging Stockholder shall make the comparable representations and
warranties pertaining specifically to itself); and provided further that all
representations, warranties and indemnities shall be made by the Tagging
Stockholders severally and not jointly and that the liability of Blackstone and
the Tagging Stockholders thereunder shall be borne by each such Stockholder on a
pro rata basis and be limited to the proceeds received by such Stockholder in
such Transfer.
(b) Blackstone shall give notice to all relevant Stockholders of each
proposed Transfer giving rise to the rights of the Tagging Stockholders set
forth in the first sentence of Section 3.5(a) at least 15 days prior to the
proposed consummation of such Transfer, setting forth the name of Blackstone,
the number of shares of Common Stock proposed to be so Transferred, the name and
address of the proposed transferee, the proposed amount and form of
consideration and other terms and conditions of payment offered by the proposed
transferee. The tag-along rights provided by this Section 3.5 must be exercised
by each Tagging Stockholder within 7 days following receipt of the notice
required by the preceding sentence, by delivery of a written notice to
Blackstone indicating such Tagging Stockholder's desire to exercise its rights
and specifying the number of shares of Common Stock it desires to sell.
3.6 Public Offerings, etc. The provisions of Sections 3.5 and 3.7 shall
not be applicable to offers and sales of Securities in a Public Offering or
pursuant to Rule 144 under the Securities Act.
3.7 Drag-Along Rights. So long as this Agreement shall remain in
effect, if any of Blackstone and its Affiliates receives an offer from a Third
Party to purchase any outstanding shares of Common Stock owned by Blackstone and
its Affiliates and such offer is accepted by Blackstone, then each Stockholder
hereby agrees that it will Transfer a number of shares of Common Stock owned by
it to such Third Party up to the product (rounded up to the nearest whole
number) of (i) the quotient determined by dividing (A) the aggregate number of
shares of Common Stock beneficially owned on a fully diluted basis by such
Stockholder by (B) the aggregate number of shares of Common Stock beneficially
owned on a fully diluted basis by Blackstone and all such Stockholders and (ii)
the total number of shares of Common Stock proposed to be Transferred to the
transferee in the contemplated Transfer, at the same price per share of Common
Stock and upon the same terms and conditions of the offer so accepted by
Blackstone; including making the same representations, warranties, covenants,
indemnities and agreements that Blackstone agrees to make (except that, in the
case of representations and warranties pertaining specifically to Blackstone,
each other Stockholder shall make the comparable representations and warranties
pertaining specifically to itself); provided that all representations,
warranties and indemnities shall be made by Blackstone and such Stockholders
severally and not jointly and that the liability of Blackstone and such
Stockholders thereunder shall be borne by each such Stockholder on a pro rata
basis and be limited to the proceeds received by such Stockholder in such
Transfer.
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SECTION 4. REGISTRATION RIGHTS
4.1 Incidental Registration. The parties hereto agree that the BT
Investor and its Permitted Transferees shall have all of the rights and
obligations of a "Holder" under the Registration Rights Agreement (other than
those set forth in Section 2 thereof) and that any shares of Common Stock owned
by the BT Investor and its Permitted Transferees shall constitute "Registrable
Securities" under the Registration Rights Agreement (other than for purposes of
Section 2 thereof); provided that, notwithstanding anything to the contrary in
this Agreement or the Registration Rights Agreement, the BT Investor and its
Permitted Transferees shall not sell any shares of Common Stock in any
transaction unless Blackstone is selling its shares of Common Stock in such
transaction.
SECTION 5. VOTING AGREEMENTS
5.1 Election of Directors. (a) The BT Investor and its Permitted
Transferees hereby agree that, so long as this Agreement shall remain in effect,
such Stockholder will vote all of the voting Securities owned or held of record
by it so as to elect and, during such period, to continue in office a Board of
Directors of the Company and each subsidiary of the Company, every (and solely)
designees of Blackstone and its Permitted Transferees.
(b) If at any time while this Agreement shall remain in effect
Blackstone shall notify the other Stockholders of its desire to remove, with or
without cause, any director of the Company or any of its Subsidiaries previously
designated by it (or its Permitted Transferees), each Stockholder shall vote all
of the voting Securities owned or held of record by it so as to remove such
director.
5.2 Other Voting Matters. (a) The BT Investor and its Permitted
Transferees hereby agrees that, so long as this Agreement shall remain in
effect, such Stockholder will vote all of the Securities owned or held of record
by it, either in person or by proxy, whether at a meeting of stockholders or by
executing a written consent, to ratify, approve and adopt any and all actions
adopted or approved by the Board of Directors of the Company.
(b) In order to effectuate the provisions of Sections 3.1 and 3.2
hereof, each of the BT Investor and its Permitted Transferees hereby grants to
Blackstone a proxy to vote at any annual or special meeting of stockholders of
the Company, or to take action by written consent in lieu of such meeting with
respect to, or to otherwise take action in respect of, all of the Securities
owned or held of record by such Stockholders in connection with the matters set
forth in Sections 3.1 and 3.2 hereof in accordance with the provisions of
Sections 3.1 and 3.2 hereof. Each of the proxies granted hereby is irrevocable
and is coupled with an interest.
