EXHIBIT 10.1
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[AMENDED FORM OF STOCK OPTION AGREEMENT]
INTERNATIONAL WIRE GROUP, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into between
International Wire Group, Inc., a Delaware corporation ("Group"), and the
undersigned (the "Holder") in connection with the grant of an Option
(hereinafter defined) under the International Wire Group, Inc. 2006 Stock Option
Plan (the "Plan").
WITNESSETH:
WHEREAS, the Holder is an employee of Group or a subsidiary corporation
thereof (such subsidiary corporation sometimes referred to herein as "Related
Entities"; Group 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 Group desires to grant the Holder an Option through the Plan to
purchase shares of Stock (hereafter defined) of Group, and Holder desires to
accept the Option upon the terms, conditions and covenants set forth herein and
in the Plan.
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 purposes of this Agreement, the following
terms shall have the meanings specified below:
1.1 "Board of Directors" shall mean the board of directors of
Group.
1.2 "Cause" shall be as defined by any employment agreement
applicable to Holder or, if none, shall mean termination of employment of Holder
because of (i) Holder's conviction of, or plea of nolo contendere (or other
similar plea) to, a felony or a crime involving moral turpitude; (ii) Holder's
personal dishonesty, incompetence, willful misconduct, willful violation of any
law, rule, or regulation (other than minor traffic violations or similar
offenses) or breach of fiduciary duty which involves personal profit; (iii)
Holder's commission of material mismanagement in the conduct of Holder's duties
as assigned to him; (iv) Holder's willful failure to execute or comply with the
policies of the Corporation; (v) Holder's failure to properly perform Holder's
stated established duties, or intentional failure to perform Holder's stated
duties; or (vi) the illegal use of drugs on the part of Holder.
1.3 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.4 "Committee" shall have the meaning ascribed to such term under
the Plan.
1.5 "Confidential Information" shall mean information about the
Corporation, including its respective businesses, products and practices,
disclosed to or known by the Holder as a direct or indirect consequence of or
through the employment by the Corporation. 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 (iii) the
subject of a written waiver executed by the Corporation for the benefit of
Holder.
1.6 "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.
1.7 "Fair Market Value" shall mean the closing price of the Stock
on the date of calculation (or on the last preceding trading date if the Stock
was not traded on such date) if the Stock is readily tradable on a national
securities exchange or other market system, and if the Stock is not readily
tradable, Fair Market Value shall mean the amount determined in good faith by
the Committee as the fair market value of the Stock through the reasonable
application of a reasonable valuation method; provided, however, in the event of
a Change in Control (as defined in the Plan), the Fair Market Value shall be
based on the actual consideration paid for such Common Stock.
1.8 "Securities Act" shall mean the Securities Act of 1933, as
amended.
1.9 "Stock" shall mean Group's authorized par value $0.01 per
share Common Stock together with any other securities with respect to which
Options (hereinafter defined) or other rights granted hereunder may become
exercisable.
2. GRANT OF NONQUALIFIED OPTION. Subject to the terms and
conditions set forth herein, Group grants to the Holder an Option (the "Option")
to purchase from Group at a price per share (the "Exercise Price") the number of
shares of Stock (the "Option Shares") as both are set out on the signature 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 422(a) 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 Group 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 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 Group, (ii)
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, provided, such shares have been held
for at least six (6) months or (iii) with the Committee's approval, a
combination of any of (i) - (ii). The Committee may grant or withhold its
approval under any or all of the foregoing subsections (ii) or (iii) 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,
such other person exercising the Option) shall, as an absolute condition to his
right to exercise the Option, deliver to Group an agreement or certificate
containing such representations, warranties, and covenants as Group 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 Group 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 NONQUALIFIED OPTION. The Option is
not transferable by the Holder otherwise than by operation of law or 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 operation of law or by will or the laws of descent and distribution),
pledged, or hypothecated in any way and shall not be subject to execution,
attachment, or similar proceeding. Any attempted assignment, transfer, pledge,
hypothecation, or other disposition of the Option or any rights hereunder or
thereto 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.
Notwithstanding the foregoing, the Option may be transferred by the Holder
solely to the Holder's spouse, siblings, parents, children and grandchildren or
trusts for the benefit of such persons or partnerships, corporations, limited
liability companies or other entities owned solely by such persons, including
trusts for such persons.
6. STATUS OF HOLDER. The Holder shall not be deemed a stockholder
of Group 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.
Group 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. 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.
7. NO EFFECT ON CAPITAL STRUCTURE. This Option shall not affect
the right of Group 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, this Option shall expire ten (10) years from the date of this
Agreement (the "Expiration Date"). Holder shall be entitled to exercise the
Options granted herein in accordance with the vesting schedule set forth on the
signature page hereof. Notwithstanding the provisions of the immediately
preceding sentence, all Option Shares shall become exercisable immediately prior
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to a Change in Control (as defined in the Plan) subject, however, to the
consummation of the Change in Control.
