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INTERNATIONAL WIRE HOLDING COMPANY
NONSTATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into between
International Wire Holding Company, a Delaware corporation ("Holdings"), and
the undersigned (the "Holder") in connection with the grant of an Option
(hereinafter defined) under the INTERNATIONAL WIRE HOLDING COMPANY 1995 STOCK
OPTION PLAN (the "Plan").
W I T N E S S E T H:
WHEREAS, the Holder is an employee of Holdings or a subsidiary
corporation thereof (subsidiary corporations sometimes referred to herein as
"Related Entities"; Holdings and the Related Entities are collectively referred
to herein as the "Corporation") in a key position or is an officer and/or
director of the Corporation and Holdings desires to grant the Holder an Option
through the Plan to purchase shares of Stock (hereinafter defined) of Holdings
and Holder desires to accept the Option based upon all of the terms, conditions
and covenants, including but not limited to, Holder agreeing to
confidentiality, non-competition and non-solicitation of employees of the
Corporation.
NOW, THEREFORE, in consideration of these premises, the parties agree
that the following shall constitute the agreement between the Corporation and
the Holder:
1. DEFINITIONS. For purpose of this Agreement, the following
terms shall have the meanings specified below:
1.1 "Board of Directors" shall mean the board of directors of
Holdings.
1.2 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.3 "Committee" shall mean the committee appointed pursuant to
Section 2 of the Plan or the Board of Directors, if no committee is appointed.
1.4 "Confidential Information" shall mean information disclosed to
or known by the Holder as a direct or indirect consequence of or through the
employment about the Corporation or its respective businesses, products,
practices, customers and suppliers. However, Confidential Information shall
not include under any circumstances any information with respect to the
foregoing matters which is (i) available to the public from a source other than
Holder, (ii) released in writing by the Corporation to the public or
intentionally to persons who are not under a similar obligation of
confidentiality to the Corporation and who are not parties to this Agreement or
a similar agreement, (iii) obtained by Holder from a third party not under a
similar obligation of confidentiality to the Corporation, (iv) required to be
disclosed by any court process or any government or agency or department of any
government, or (v) the subject of a written waiver executed by the Corporation
for the benefit of Holder.
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1.5 "Disability" shall be construed under the appropriate
provisions of the long-term disability plan maintained for the benefit of
employees of the Corporation who are regularly employed on a salaried basis.
The determination of a Holder's Disability, and the date of its commencement,
shall be determined in good faith solely by the Committee.
1.6 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
1.7 "Fair Market Value" shall mean, if the Stock is traded on one
or more established markets or exchanges, the average of the opening and
closing prices of the Stock in the primary market or exchange on which the
Stock is traded, and if the Stock is not so traded or the Stock does not trade
on the relevant date, the value as determined in good faith by the Board of
Directors.
1.8 "Securities Act" shall mean the Securities Act of 1933, as
amended.
1.9 "Stock" shall mean Holdings' authorized par value $0.01 per
share Common Stock together with any other securities with respect to which
Options granted hereunder may become exercisable.
2. GRANT OF NONSTATUTORY OPTION. Subject to the terms and
conditions set forth herein, Holdings grants to the Holder an Option (the
"Option") to purchase from Holdings at a price per share (the "Exercise Price")
the number of shares of Stock (the "Option Shares") as both are set out on the
final page hereof subject to adjustments as provided in Paragraph 9 hereof.
The Option is not intended to be an incentive option within the meaning of
Section 422A of the Code.
3. NOTICE OF EXERCISE. This Option may be exercised in
accordance with Paragraph 8, to purchase all or a portion of the applicable
number of Option Shares exercisable by written notice to Holdings as provided
in Paragraph 12, which notice shall:
(a) specify the number of shares of Stock to be purchased at the
Exercise Price;
(b) if the person exercising this Nonstatutory Option is not the
named Holder, contain or be accompanied by evidence satisfactory to the
Committee of such person's right to exercise this Option; and
(c) be accompanied by (i) payment in full of the Exercise Price
in the form of a certified or cashier's check payable to the order of Holdings,
(ii) with the Committee's approval, a promissory note for the full Exercise
Price, (iii) with the Committee's approval, payment in the form of shares of
Stock owned by the Holder which are of at least equal value to the aggregate
exercise price payable in connection with such exercise, (iv) with the
Committee's approval, a share or shares of Stock owned by the Holder and/or
surrendered for actual or deemed multiple exchanges of shares of Option Shares,
or (v) with the Committee's approval, a combination of any of (i) - (iv). The
Committee may grant or withhold its approval under any or all of the foregoing
in its sole and absolute discretion.