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SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
6.1 Representations and Warranties of BMP. BMP represents and warrants
to the BT Investor as follows:
(a) Each of the parties hereto (other than the BT Investor) (each a
"BMP Party") is a corporation or limited partnership duly organized, validly
existing and in good standing under the laws of the state of its organization
and has all requisite power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. The execution and delivery by the BMP
Parties of this Agreement, the performance by the BMP Parties of its obligations
hereunder, and the consummation by the BMP Parties of the transactions
contemplated hereby have been duly authorized by all requisite action. This
Agreement has been duly executed and delivered by each BMP Party and, assuming
the due authorization, execution and delivery thereof by the BT Investor,
constitutes a legal, valid and binding obligation of such BMP Party, enforceable
against such BMP Party in accordance to its terms.
(b) The BMP Stock purchased hereunder is duly authorized, validly
issued, fully paid and nonassessable. Upon consummation of the transactions
contemplated hereby, the BT Investor will acquire valid title to the BMP Stock
purchased hereunder.
(c) The execution, delivery and performance by each BMP Party of this
Agreement and the consummation by such BMP Party of the transactions
contemplated hereby do not and will not, with or without the giving of notice or
the passage of time or both, (i) violate the provisions of any law, rule or
regulation applicable to such BMP Party or its properties or assets; (ii)
violate the provisions of the certificate of incorporation, bylaws or other
organizational documents of such BMP Party; or (iii) violate any judgment,
decree, order or award of any court, governmental or quasi-governmental agency
or arbitrator applicable to such BMP Party or its properties or assets.
(d) No consent, approval, exemption or authorization is required to be
obtained from, no notice is required to be given to and no filing is required to
be obtained from any third party (including, without limitation, governmental
and quasi-governmental agencies, authorities and instrumentalities of competent
jurisdiction) by any BMP Party, in order (i) for this Agreement to constitute a
legal, valid and binding obligation of such BMP Party or (ii) to authorize or
permit the consummation by such BMP Party of the sale of the BMP Stock purchased
hereunder.
6.2 Representations and Warranties of the BT Investor. The BT Investor
represents and warrants to the BMP Parties as follows:
(a) The BT Investor is a corporation duly organized, validly existing
and in good standing under the laws of the state of its organization and has all
requisite power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery of this Agreement,
the performance by the BT Investor of its obligations hereunder and the
consummation by the BT Investor of the transactions contemplated hereby have
been duly authorized by all requisite action on the part of the BT Investor.
This Agreement has been duly executed and delivered by the BT Investor and,
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assuming the due authorization, execution and delivery thereof by the BMP
Parties, constitutes a legal, valid and binding obligation of the BT Investor,
enforceable against the BT Investor in accordance with its terms.
(b) The execution, delivery and performance by the BT Investor of this
Agreement and the consummation by the BT Investor of the transactions
contemplated hereby do not and will not, with or without the giving of notice or
the passage of time or both, (i) violate the provisions of any law, rule or
regulation applicable to the BT Investor or its properties or assets; (ii)
violate the provisions of the certificate of incorporation, by-laws or other
organizational documents of the BT Investor; (iii) violate any judgment, decree,
order or award of any court, governmental or quasi-governmental agency or
arbitrator applicable to the BT Investor or its properties or assets.
(c) No consent, approval, exemption or authorization is required to be
obtained from, no notice is required to be given to, and no filing is required
to be obtained from, any third party (including, without limitation,
governmental and quasi-governmental agencies, authorities and instrumentalities
of competent jurisdiction) by the BT Investor, in order (i) for this Agreement
to constitute a legal, valid and binding obligation of the BT Investor or (ii)
to authorize or permit the consummation by the BT Investor of the purchase of
the BMP Stock sold hereunder.
(d) The BT Investor is acquiring the BMP Stock purchased hereunder for
investment solely for its own account and not with a view to, or for resale in
connection with, the distribution or other disposition thereof.
6.3 Certain Agreements. Each party hereto agrees that such party will
not take any action which is reasonably likely to cause the shares of Common
Stock purchased hereunder and owned by the BT Investor to exceed 5% of the
outstanding shares of Common Stock without giving reasonable prior notice to the
other parties and reasonably cooperating with the other parties so that such
ownership of Common Stock by the BT Investor will not contravene any applicable
federal banking laws or regulations existing on the date hereof.
SECTION 7. MISCELLANEOUS
7.1 Additional Securities Subject to Agreement. Each Stockholder agrees
that any other Securities which it shall hereafter acquire by means of the IPO
Reorganization or a stock split, stock dividend, distribution, exercise of stock
options, or otherwise shall be subject to the provisions of this Agreement to
the same extent as if held on the date hereof.
7.2 Termination. This Agreement shall terminate, and thereby become
null and void, as to any particular Securities, on the date on which they are
sold in a Public Offering or are sold pursuant to Rule 144 under the Securities
Act (unless such Securities are reacquired by a Stockholder).
