EXHIBIT 10.10(C)
CONSOLIDATED CONTAINER HOLDINGS LLC
REPLACEMENT UNITS OPTION AGREEMENT
FOR OPTION ISSUED PURSUANT TO THE
FRANKLIN PLASTICS, INC.
1998 STOCK OPTION PLAN
THIS AGREEMENT (this "Agreement"), is made and entered into by and
between Consolidated Container Holdings LLC, a Delaware limited liability
company (the "Company"), and __________________ (the "Participant").
RECITALS
WHEREAS, the Company will acquire the assets and operations of Franklin
Plastics, Inc., a Delaware corporation ("Franklin") and its subsidiaries
pursuant to that certain Contribution and Merger Agreement dated as of April 29,
1999, by and among Suiza Foods Corporation, Franklin, the Suiza companies
identified therein, Vestar Packaging LLC, Reid Plastics Holdings, Inc., the Reid
companies identified therein, the Company and its subsidiaries identified
therein (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement and the transactions
contemplated thereby, the plastics packaging operations of Franklin will be
contributed or merged with and into the Company, and the Company (or its
subsidiaries) shall, after the consummation of such transactions, succeed to the
business of Franklin, and be the new employer of certain former employees of
Franklin;
WHEREAS, the Franklin 1998 Stock Option Plan (the "Franklin Plan") was
previously adopted by Franklin's Board of Directors, providing for the grant of
stock options to certain selected officers and key employees of Franklin or its
subsidiaries with respect to shares of common stock, $.01 par value, of Franklin
(the "Franklin Common Stock"), and options to purchase Franklin Common Stock
were previously issued to the Participant pursuant to that certain Stock Option
Agreement by and between Franklin and the Participant dated as of
___________________ (the "Prior Option Agreement") and pursuant to the Franklin
Plan;
WHEREAS, the Board of Franklin and the Management Committee of the
Company wish for the Participant to continue to enjoy the benefits provided by
the Prior Option Agreement, and therefore to replace the non-qualified stock
option to purchase Franklin Common Stock described in the Prior Option Agreement
with a replacement non-qualified option to purchase Units of the Company on the
terms described herein (the "Replacement Option"), such replacement to be
effective as of the date of closing of the transactions contemplated by the
Merger Agreement (the "Closing") and the Prior Option Agreement to terminate as
of the Closing Date;
WHEREAS, the Management Committee has deemed it in the best interests
of the Company to adopt, and has adopted, the Replacement Units Option Plan (the
"Replacement
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Plan") of the Company to attract and retain the executive officers and key
employees to whom stock options were previously issued pursuant to the Franklin
Plan, and to provide for the replacement of the option pursuant to the Prior
Option Agreement with the Replacement Option pursuant to this Agreement;
WHEREAS, the Participant wishes to terminate the Prior Option Agreement
and to accept in its place the Replacement Option described herein, such
termination and the Replacement Option to be effective as of the date of the
Closing, pursuant to the terms and conditions of the Replacement Plan;
WHEREAS, capitalized terms used in this Agreement and not otherwise
defined have the meanings ascribed to such terms in the Replacement Plan;
WHEREAS, the parties hereto desire to evidence in writing the terms and
conditions of the Replacement Option.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, and as an inducement to the
Participant to continue as an employee of the Company or its subsidiaries after
the Closing, and to promote the success of the business of the Company and its
subsidiaries, the parties hereby agree as follows:
1. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Appraised Value" of a Unit means the fair market value of
all of the outstanding Units divided by the number of outstanding Units, as
determined by agreement between the Company and the Participant; provided that
if the Company and the Participant cannot agree on such fair market value after
15 days, then such fair market value will be determined by an independent
appraiser, accountant or investment bank knowledgeable in the Company's field of
business (the "Appraiser") acceptable to the Company and the Participant. If the
parties cannot agree on an Appraiser within seven days, then the Company will
select one independent appraiser, accountant or investment bank and the
Participant will select one independent appraiser, accountant or investment
bank, and the two appraisers, accountants or investment banks will select the
Appraiser. The Appraiser's appraisal of the fair market value shall be delivered
within 30 days of the selection of such Appraiser and shall be conclusive and
binding on the Company and the Participant.