All other provisions of this Agreement to the contrary notwithstanding,
in the event of the termination of Holder's employment with the Corporation
either due to Holder's voluntary resignation or the Corporation's termination of
Holder for Cause, all rights under this Agreement and the Option shall terminate
and shall thereupon be null and void effective 30 days after such termination
termination; provided, however, any shares of Stock obtained through exercise
prior to such termination date in accordance with the terms of this Agreement
shall remain the sole and absolute property of the Holder.
In the event of the termination of Holder's employment with the
Corporation other than as a result of Holder's voluntary resignation or Holder's
termination by the Corporation for Cause, all rights under this Agreement and
the Option shall terminate and shall become null and void effective on the later
of (i) the date upon which Holder is no longer entitled to receive any benefits
from Group or any of its subsidiaries pursuant to any employment agreement
applicable to Holder or, in the absence of any employment agreement applicable
to Holder, (ii) thirty (30) days (or 180 days if because of death or Disability)
after such termination (as applicable, the "Extended Exercisability Period");
provided, however, that in no event shall the Extended Exercisability Period
extend beyond the Expiration Date; and provided, further, any shares of Stock
obtained through exercise prior to such termination date in accordance with the
terms of this Agreement shall remain the sole and absolute property of the
Holder. During such Extended Exercisability Period, Holder (or Holder's legal
representative in the event that Holder's employment with the Corporation is
terminated because of death) shall have the right to exercise the Option with
respect to all or any part of the shares of Stock which Holder was entitled to
purchase immediately prior to the time of such termination.
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
dividend, extraordinary cash dividend, stock split, split-up, split-off,
spin-off, combination of shares, exchange of shares or other like change in
capital structure of Group (each, 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
notwithstanding, Group shall have the right to grant stock appreciation right
agreements to others and/or issue additional stock options, if such options are
to others out of authorized but unissued shares, even though the result of such
stock appreciation right agreements and/or stock options dilute either the
percentage of 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
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Agreement and/or any paragraph hereof 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, addressed to
the person who is to receive it at the address which such person has theretofore
specified by written notice delivered in accordance herewith. Group or Holder
may change, at any time and from time to time, by written notice to the other,
the address previously specified for receiving notices. Until changed in
accordance herewith, Group and the Holder specify their respective addresses as
set forth below on the signature lines on the last page hereof.
13. 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.
14. 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 on 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 Group
may, in its discretion, hold the stock certificate to which Holder 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.
15. 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 of the Corporation without the prior written
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consent of the Chairman of the Board of Group. Given the nature of the
Confidential Information, the Corporation may be irreparably damaged by any
unauthorized disclosure of any Confidential Information. Without prejudice to
the rights and remedies otherwise available to the Corporation, Holder agrees
that the Corporation shall be entitled to seek equitable relief, including an
injunction or specific performance, in the event of any breach of this Paragraph
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16. SUCCESSORS. Except as otherwise provided herein, this
Agreement is binding on and enforceable by the heirs, successors, and assigns of
the parties.
17. 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.
18. RESTRICTION ON SHARES. Holder acknowledges and agrees that
upon exercise of the Option, if required in the opinion of counsel to Group, the
certificates for Common Stock, when issued, will have substantially the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT TO THE
SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
ASSIGNED, EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT WITH RESPECT
TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (ii) RULE 144
UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER
SUCH ACT.
19. ENFORCEABILITY; BINDING EFFECT. If any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such ruling shall not invalidate or render unenforceable the other
provisions of this Agreement, unless the result of such invalidation or
unenforceability shall be to deprive a party of the essential benefit of its
bargain under this Agreement, in which event either adversely affected party may
immediately terminate this Agreement. If any provision of this Agreement is
found to be unenforceable, the unenforceable provision shall be deemed modified
to the extent required to permit its enforcement in a manner most closely
representing the intent of the parties as expressed herein and all other
provisions shall be and remain in full force and effect. Subject to the
prohibition on assignments, this Agreement shall be binding upon and inure to
the benefit of the parties to this Agreement and their legal representatives,
successors and assigns.
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[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Group has caused this Nonqualified Stock Option
Agreement to be executed and the Holder has hereunto set Holder's hand as of
_______________.
GROUP: INTERNATIONAL WIRE GROUP, INC.
00 Xxxxxxx Xxx.
Xxxxxx, XX 00000
By:
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Name:
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Title:
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HOLDER:
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Address:
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OPTION TERMS:
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Number of Option Shares:
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Exercise Price: $_____ per share
Date of Grant:
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Vesting Schedule: Two-thirds of the options granted
vest immediately and the remaining
one-third of the options granted
shall vest on October 20, 2007.
Expiration Date: 10 years from the Date of Grant
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