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4. INVESTMENT LETTER. Unless there is in effect a registration
statement under the Securities Act, with respect to the issuance of the Option
Shares (and, if required, there is available for delivery a prospectus meeting
the requirements of Section 10(a)(3) of the Securities Act), the Holder (or, in
the event of his death, the person exercising the Option) shall, as a condition
to his right to exercise the Option, deliver to Holdings an agreement or
certificate containing such representations, warranties, and covenants as
Holdings may deem necessary or appropriate to ensure that the issuance of
shares of Stock pursuant to such exercise is not required to be registered
under the Securities Act or any applicable state securities law. It is
understood and agreed that under no circumstance shall Holdings be obligated to
file any registration statement under the Securities Act or any applicable
state securities law to permit exercise of the Option or to issue any Stock in
violation of the Securities Act or any applicable state securities law.
5. TRANSFER AND EXERCISE OF NONSTATUTORY OPTION. The Option is
not transferable by the Holder otherwise than by will or the laws of descent
and distribution, and is exercisable, during the Holder's lifetime, only by the
Holder. The Option may not be assigned, transferred (except by will or the
laws of descent and distribution), pledged, or hypothecated in any way (whether
by operation of law or otherwise) and shall not be subject to execution,
attachment, or similar proceeding. Any attempted assignment, transfer, pledge,
hypothecation, or other disposition of the Option, contrary to the provisions
hereof, and the levy of any attachment or similar proceeding upon the Option,
shall be null and void and without effect.
6. STATUS OF HOLDER. This Agreement is not a contract of
employment and the terms of the Holder's employment shall not be affected
hereby or by any agreement referred to herein except to the extent specifically
so provided herein or therein. Nothing herein shall be construed to impose any
obligation on the Corporation to continue the Holder's employment. The Holder
shall not be deemed a stockholder of Holdings with respect to any of the shares
of Stock subject to this Option, except to the extent that such shares shall
have been purchased and issued. Holdings shall not be required to issue or
transfer any certificates for shares of Stock purchased upon exercise of this
Option until there is compliance with all applicable requirements of law and
this Agreement.
7. NO EFFECT ON CAPITAL STRUCTURE. This Option shall not affect
the right of Holdings to reclassify, recapitalize or otherwise change its
capital or debt structure or to merge, consolidate, convey any or all of its
assets, dissolve, liquidate, windup, or otherwise reorganize and, by acceptance
of this Agreement, Holder agrees that Holder has no standing before any court
to object to or contest any such action.
8. CONDITIONS AND SCHEDULE FOR EXERCISE. Except as otherwise
provided herein, all options shall expire no later than ten (10) years from the
date of this Agreement, which ten (10) year period is the term of this
Agreement. Subject to the provisions of Paragraph 9, Holder shall be entitled
to exercise the options granted herein as follows: (a) twenty percent (20%) of
the Option Shares may be exercised on or after the first anniversary date of
this Agreement, and (b) thereafter, an additional twenty percent (20%) of the
Option Shares shall become exercisable upon or after each of the next four (4)
anniversary dates of this Agreement. Notwithstanding the
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provisions of the immediately preceding sentence, (a) all Option Shares shall
become exercisable immediately prior to a change of Control (as defined in the
Plan) and (b) in the event of the death or determination of Disability of
Holder, an additional twenty percent (20%) of the Option Shares (or such lesser
number as to cause the total shares subject to exercise not to exceed the total
Option Shares) shall become exercisable as of or after the date of death or
date of Disability. There shall not be any pro-rata rating of exercisability
between anniversary dates.