(b) "Cause" means the Participant's (i) material breach of
SECTION 12 of this Agreement, (ii) willful and intentional misconduct or gross
negligence in the performance of, or willful neglect of, the Participant's
duties, which has caused demonstrable and serious injury (monetary or otherwise)
to the Company, or (iii) conviction of, or plea of nolo contendere to, a felony;
provided, however, that no act or omission shall constitute "Cause" for purposes
of this Agreement unless the Chief Executive Officer or Management Committee of
the Company provides to the Participant (a) written notice clearly and fully
describing the particular acts or omissions which the Chief Executive Officer or
Management Committee reasonably believes in good faith constitutes "Cause" and
(b) an opportunity, within thirty (30) days following his receipt of such
notice, to meet in person with the Chief Executive Officer or Management
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Committee to explain or defend the alleged acts or omissions relied upon by the
Chief Executive Officer or the Board and, to the extent practicable, to cure
such acts or omissions. Further, no act or omission shall be considered as
"willful" or "intentional" if the Participant reasonably believed such acts or
omissions were in the best interests of the Company.
(c) "Change of Control" means (1) any "person" (as such term
is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) other than affiliates (as that term is defined in the Exchange
Act) of any of Reid Plastics Holdings, Inc., a Delaware corporation and
unitholder of the Company, Vestar Packaging LLC, a Delaware limited liability
company and unitholder of the Company, Suiza Foods Corporation, a Delaware
corporation or Franklin Plastics, Inc., a Delaware corporation and unitholder of
the Company (collectively, the "Company Parents"), becomes the "beneficial
owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's then outstanding securities;
or (2) the Company or any subsidiary of the Company shall merge with or
consolidate into any other entity other than an affiliate of the Company or one
of the Company Parents, other than a merger or consolidation which would result
in the holders of the voting securities of the Company outstanding immediately
prior thereto holding immediately thereafter securities representing more than
fifty percent (50%) of the combined voting power of the voting securities of the
Company or such surviving entity (or its ultimate parent, if applicable)
outstanding immediately after such merger or consolidation; or (3) the
unitholders of the Company approve a plan of complete liquidation of the Company
or such a plan is commenced; or (4) any merger, consolidation, sale of units or
other transaction or series of related transactions, that results in the Company
Parents, together, owning an aggregate of less than 50% of the combined voting
power of the outstanding securities of the Company, other than an underwritten
public offering for cash of the Company's securities or a distribution of the
Company's securities held by any Company Parent; or (5) any sale of all or
substantially all of the assets of the Company other than to an affiliate of the
Company or a Company Parent, unless the Company Parents, collectively, own at
least 50% of the combined voting power of the purchaser.
(d) "Confidential Information" means all information, whether
oral or written, previously or hereafter developed, acquired or used by the
Company, its subsidiaries, the Company Parents or any Subsidiary of a Company
Parent, and relating to the business of the Company, a Company Parent or any of
their subsidiaries that is not generally known to others in the Company's area
of business, including without limitation trade secrets, methods or practices
developed by the Company, the Company Parents or any of their subsidiaries,
financial results or plans, customer or client lists, personnel information,
information relating to negotiations with clients or prospective clients,
proprietary software, databases, programming or data transmission methods, or
copyrighted materials (including, without limitation, brochures, layouts,
letters, art work, copy, photographs or illustrations). It is expressly
understood that the foregoing list shall be illustrative only and is not
intended to be an exclusive or exhaustive list of "Confidential Information."
(e) "Disability" means any mental or physical impairment that
prevents the Participant from performing the essential functions of his position
with or without reasonable
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accommodation as determined by a physician mutually agreeable to the Participant
and the Company.
(f) "Fair Market Value" has the meaning assigned to such
phrase in the Replacement Plan; provided that, if (i) there is no reported price
information for the Units on a national stock exchange or automated trading
system, and (ii) within 15 days after receipt of the Management Committee's
determination of Fair Market Value in accordance with the Replacement Plan, the
Participant notifies the Company in writing that he or she believes such
determination is not consistent with the actual fair market value of the Units,
then the Fair Market Value of the Units will instead equal the Appraised Value.
(g) "Good Reason" means any of the following events occurring,
without the Participant's prior written consent specifically referring to this
Agreement, within three (3) years following a Change of Control: (A) any
reduction in the amount of the Participant's annual salary or aggregate
incentive compensation opportunities, (B) any significant reduction in the
aggregate value of the Participant's benefits as in effect from time to time
(unless such reduction is pursuant to a general change in benefits applicable to
all similarly situated employees of the Company and its affiliates), (C) the
demotion of Participant from his position as of the date of this Agreement or
any significant reduction in the nature or status of Participant's duties or
responsibilities, or (D) any material and willful breach by the Company of any
provision of this Agreement or any written employment agreement with the
Participant; provided, however, that the occurrence of any of the events
described in (A), (B), (C) and (D) above will not constitute "Good Reason"
unless the Participant gives the Company written notice, within ninety (90)
calendar days after the Participant knew or should have known of the occurrence
of any of such events, that such event constitutes Good Reason, and the Company
fails to cure the event within thirty (30) days after receipt of such notice.