7.3 Injunctive Relief. The Stockholders and their Permitted Transferees
acknowledge and agree that a violation of any of the terms of this Agreement
will cause the Stockholders and their Permitted Transferees irreparable injury
for which adequate remedy at law is not available. Accordingly, it is agreed
that each Stockholder and Permitted Transferee
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shall be entitled to an injunction, restraining order or other equitable relief
to prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in addition to any other
remedy to which they may be entitled at law or equity.
7.4 Amendments. This Agreement may be amended only by a written
instrument signed the parties hereto.
7.5 Successors, Assigns and Transferees. The provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their Permitted Transferees and their respective successors, each of
which Permitted Transferees shall agree, in a writing in form and substance
satisfactory to the Company, to become a party hereto and be bound to the same
extent as its transferor hereby, provided that no Stockholder may assign to any
Permitted Transferee any of its rights hereunder other than in connection with a
Transfer to such Permitted Transferee of Securities in accordance with the
provisions of this Agreement.
7.6 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or when delivered by a
recognized courier or, in the case of telecopy notice, when received, addressed
as follows to the parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
if to Blackstone or the Company, to:
c/o The Blackstone Group L.P.
345 Park Avenue
31st Floor
New York, New York 10154
Attention: Howard A. Lipson
Telecopy: (212) 754-8703
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Wilson S. Neely, Esq.
Telecopy: (212) 455-2502
if to the BT Investor, to:
BT Capital Partners, Inc.
130 Liberty Street
New York, New York 10006
Attention: James M. Dworkin
Telecopy: (212) 250-7651
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with a copy to:
Paul, Hastings, Janofsky & Walker
399 Park Avenue
New York, New York
Attention: William Schwitter, Esq.
Telecopy: (212) 319-4090
7.7 Integration. This Agreement and the documents referred to herein or
delivered pursuant hereto, contain the entire understanding of the parties with
respect to the subject matter hereof and thereof. There are no agreements,
representations, warranties, covenants or undertakings with respect to the
subject matter hereof and thereof other than those expressly set forth herein
and therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
7.8 Severability. If one or more of the provisions, paragraphs, words,
clauses, phrases or sentences contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision,
paragraph, word, clause, phrase or sentence in every other respect and of the
remaining provisions, paragraphs, words, clauses, phrases or sentences hereof
shall not be in any way impaired, it being intended that all rights, powers and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
7.9 Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
7.10 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York without regard
to the conflicts of law principles thereof, except for matters directly within
the purview of the General Corporation Law of the State of Delaware (the
"DGCL"), which shall be governed by the DGCL.
7.11 Jurisdiction. Any action to enforce, which arises out of or in any
way relates to, any of the provisions of this Agreement may be brought and
prosecuted in such court or courts located within the State of New York as
provided by law; and the parties consent to the jurisdiction of such court or
courts located within the State of New York and to service of process by
registered mail, return receipt requested, or by any other manner provided by
New York law.
11
7.12 No Recourse. Notwithstanding anything that may be expressed or
implied in this Agreement, the parties hereto covenant, agree and acknowledge
that no recourse under this Agreement or any documents or instruments delivered
in connection with this Agreement shall be had against any current or future
director, officer, employee, general or limited partner, member, Affiliate,
agent or assignee of any party hereto or of any of the foregoing, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach to,
be imposed on or otherwise be incurred by any current or future director,
officer, employee, general or limited partner, member, Affiliate or assignee of
any party hereto or of any of the foregoing, as such for any obligation of any
party hereto under this Agreement or any documents or instruments delivered in
connection with this Agreement for any claim based on, in respect of or by
reason of such obligations or their creation.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement
or caused this Agreement to be executed on its behalf as of the date first
written above.
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.
By: Blackstone Management Associates III LLC,
its General Partner
By: /s/ Howard A. Lipson
--------------------------------------
Name: Howard A. Lipson
Title:
BLACKSTONE OFFSHORE CAPITAL PARTNERS
III L.P.
By: Blackstone Management Associates III LLC,
its General Partner
By: /s/ Howard A. Lipson
--------------------------------------
Name: Howard A. Lipson
Title:
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: Blackstone Management Associates III LLC,
its General Partner
By: /s/ Howard A. Lipson
--------------------------------------
Name: Howard A. Lipson
Title:
BMP/GRAHAM HOLDINGS CORPORATION
By: /s/ Simon Lonergan
-----------------------------------------------
Name: Simon Lonergan
Title:
GRAHAM PACKAGING HOLDINGS COMPANY
By: BCP/Graham Holdings LLC
By: /s/ Simon Lonergan
--------------------------------------
Name: Simon Lonergan
Title:
GPC CAPITAL CORP. II
By: /s/ Simon Lonergan
-----------------------------------------------
Name: Simon Lonergan
Title:
BT INVESTMENT PARTNERS, INC.
By: /s/ James M. Dworkin
-----------------------------------------------
Name: James M. Dworkin
Title: Managing Director