All other provisions of this Agreement to the contrary
notwithstanding, in the event of the termination of Holder's employment with
the Corporation (other than as a result of Holder's death or Disability, or in
the event of termination of Holder's employment without good cause (as defined
in the Plan) or upon retirement (with the Corporation's prior written
consent)), all rights under this Agreement and the Option shall terminate and
shall thereupon be null and void effective upon such termination; provided
however, any shares of Stock obtained through exercise prior to such effective
date in accordance with the terms of this Agreement shall remain the sole and
absolute property of the Holder subject to the Repurchase Right set forth in
Section 19.
In the event of the termination of Holder's employment with the
Corporation as a result of Holder's death or Disability, or in the event of the
termination of Holder's employment without good cause or upon retirement (with
the Corporation's prior written consent), all rights under this Agreement and
the Option shall terminate and shall be null and void effective thirty (30)
days after such termination of employment (during such thirty (30) day period,
Holder shall have the right to exercise Holder's Option with respect to all or
any part of the shares of Stock which such Holder was entitled to purchase
immediately prior to the date of such termination of employment); provided
however any shares of Stock obtained through exercise prior to such effective
date of termination of employment in accordance with the terms of this
Agreement shall remain the sole and absolute property of the Holder.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER, ETC. AND
ACCELERATION OF EXERCISABILITY. In the event that, by reason of any merger,
consolidation, combination, liquidation, reorganization, recapitalization,
stock divided, stock split, split-up, split-off, spin-off, combination of
shares, exchange of shares or other like change in capital structure of
Holdings (collectively, a "Reorganization"), the Stock is substituted,
combined, or changed into any cash, property, or other securities, or the
shares of Stock are changed into a greater or lesser number of shares of Stock,
the number and/or kind of shares and/or, interests subject to an Option and the
Exercise Price or value thereof shall be appropriately adjusted by the
Committee to give appropriate effect to such Reorganization. Any fractional
shares or interests resulting from such adjustment shall be eliminated.
All of the provisions of this Paragraph to the contrary not
withstanding, Holdings shall have the right to grant stock appreciation right
agreements, to issue additional stock options and/or to issue additional shares
of stock. If any such stock appreciation right agreements are granted,
additional stock options issued and/or additional shares of stock are issued to
others out of authorized but unissued shares, even though the result of such
stock appreciation right agreements granted, stock options issued and/or stock
issues dilute either the percentage of
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ownership of the Holder or the value per share of any stock or Option herein
granted and, in any such event, Holder's rights hereunder shall not be
increased in any way.
10. COMMITTEE AUTHORITY. Any question concerning the
interpretation of this Agreement, any adjustments required to be made under
Paragraph 9 of this Agreement, and any controversy which may arise under this
Agreement and/or any paragraph thereof shall be finally determined by the
Committee in its sole and absolute discretion.
11. PLAN CONTROLS. The terms of this Agreement are governed by
the terms of the Plan, which is made a part hereof as if fully set forth
herein, and in the case of any inconsistency between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall control.
12. NOTICE. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally delivered, sent by
mail or sent by overnight courier. Any notice required or permitted to be
delivered hereunder shall be deemed to be delivered on the date which it is
personally delivered, or, whether actually received or not, on the third
business day after it is deposited in the United States mail, certified or
registered, postage prepaid or next business day after it is sent by overnight
courier in each case, addressed to the person who is to receive it. Holdings
or Holder may change, at any time and from time to time, by written notice to
the other, the address previously so specified. Until changed in accordance
herewith, Holdings and the Holder specify their respective addresses as set
forth below the signature lines on the last page hereof.
13. CERTIFICATE RETENTION. In the event that Holder gives notice
of exercise in whole or in part in accordance with the provisions of this
Agreement, Holdings shall have the right to demand that the Holder execute and
deliver a Stock Power to Holdings and to then issue the certificate and to hold
the certificate in Holdings' possession together with the Stock Power so to
assure protection of Holdings' Repurchase Right.