2. GRANT OF REPLACEMENT OPTION. The Company hereby grants to the
Participant, upon the terms and subject to the conditions, limitations and
restrictions set forth in the Replacement Plan and in this Agreement, the
Replacement Option to acquire ________ Units, at an exercise price per Unit of
$_____________, effective as of the Closing. The Participant hereby accepts the
Replacement Option from the Company. Upon the Closing, the Prior Option
Agreement shall terminate. If the Closing does not occur, however, this
Agreement shall have no force or effect and the Prior Option Agreement shall
remain in full force and effect.
3. VESTING. The Units subject to the Replacement Option shall vest
ratably in three equal annual increments commencing on the first anniversary of
the award date of the Prior Option Agreement, which was _____________ (the
"Original Award Date"). Notwithstanding the preceding sentence, the Replacement
Option shall immediately vest in full as to all Units subject hereto upon the
earliest to occur of any of the following:
(i) termination of Participant's employment by the Company at any
time (other than for Cause);
(ii) termination of Participant's employment by Participant for
Good Reason or on account of Participant's death or
Disability; or
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(ii) a Change in Control.
4. EXERCISE. In order to exercise the Replacement Option with respect
to any vested portion, the Participant shall provide written notice to the
Company at its principal executive office. At the time of exercise, the
Participant shall pay to the Company the exercise price per share set forth in
SECTION 2 times the number of vested Units as to which the Replacement Option is
being exercised. The Participant shall make such payment in cash, check or at
the Company's option, by the delivery of Units having a Fair Market Value on the
date immediately preceding the exercise date equal to the aggregate exercise
price. If the Replacement Option is exercised in full, the Participant shall
surrender this Agreement to the Company for cancellation. If the Replacement
Option is exercised in part, the Participant shall surrender this Agreement to
the Company so that the Company may make appropriate notation hereon or cancel
this Agreement and issue a new agreement representing the unexercised portion of
the Replacement Option. Upon exercise of any Replacement Option, the number of
Units held by Franklin shall be reduced on the books and records of the Company,
so that the Percentage Interests of the Other Members is the same as it was
prior to such exercise and the initial Capital Account of the Participant shall
be equal to the exercise price paid upon any such exercise.
If the Units to be purchased are covered by an effective registration
statement under the Securities Act of 1933, as amended (the "Act"), the
Replacement Option may be exercised by a broker-dealer acting on behalf of the
Participant if (a) the broker-dealer has received from the Participant or the
Company a fully- and duly-endorsed agreement evidencing such option, together
with instructions signed by the Participant requesting the Company to deliver
the Units subject to such option to the broker-dealer on behalf of the
Participant and specifying the account into which such Units should be
deposited, (b) adequate provision has been made with respect to the payment of
any withholding taxes due upon such exercise, and (c) the broker-dealer and the
Participant have otherwise complied with Section 220.3(e)(4) of Regulation T, 12
CFR Part 220, or any successor provision.
5. WHO MAY EXERCISE. The Replacement Option shall be exercisable during
the lifetime of the Participant only by the Participant or any duly appointed
legal representative of the Participant (or, after his death, by the
Participant's designated beneficiaries or estate).
6. EXPIRATION OF REPLACEMENT OPTION. The Replacement Option shall
expire, and shall not be exercisable with respect to any vested portion as to
which the Replacement Option has not been exercised, on the first to occur of:
(a) the tenth anniversary of the Original Award Date; or (b) sixty (60) days
after the termination of the Participant's employment with the Company for any
reason. Except as expressly provided in Section 3(b), the Replacement Option
shall expire, with respect to any unvested portion, immediately upon the earlier
of the tenth anniversary of the Original Award Date or termination of the
Participant's employment with the Company for any reason.
