EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Agreement is made as of ____________ by and between
International Wire Group, Inc., a Delaware
corporation (the "Company"), and the
undersigned member (a "Director") of the
Board of Directors (also referred to as
the "Board") of the Company (such Director
hereinafter referred to as the
"Indemnitee"), with reference to the
following facts:
It is essential to the Company to retain and attract as directors
the
most capable persons available. Highly
competent persons have become more
reluctant to serve as directors or in other
capacities unless they are provided
with adequate protection through insurance
and/or other adequate indemnification
against inordinate risks of claims and
actions against them arising out of their
service to and activities on behalf of a
corporation.
The current difficulties of obtaining adequate insurance and
uncertainties relating to indemnification
have increased the difficulty of
attracting and retaining such persons.
Although Indemnitee may be entitled to
indemnification pursuant to the Company's
Second Amended and Restated
Certificate of Incorporation (the
"Certificate of Incorporation") and the
Delaware General Corporation Law (the
"DGCL"), the DGCL expressly provides that
the indemnification provisions set forth
therein are not exclusive, and thereby
contemplates that contracts may be entered
into between the Company and members
of the Board, officers and other persons
with respect to indemnification.
The Company has determined that the inability to attract and
retain
such persons is detrimental to the best
interests of the Company's stockholders
and that the Company should act to assure
such persons that there will be
increased certainty of protection in the
future.
The Company believes it is reasonable, prudent and necessary for
the
Company to contractually obligate itself to
indemnify such persons to the
fullest extent permitted by applicable law
so that they will serve or continue
to serve the Company free from undue
concern that they will not be so
indemnified.
Indemnitee believes that this Agreement is desirable to augment
the
protection available under the Certificate
of Incorporation, and insurance, and
may not be willing to serve as a director
without the additional protection
provided for under this Agreement. The
Company desires Indemnitee to serve in
such capacity and Indemnitee is willing to
serve and continue to serve and to
take on additional service for or on behalf
of the Company on the condition that
he be so indemnified.
In order to induce the Indemnitee to
continue to serve as a Director of the
Company and in consideration of his
continued service, the Company hereby agrees
to indemnify the Indemnitee as follows:
1.
Certain Definitions:
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(a) Change in Control: shall be deemed to have occurred if (i)
any "person" (as such term is used in Sections 13(d) and 14(d) of
the
Securities Exchange Act of 1934, as amended), other than a trustee
or
other fiduciary holding securities under an employee benefit plan
of
the Company or a corporation owned directly or indirectly by
the
stockholders of the Company in substantially the same proportions
as
their ownership of stock of the Company, is or becomes
"beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 50% or more
of
the total voting power represented by the Company's then
outstanding
Voting Securities, or (ii) during any one year period, individuals
who
at the beginning of such period constitute the Board of Directors
of
the Company and any new Director whose election by the Board of
Directors or nomination for election by the Company's stockholders
was
approved by a vote of at least two-thirds (2/3) of the Directors
then
still in office who either were Directors at the beginning of
the
period or whose election or nomination for election was
previously
approved, cease for any reason to constitute a majority thereof,
or
(iii) the stockholders of the Company approve a merger or
consolidation
of the Company with any other corporation, other than a merger
or
consolidation which would result in the Voting Securities of
the
Company outstanding immediately prior thereto continuing to
represent
(either by remaining outstanding or by being converted into
Voting
Securities of the surviving entity) at least 50% of the total
voting
power represented by the Voting Securities of the Company or
such
surviving entity outstanding immediately after such merger or
consolidation, or if the events listed in this subsection (iii)
occur
without such approval or (iv) the stockholders of the Company
approve a
plan of complete liquidation of the Company or an agreement for
the
sale or disposition by the Company of (in one transaction or a
series
of transactions) all or substantially all of the Company's assets,
or
if the events listed in this subsection (iv) occur without such
approval.
(b) Expense Advance: shall have the meaning ascribed thereto
in Section 2(a) hereof.
(c) Expenses: shall include, without limitation, attorneys'
fees, retainers, court costs, transcript costs, fees of
experts,
witness fees, travel expenses, duplicating costs, printing and
binding
costs, telephone charges, postage, delivery service fees, and all
other
disbursements, costs, expenses and obligations actually and
reasonably
paid or incurred in connection with investigating, defending,
prosecuting, being a witness in or participating in (including
on
appeal), or preparing to defend, prosecute, be a witness in or
participate in, any Proceeding relating to any Indemnifiable
Event.
(d) Indemnifiable Event: shall include any event or occurrence
related to the fact that the Indemnitee is or was a director,
officer,
trustee, employee, agent or fiduciary of the Company, or is or
was
serving at the request of the Company as a director, officer,
employee,
trustee, agent or fiduciary of the Company, or is or was serving at
the
request of the Company as a director, officer, employee, trustee,
agent
or fiduciary of another corporation, partnership, joint
venture,
employee benefit plan, trust or other enterprise (including
employee
benefit plans and administrative committees thereof), or by reason
of
anything done or not done by the Indemnitee in any such
capacity.
2
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(e) Independent Legal Counsel: an attorney or firm of
attorneys, selected in accordance with the provisions of Section 3,
who
shall not have otherwise performed services for the Company or
the
Indemnitee within the last two years (other than with respect
to
matters concerning the rights of the Indemnitee under this
Agreement,
or of other indemnitees under similar indemnity agreements).
Notwithstanding the foregoing, the term "Independent Legal
Counsel"
shall not include any person who, under the applicable standards
of
professional conduct then prevailing, would have a conflict of
interest
in representing either the Company or the Indemnitee in an action
to
determine the Indemnitee's rights to indemnification under this
Agreement.
(f) Proceeding: shall include any threatened, pending or
completed claim, action, suit or proceeding, or any inquiry or
investigation, whether instituted by the Company or any other party
and
whether of a
civil, criminal, administrative or investigative nature.
(g) Reviewing Party: any appropriate person or body consisting
of a member or members of the Board or any other person or body
appointed by the Board who is not a party to the particular
Proceeding
for which the Indemnitee is seeking indemnification, or
Independent
Legal Counsel.
(h) Voting Securities: any securities of the Company that vote
generally in the election of directors.
2. Indemnity.
(a) In the event the Indemnitee was, is or becomes a party to
or witness or other participant in, or is
threatened to be made a party to or
witness or other participant in, a
Proceeding by reason of (or arising in part
out of) an Indemnifiable Event, the Company
will indemnify the Indemnitee, his
executors, administrators or assigns, to
the fullest extent permitted by law, as
soon as practicable but in any event no
later than sixty days after written
demand is presented to the Company, against
any and all Expenses, judgments,
fines (including excise taxes), penalties
and amounts paid in settlement
(including all interest, assessments and
other charges paid or payable in
connection with or in respect of such
Expenses, judgments, fines, penalties or
amounts paid in settlement) of such
Proceeding. If so requested by the
Indemnitee, the Company shall advance
(within two business days of such
request), to the fullest extent permitted
by law, any and all Expenses to the
Indemnitee (an "Expense Advance").
Notwithstanding anything in this Agreement to
the contrary, the Indemnitee shall not be
entitled to indemnification pursuant
to this Agreement in connection with any
Proceeding initiated by the Indemnitee
unless the Board of Directors has
authorized or consented to the initiation of
such Proceeding or such Proceeding seeks to
enforce the Indemnitee's rights
hereunder; provided, that the foregoing
shall not limit the Indemnitee's right
to indemnification hereunder in connection
with the defense of any counterclaims
brought against the Indemnitee in a
Proceeding initiated by the Indemnitee; and,
provided, further,