14. AWARD INFORMATION CONFIDENTIAL. As partial consideration for
the granting of this Option, the Holder agrees that Holder will keep
confidential all information and knowledge that Holder has relating to the
manner and amount of participation in the Plan; provided, however, that such
information may be disclosed as required by law and may be given in confidence
to the Holder's spouse, tax and financial advisors, or to a financial
institution to the extent that such information is necessary to secure a loan.
15. TAX WITHHOLDING. By acceptance hereof, Holder hereby (i)
agrees to reimburse the Corporation by which Holder is employed for any
federal, state, or local taxes required by any government to be withheld or
otherwise deducted by such Corporation in respect of Holder's exercise of all
or a portion of the Option; (ii) authorizes the Corporation by which the Holder
is employed to withhold from any cash compensation paid to the Holder or in the
Holder's behalf, an amount sufficient to discharge any federal, state, and
local taxes imposed on the Corporation by which the Holder is employed, in
respect of the Holder's exercise of all or a portion of the Option; and (iii)
agrees that Holdings may, in its discretion, hold the stock certificate to
which
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Holdings is entitled upon exercise of the Option as security for the payment of
the aforementioned withholding tax liability, until cash sufficient to pay that
liability has been accumulated, and may, in its discretion, effect such
withholding by retaining shares issuable upon the exercise of the Option having
a fair market value on the date of exercise which is equal (in the judgment of
such corporation) to the amount to be withheld.
16. CONFIDENTIAL INFORMATION. As partial consideration of the
granting of this Option, the Holder agrees that during Holder's employment with
the Corporation or at any time thereafter, irrespective of the time, manner or
cause of the termination of this Agreement, Holder will not directly or
indirectly reveal, divulge, disclose or communicate to any person or entity,
other than authorized officers, directors and employees of the Corporation, in
any manner whatsoever, any Confidential Information of the Corporation or any
direct or indirect subsidiary or parent of the Corporation without the prior
written consent of the Chairman of the Board of Holdings.
17. AGREEMENT NOT TO COMPETE. As partial consideration of the
granting of this Nonstatutory Option, Holder agrees:
(a) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION. In the event
that the Holder is terminated for Cause or voluntarily terminates employment
with the Corporation prior to the expiration of the term of this Agreement,
Holder hereby agrees that for a period of one (1) year following such
termination, he shall not, either in Holder's own behalf or as a partner,
officer, director, employee, agent or shareholder engage in, invest in or
render services to any person or entity engaged in the businesses in which the
Corporation or any subsidiary of the Corporation is then engaged and situated
within the United States of America. Nothing contained in this Section 17(a)
shall be construed as restricting the Holder's right to sell or otherwise
dispose of any business or investments owned or operated by the Holder as of
the date hereof.
(b) TERMINATION WITHOUT CAUSE OR FOR DISABILITY. In the event
that the employment of the Holder is terminated by the Corporation without
Cause or as a result of the total disability of the Holder, Holder hereby
agrees that only during the period that the Holder accepts continued disability
and/or severance compensation payments from the Corporation, he shall not,
either in Holder's own behalf or as a partner, officer, director, employee,
agent or shareholder engage in, invest in or render services to any person or
entity engaged in the businesses in which the Corporation is then engaged and
situated within the United States of America. Nothing contained in this
Section 17(b) shall be construed as restricting the Holder's right to sell or
otherwise dispose of any business or investments owned or operated by the
Holder as of the date hereof.
18. AGREEMENT NOT TO SOLICIT EMPLOYEES. Holder agrees that, for a
period of two (2) years following the termination of Holder's employment by the
Corporation, Holder shall not, for Holder or on behalf of any business engaged
in a business competitive with the Corporation, solicit or induce, or in any
manner attempt to solicit or induce, any person employed by, or any agent of
the Corporation to terminate employment or agency, as the case may be, with the
Corporation.