7. CALL AND PUT RIGHTS.
(a) Immediately upon the termination of the Participant's
employment with the Company for any reason and for a period of ninety (90) days
following the date of such
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termination (the "Call Period"), the Company shall have the right (the "Call
Right") to purchase from the Participant, and to require the Participant to sell
all Units purchased by the Participant upon the exercise of Replacement Options
granted under the Replacement Plan (the "Purchased Units"). The Company may
exercise its Call Right by providing written notice to the Participant of such
exercise (the "Call Exercise Notice") at any time during the Call Period. The
purchase price for the unexercised vested portion of the Participant's
Replacement Option shall be determined by multiplying the number of Units
subject to the vested portion of the Replacement Option by the difference
between the Fair Market Value of the Units on the date of the Call Exercise
Notice and the Exercise Price. The purchase price for the Purchased Units shall
be determined by multiplying the number of Purchased Units by the Fair Market
Value of the Units on the date of the Call Exercise Notice.
(b) At any time before the sale of Units to the Participant
upon exercise of the Replacement Option is registered on an effective
registration statement on Form S-8 or any successor form (the "Put Period"), the
Participant shall have the right (the "Put Right") to sell to the Company, and
to require the Company to purchase with respect to any exercise of the Put Right
that occurs during the period of sixty (60) days following termination of
Participant's employment with the Company for any reason (other than Cause), all
of the Purchased Units and all of the unexercised vested portion of the
Participant's Replacement Option. The Participant may exercise his Put Right by
providing written notice to the Company of such exercise (the "Put Exercise
Notice") at any time during the Put Period. The purchase price for the
unexercised vested portion of the Participant's Replacement Option shall be
determined by multiplying the number of Units subject to the vested portion of
the Replacement Option by the difference between the Fair Market Value of the
Units on the date of the Put Exercise Notice and the Exercise Price. The
purchase price for the Purchased Units shall be determined by multiplying the
number of Purchased Units by the Fair Market Value of the Units on the date of
the Put Exercise Notice. In addition, if during the Put Period the Company
achieves a ratio of its outstanding indebtedness to its trailing twelve-month
EBITDA of 3:1, based upon its quarterly financial statements, the Participant
shall have the right to exercise his Put Right by giving notice within sixty
(60) days after receiving notice from the Company of the achievement of such
ratio that, no later than 240 days after such notice from the Company, the
Participant will exercise the Put Right as to 20 percent of the aggregate number
of Units represented by the sum of the Purchased Units and the number of Units
represented by the unexercised portion (whether vested or unvested) of the
Replacement Options; PROVIDED, HOWEVER, that the Company shall calculate any
such ratio on a pro forma basis after taking into account any significant asset
sales which have occurred prior to that date. Such Put Right may only be
exercised with respect to Purchased Units which have been owned by the
Participant for at least six (6) months and the price for such Units shall be
determined as of the date of the quarterly financial statements which were used
to determine the achievement of the above ratio.
Except as otherwise provided in the preceding paragraph, if
either the Call Right or the Put Right is exercised, the closing of the purchase
and sale required thereby will occur on the tenth business day following
delivery of the applicable exercise notice or, if later, on the fifth business
day following determination of the Fair Market Value. At such closing, the
Participant will deliver the original of this Replacement Option and
certificates evidencing any Purchased Units, duly endorsed for transfer, in each
case free and clear of any liens and encumbrances, and
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the Company will deliver the applicable purchase price in immediately available
funds. The Call Right and the Put Right set forth in this SECTION 7 shall
terminate on the date that the Units commence trading on a national securities
exchange or the NASDAQ Stock Market.
8. TAX WITHHOLDING. Any provision of this Agreement to the contrary
notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that it is required by law or
regulation of any governmental authority, federal, state or local, domestic or
foreign, to withhold in connection with any of the Units subject hereto.
9. DILUTION. In the event that each of the outstanding Units (other
than Units held by dissenting unitholders) shall be changed into or exchanged
for a different number or kind of equity interests of the Company or of another
company (whether by reason of merger, consolidation, recapitalization,
reclassification, split-up, combination of shares, Units or other equity
interests, as the case may be, or otherwise), or in the event that a unit split,
unit dividend, dividend (other than a dividend paid in respect of federal, state
or other taxes) payment or "spin-off" of units, stock or other equity interest
in a subsidiary of the Company shall have occurred (other than any adjustment in
any Capital Account that is required to reflect either the exercise of any right
to repurchase Units or any indemnification obligation), then there shall be
substituted for each Unit then subject to Replacement Options or available for
Replacement Options the number and kind of units, shares of stock or other
equity interests, as the case may be, into which each outstanding Unit (other
than units, shares or other equity interests held by dissenting stockholders)
shall be so changed or exchanged, or the number of Units or other securities as
is equitably required in the event of a Unit split, Unit dividend or "spin-off,"
together with an appropriate adjustment of the Exercise Price.
