EX-10.9.(C) 46 dex109c.htm FORM OF NON QUALIFIED STOCK OPTION AGREEMENT - PERFORMANCE VESTING
Exhibit 10.9(c)
NON QUALIFIED STOCK OPTION AGREEMENT (this “Agreement”) dated as of , 2008, between WireCo World Group Ltd., a Cyprus limited company (the “Company”), and (the “Optionee”).
WHEREAS, the Company and the Optionee are executing an Adoption Agreement as of the date hereof.
Section 5. Qualifying Investor Partial Exit Events.
(a) Subject to Sections 4 and 14, upon the consummation of a Qualifying Investor Partial Exit Event (as defined below) that is not a Full Vesting Event, a portion of the then-unvested Options shall become Vested Options concurrently with the consummation of such event, such that the total percentage of Options that have become Vested Options immediately after the consummation of such Qualifying Investor Partial Exit Event shall, after taking into account any Options that had become Vested Options prior to such Qualifying Investor Partial Exit Event, be equal to the Liquidated Percentage (as defined below).
(i) “Disposition Percentage” means as of immediately following any Qualifying Investor Partial Exit Event, the percentage of the Investor Investment disposed of in the aggregate by the Investor subsequent to the Closing Date (excluding, for the avoidance of doubt, a sale, transfer, or other disposition within the affiliated group comprising the Investor).
(ii) “Investor Exit Event” shall mean any event pursuant to which the Investor disposes of a portion of the Investor Investment (excluding, for the avoidance of doubt, a sale, transfer, or other disposition within the affiliated group comprising the Investor), if immediately thereafter, the Investor has disposed of 60% or more of the Investor Investment (excluding, for the avoidance of doubt, a sale, transfer, or other disposition within the affiliated group comprising the Investor).
(iii) “Investor Investment” means direct or indirect investments in Shares or other capital stock of the Company made by the Investor on or after the Closing Date, but excluding any purchases or repurchases of Shares on any securities exchange or any national market system after an initial public offering.
(iv) “Liquidated Percentage” means, with respect to a Qualifying Investor Partial Exit Event, the percentage of the Investor Investment that has been liquidated for cash (including pursuant to a disposition of non-cash consideration acquired upon a disposition of a portion of the Investor Investment) as of immediately following the applicable Qualifying Investor Partial Exit Event.
(v) “Proportionate Investment” means at any time, an amount equal to the product of (i) the entire Investor Investment times (ii) the Disposition Percentage.
(vi) “Qualifying Investor Partial Exit Event” means an Investor Exit Event immediately following which the Investor has received a Total Return Amount at least equal to, or in excess of, 300% of the Proportionate Investment.
(vii) “Total Return Amount” means the aggregate amount of cash that has been received by the Investor as a return on the Investor Investment.
• | The Optionee is acquiring the Options and, if and when the Optionee exercises the Options, will acquire the Shares solely for the Optionee’s own account, for investment purposes only, and not with a view to or an intent to sell, or to offer for resale in connection with any unregistered distribution, all or any portion of the shares within the meaning of the Securities Act and/or any applicable state securities laws. |
• | The Optionee has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Options and the restrictions imposed on any Shares purchased upon exercise of the Options. The Optionee has been furnished with, and/or has access to, such information as he considers necessary or appropriate for deciding whether to exercise the Options and purchase the Shares. However, in evaluating the merits and risks of an investment in the Shares, the Optionee has and will rely only upon the advice of his own legal counsel, tax advisors, and/or investment advisors. |
• | The Optionee acknowledges that to the best of his knowledge the Option Price is not less than what the Board has determined to be the Fair Market Value of the Shares. |
• | The Optionee is aware that the Options may be of no practical value, that any value it may have depends on its vesting and exercisability as well as an increase in the Fair Market Value of the underlying Shares to an amount in excess of the Option Price, and that any investment in common shares of a private closely held corporation such as the Company is non-marketable, non-transferable and could require capital to be invested for an indefinite period of time, possibly without return, and at substantial risk of loss. |
• | The Optionee understands that any Shares acquired on exercise of the Options will be characterized as “restricted securities” under the federal securities laws, and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances, including in accordance with the conditions of Rule 144 promulgated under the Securities Act, as presently in effect. The Optionee acknowledges receiving a copy of Rule 144 promulgated under the Securities Act, as presently in effect, and represents that he is familiar with such rule, and understands the resale limitations imposed thereby and by the Securities Act and the applicable state securities law. |
• | The Optionee has read and understands the restrictions and limitations set forth in the Shareholders Agreement, the Plan and this Agreement. |
• | The Optionee has not relied upon any oral representation made to the Optionee relating to the Options or the purchase of the Shares on exercise of some or all of the Options or upon information presented in any promotional meeting or material relating to the Options or the Shares. |
• | The Optionee understands and acknowledges that, if and when he exercises the Options, (a) any certificate evidencing the Shares (or evidencing any other securities issued with respect thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or recapitalization) when issued shall bear any legends which may be required by applicable federal and state securities laws, and (b) except as otherwise provided under the Shareholders Agreement, the Company has no obligation to register the Shares or file any registration statement under federal or state securities laws. |
If to the Company, to it at:
If to the Company, to:
WireCo World Group Ltd.
Xxxxx Xxxxxx, 5
Xxxx/Xxxxxx 000
X.X. 0000, Xxxxxxx, Xxxxxx
Attn: Chief Executive Officer
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx & Partners LLC
000 Xxxxx Xxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Fax: (000) 000-0000
If to the Optionee, to the most recent address in the Company’s records; or to such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. Any such notice or other communication shall be deemed to have been received (a) in the case of personal delivery, on the date of such delivery (or if such date is not a business day, on the next business day after the date of delivery), (b) in the case of nationally-recognized overnight courier, on the next business day after the date sent, (c) in the case of telecopy transmission, when received (or if not sent on a business day, on the next business day after the date sent), and (d) in the case of mailing, on the third business day following that on which the piece of mail containing such communication is posted.
Section 13. Governing Law. This agreement will be governed by and construed in accordance with the laws of the state of New York, without giving effect to any choice or conflict of law provision or rule (whether of the state of New York or any other jurisdiction) that would cause the laws of any jurisdiction other than the state of New York to be applied. In furtherance of the foregoing, the internal law of the state of New York will control the interpretation and construction of this agreement, even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily apply.
dated [February 8, 2007]. Notwithstanding any other provision hereof, in the event of any violation by the Optionee of such covenants prior to the fifth anniversary of the Closing Date, the Company shall have the right to: (i) immediately cancel all outstanding Options, in exchange for no consideration; (ii) with respect to any Shares acquired upon an exercise of Options that occurred no earlier than six months prior to the date of Optionee’s Termination of Relationship (“Recent Shares”) that have not been disposed of by the Optionee, require the Optionee to return to the Company such Recent Shares in exchange for an amount per Recent Share equal to the Option Price paid by the Optionee with respect to such Recent Share; and/or (iii) with respect to any Recent Shares that have been disposed of by the Optionee, require the Optionee to pay to the Company an amount per Recent Share equal to the excess, if any, of (x) the amount (in cash or in the fair market value of other consideration received) realized by the Optionee upon such disposition over (y) the Option Price paid by the Optionee with respect to such Recent Share.
WIRECO WORLD GROUP, LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
OPTIONEE | ||||