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19. REPURCHASE RIGHT. If Holder's employment with the Corporation
terminates for any reason at any time (other than as a result of Holder's death
or Disability, or in the event of termination of Holder's employment without
good cause (as defined in the Plan) or upon retirement (with the Corporation's
prior written consent)), Holdings and/or its designee(s) shall have the option
(the "Purchase Option") to purchase, and if an Option is exercised, Holder (or
the Holder's executor or the administrator of Holder's estate, in the event of
the Holder's death, or Holder's legal representative in the event of the
Holder's incapacity (hereinafter, collectively with such Holder, the
"Grantor")) shall sell to Holdings and/or its assignee(s), all or any portion
(at Holding's Option) of the shares of Stock and/or exercised Options held by
the Grantor (such shares of Stock and exercised Options collectively being
referred to as the "Purchasable Shares").
Holdings shall give notice in writing to the Grantor of the exercise
of the Purchase Option within one (1) year from the date of the termination of
the Holder's employment. Such notice shall state the number of Purchasable
Shares to be purchased and the determination of the Board of Directors of the
Fair Market Value (as defined in the Plan) per share of such Purchasable
Shares. If no notice is given within the time limit specified above, the
Purchase Option shall terminate.
The purchase price to be paid for the Purchasable Shares purchased
pursuant to the Purchase Option shall be, in the case of any Stock, the Fair
Market Value per share times the number of shares being purchased, and in the
case of any Option, the Fair Market Value per share times the number of vested
shares subject to such Options which are being purchased, less the applicable
per share Option exercise price. The purchase price shall be paid in cash.
The closing of such purchase shall take place at Holding's principal executive
offices within ten (10) days after the purchase price has been determined. At
such closing, the Grantor shall deliver to the purchaser(s) the certificates or
instruments evidencing the Purchasable Shares being purchased, duly endorsed
(or accompanied by duly executed stock powers) and otherwise in good form for
delivery, against payment of the purchase price by check of the purchaser(s).
In the event that, notwithstanding the foregoing, the Grantor shall have failed
to obtain the release of any pledge or other encumbrance or any Purchasable
Shares by the scheduled closing date, at the option of Holdings, the closing
shall nevertheless occur on such scheduled closing date, with the cash purchase
price being reduced to the extent of all unpaid indebtedness for which such
Purchasable Shares are then pledged or encumbered.
To assure the enforceability of Holding's rights under this Paragraph
19, each certificate or instrument representing Stock or an Option held by
Holder and/or the certificate or instrument shall bear a conspicuous legend in
substantially the following form:
"THE SHARES [REPRESENTED BY THIS CERTIFICATE] [ISSUABLE PURSUANT TO
THIS AGREEMENT] ARE SUBJECT TO AN OPTION TO REPURCHASE PROVIDED UNDER
THE PROVISIONS OF THE INTERNATIONAL WIRE HOLDING COMPANY 1995 STOCK
OPTION PLAN AND A NONSTATUTORY STOCK OPTION AGREEMENT ENTERED INTO
PURSUANT THERETO. A COPY OF SUCH OPTION PLAN AND
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OPTION AGREEMENT ARE AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT
ITS PRINCIPAL EXECUTIVE OFFICES."
Holding's rights under this Section 19 shall terminate upon the
consummation of an underwritten public offering of the Stock, registered and
effective under the Securities Act of 1993, as amended, pursuant to which
Holdings receives aggregate cash sales proceeds, before underwriting discount,
of at least $25 million or such lesser amount as the Committee shall determine.
20. SUCCESSORS. Except as otherwise provided herein, this
Agreement is binding on and enforceable by the heirs, successors, and assigns
of the parties.
21. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Delaware, except to the extent that Delaware Law is preempted
by Federal Law.
IN WITNESS WHEREOF, Holdings has caused this Agreement to be executed
and the Holder has hereunto set Holder's hand as of the 6th day of August,
1996.
HOLDINGS: INTERNATIONAL WIRE HOLDING COMPANY
By: /s/ XXXXX X. XXXXX
---------------------------------
Xxxxx X. Xxxxx
Chairman and Chief Executive Officer
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
HOLDER: /s/ XXXXX X. XXXXXX
---------------------------------
Xxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Number of Option Shares subject to the grant in Paragraph 2 hereof is two
hundred fifty thousand (250,000) and the Exercise Price is One Dollar ($1.00)
per share.
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