10. TRANSFER OF REPLACEMENT OPTION. Without the prior written consent
of the Company, the Participant shall not, directly or indirectly, sell,
transfer, pledge, encumber or hypothecate ("Transfer") any portion of the
Replacement Option or the rights and privileges pertaining thereto; provided,
however, that the Participant may transfer any vested portion of the Replacement
Option, without consideration, to (a) the spouse, children or grandchildren of
the Participant ("Immediate Family Members"), (b) a trust or trusts, or to a
guardian under the Uniform Gift to Minors Act, for the exclusive benefit of such
Immediate Family Members, or (c) a partnership or other entity in which such
Immediate Family Members are the only partners, provided that subsequent
transfers of transferred Replacement Options shall be prohibited except by will,
the laws of descent and distribution or pursuant to a domestic relations order
issued by a court of competent jurisdiction. In addition, the Participant shall
not, directly or indirectly, Transfer any Units acquired upon exercise of the
Replacement Option other than (i) pursuant to an effective registration
statement filed under the Act or (ii) pursuant to an exemption from the
registration requirements of the Act. Any permitted transferee to whom the
Participant shall Transfer the Replacement Option shall agree to be bound by
this Agreement, and the term "Participant" in this Agreement shall be deemed to
refer to the transferee with respect to the transferred Replacement Options,
except that the provisions hereof related to termination of employment and the
obligation to pay withholding taxes shall continue to apply to the original
Participant. Neither the Replacement Option nor the underlying Units is liable
for or subject to,
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in whole or in part, the debts, contracts, liabilities or torts of the
Participant, nor shall they be subject to garnishment, attachment, execution,
levy or other legal or equitable process.
11. CERTAIN LEGAL RESTRICTIONS. The Company shall not be obligated to
sell or issue any Units upon the exercise of the Replacement Option or otherwise
unless the issuance and delivery of such Units shall comply with all relevant
provisions of law and other legal requirements including, without limitation,
any applicable federal or state securities laws and the requirements of any
stock exchange upon which Units may then be listed. As a condition to the
exercise of the Replacement Option or the sale by the Company of any additional
Units to the Participant, the Company may require the Participant to make such
representations and warranties as may be necessary to assure the availability of
an exemption from the registration requirements of applicable federal or state
securities laws. The Company shall not be liable for refusing to sell or issue
any Units if the Company cannot obtain authority from the appropriate regulatory
bodies deemed by the Company to be necessary to lawfully sell or issue such
Units. In addition, the Company shall have no obligation to the Participant,
express or implied, to list, register or otherwise qualify any of the
Participant's Units. The Units issued upon the exercise of the Replacement
Option may not be transferred except in accordance with applicable federal or
state securities laws. At the Company's option, the certificate evidencing Units
issued to the Participant may be legended as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE APPLICABLE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED OR PLEDGED EXCEPT IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT
AND THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
12. CERTAIN COVENANTS OF PARTICIPANT.
(a) COVENANT NOT TO COMPETE. In consideration of the grant of
the Replacement Option to the Participant hereunder, the Participant shall not
during the term of this Agreement and for a period of two (2) years after the
termination of the Participant's employment with the Company for any reason,
directly or indirectly, engage (whether as owner, partner, unitholder, joint
venturer, manager or investor) in any business that competes, directly or
indirectly, with the Company within any territory or jurisdiction in which the
Company, its subsidiaries or affiliates are, at the time of such termination,
then conducting business (provided that the foregoing restrictions shall not
restrict the Participant from owning or acquiring one percent (1%) or less of
the outstanding voting securities of a public company), provided that the
foregoing restriction will terminate immediately if the Participant's employment
with the Company is terminated by the Company without Cause or by the
Participant for Good Reason.
(b) PROTECTION OF CONFIDENTIAL INFORMATION. The Participant
agrees that he will not at any time during or following his employment with the
Company, without the Company's prior written consent, divulge any Confidential
Information to any other person or entity or use any Confidential Information
for his own benefit. Upon termination of employment, for any
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reason whatsoever, regardless of whether either party may be at fault, the
Participant will return to the Company all physical Confidential Information in
the Participant's possession.
(c) NON-SOLICITATION OF EMPLOYEES. The Participant agrees, for
so long as he remains employed by the Company and for a period of two (2) years
after the termination of the Participant's employment with the Company for any
reason, that the Participant will not, either for his own account or on behalf
of any other person or entity, solicit, suggest or request that any other person
employed by the Company or one of its affiliates leave such employment for the
purpose of becoming employed by the Participant or any other person or entity.
13. REPLACEMENT PLAN INCORPORATED. The Participant accepts the
Replacement Option subject to all the provisions of the Replacement Plan, which
are incorporated into this Agreement, including the provisions that authorize
the Management Committee to administer and interpret the Replacement Plan and
which provide that the Management Committee's decisions, determinations and
interpretations with respect to the Replacement Plan are final and conclusive on
all persons affected thereby. Except as otherwise set forth in this Agreement,
terms defined in the Replacement Plan have the same meanings herein.
14. MISCELLANEOUS.
(a) The Replacement Option is intended to be a non-qualified
option under applicable tax laws, and it is not to be characterized or treated
as an incentive option under such laws.
(b) The granting of the Replacement Option shall impose no
obligation upon the Participant to exercise the Replacement Option or any part
thereof. Nothing contained in this Agreement shall affect the right of the
Company to terminate the Participant at any time, with or without cause, or
shall be deemed to create any rights to employment on the part of the
Participant.
(c) The rights and obligations arising under this Agreement
are not intended to and do not affect the employment relationship that otherwise
exists between the Company and the Participant, whether such employment
relationship is at will or defined by an employment contract. Moreover, this
Agreement is not intended to and does not amend any existing employment contract
between the Company and the Participant; to the extent there is a conflict
between this Agreement and such an employment contract, the employment contract
shall govern and take priority.
(d) Neither the Participant nor any person claiming under or
through the Participant shall be or shall have any of the rights or privileges
of a unitholder of the Company in respect of any of the Units issuable upon the
exercise of the Replacement Option herein unless and until certificates
representing such Units shall have been issued and delivered to the Participant
or such Participant's agent.
(e) Any notice to be given to the Company under the terms of
this Agreement or any delivery of the Replacement Option to the Company shall be
addressed to the Company at
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its principal executive offices, and any notice to be given to the Participant
shall be addressed to the Participant at the address set forth beneath his or
her signature hereto, or at such other address for a party as such party may
hereafter designate in writing to the other. Any such notice shall be deemed to
have been duly given if mailed, postage prepaid, addressed as aforesaid.
(f) Subject to the limitations in this Agreement on the
transferability by the Participant of the Replacement Option and any Units, this
Agreement shall be binding upon and inure to the benefit of the representatives,
executors, successors or beneficiaries of the parties hereto.
(g) THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND THE UNITED
STATES, AS APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
(h) If any provision of this Agreement is declared or found to
be illegal, unenforceable or void, in whole or in part, then the parties shall
be relieved of all obligations arising under such provision, but only to the
extent that it is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
(i) All section titles and captions in this Agreement are for
convenience only, shall not be deemed part of this Agreement, and in no way
shall define, limit, extend or describe the scope or intent of any provisions of
this Agreement.
(j) The parties shall execute all documents, provide all
information, and take or refrain from taking all actions as may be necessary or
appropriate to achieve the purposes of this Agreement.
(k) This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
(l) No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
(m) This Agreement may be executed in counterparts, all of
which together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart.
(n) At any time and from time to time the Management Committee
may execute an instrument providing for modification, extension, or renewal of
any outstanding option, provided that no such modification, extension or renewal
shall (i) impair the Replacement
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Option in any respect without the consent of the holder of the Replacement
Option or (ii) conflict with the provisions of Rule 16b-3 (if such rule is
applicable). Except as provided in the preceding sentence, no supplement,
modification or amendment of this Agreement or waiver of any provision of this
Agreement shall be binding unless executed in writing by all parties to this
Agreement. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provision of this Agreement
(regardless of whether similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
(o) In addition to all other rights or remedies available at
law or in equity, the Company shall be entitled to injunctive and other
equitable relief to prevent or enjoin any violation of the provisions of this
Agreement.
(p) Where applicable, any reference to the "Company" shall be
deemed to include the Company's subsidiaries or other affiliates.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CONSOLIDATED CONTAINER HOLDINGS LLC
---------------------------------
By:
Name:
Title:
PARTICIPANT:
---------------------------------
Address:
Fax: