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EXHIBIT 10.1
AMENDMENT TO AMENDED AND RESTATED CHANGE IN CONTROL,
SEVERANCE AND NON-COMPETITION AGREEMENT
WHEREAS, Wolverine Tube, Inc. (the "Company") and _______________
(the "Executive") entered into an Amended and Restated Change in Control,
Severance and Non-Competition Agreement made as of April 20, 1999 (the
"Agreement"); and
WHEREAS, the Company and the Executive wish to amend the Agreement
pursuant to Section 3 thereof;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt whereof is hereby acknowledged, the Company and
the Executive agree as follows:
1. A new sentence is added to the end of Section 1(b)(i)(A) of the
Agreement to read as follows:
The amount payable to the Executive by the Company
under this paragraph (b)(i)(A) shall be offset by the
non-compete and non-solicitation fee as defined in Section
2(d)(i) of this Agreement.
2. A new sentence is added to the end of Section 1(b)(i)(C) of the
Agreement to read as follows:
The amount payable to the Executive under this
paragraph (b)(i)(C) shall be offset by the non-compete and
non-solicitation fee as defined in Section 2(d)(i) of this
Agreement.
3. Section 1(b)(i)(B) of the Agreement is amended and restated to read as
follows:
(B)(I) For a period of ___________________________ , following
the Executive's Severance Date (the "Continuation Period"), the Company
will arrange to provide the Executive with medical and disability
benefits (the "Employee Benefits") substantially similar to those that
the Executive was receiving or entitled to receive immediately prior to
the Severance Date at no cost to the Executive. Without otherwise
limiting the purposes or effect of Section 1(b), Employee Benefits
otherwise receivable by the Executive pursuant to this Section
1(b)(i)(B)(I) will be reduced or eliminated to the extent comparable
Employee Benefits at substantially similar cost are actually received
by the Executive from another employer during the Continuation Period
following the
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Executive's Termination Date, and any such benefits actually received
by the Executive shall be reported by the Executive to the Company. If
and to the extent that any benefit described in this Section
1(b)(i)(B)(I) is not or cannot be paid or provided under any policy,
plan, program or arrangement of the Company or any Subsidiary, as the
case may be, then the Company will reimburse the Executive for the
costs incurred in obtaining comparable Employee Benefits coverage.
(B)(II) Following the Continuation Period, the Company will
provide the Executive access to Employee Benefits coverage on a group
basis equal to that generally available to the majority of the
Company's employees or retirees, as the case may be, who receive said
benefits, at the Executive's own expense until the Executive attains
the age of sixty-five (65). Without otherwise limiting the purposes or
effect of Section 1(b), Employee Benefits to which access is otherwise
provided to the Executive pursuant to this Section 1(b)(i)(B)(II) will
not be required to be made available to the extent comparable Employee
Benefits at substantially similar cost are actually received by the
Executive from another employer during the period following the
Continuation Period until attainment of age sixty-five (65). If and to
the extent that any benefit described in this Section 1(b)(i)(B)(II) is
not or cannot be provided under any policy, plan, program or
arrangement of the Company or any Subsidiary, as the case may be, then
the Company will reimburse the Executive for the difference in costs
incurred in obtaining comparable Employee Benefits coverage on an
individual basis and the cost for group coverage.
(B)(III) The Company shall reimburse the Executive for any
costs incurred by the Executive in maintaining life insurance coverage
comparable to that maintained for him by the Company under its group
life insurance program for the period from the Severance Date until the
earlier to occur of:
(X) the date which follows the Severance Date
___________________________, or
(Y) the date on which the Executive is
covered under any other equivalent group life
insurance plan;
4. A new Section 1(c) of the Agreement is added to read as follows:
(c) Certain Additional Payments by the Company. In the event
that this Agreement shall become operative and it shall be determined
(as hereafter provided) that any Payment would be subject to the
provisions of Section 4999 of the Internal Revenue Code of 1986, as
amended ("Code") or to any similar tax imposed by federal, state or
local law, or any other revenue system to which the executive may be
subject, or any interest or penalties with respect to that tax (that
tax or those taxes, together with any interest and penalties, may be
hereafter referred to as the "Excise Tax"), then, if the Executive
complies in all substantial respects with the requirements of the
Gross-Up Procedure, the Executive will be entitled to receive an
additional payment or payments (collectively, a "Gross-Up Payment"), as
described in the Gross-Up Procedure.
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For purposes of this subparagraph (c), "Payment" means any
payment made to the Executive (other than the Gross-Up payments
provided for in the Gross-Up Procedure) or distribution by the Company
or any of its affiliates to or for the benefit of the Executive,
whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise pursuant to or by reason of any
other agreement, policy, plan, program or arrangement, including
without limitation any stock option, performance share, performance
unit, stock appreciation right or similar right, supplemental
retirement plan benefits, split dollar insurance agreements, or the
lapse or termination of any restriction on, or the vesting or
exercisability of, any of the foregoing.
For purposes of this subparagraph (c), "Gross-Up Procedure"
means the Gross-Up Procedure attached hereto as Annex A.
5. A new Section 2(d)(i) of the Agreement is added to read as follows:
(i) In consideration of the promises of Executive contained in
this Agreement, including without limitation in this Paragraph 2(d),
the Company shall pay to the Executive a non-compete and
non-solicitation fee equal to _______ salary and bonus as determined in
accordance with Section 1(b)(i)(C), payable in the manner determined by
the Company under Sections 1(b)(i)(A) and 1(b)(i)(C) of the Agreement.
The amount otherwise payable to the Executive under Sections 1(b)(i)(A)
and 1(b)(i)(C) of this Agreement shall be offset by this non-compete
and non-solicitation fee.
IN WITNESS WHEREOF, this Amendment has been executed as a sealed
instrument by the Company by its duly authorized officer, and by the Executive,
as of the ________day of __________, ____.
WOLVERINE TUBE, INC.
By:
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Name:
Title:
EXECUTIVE
By:
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Name:
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ANNEX A
GROSS-UP PROCEDURE
(a) If a Change in Control of the Company occurs, or a termination of
employment occurs without Cause (as defined in the Agreement), any payment or
benefit provided by the Company or any of its affiliates to or for the benefit
of the Executive, whether paid or payable or provided or to be provided pursuant
to the terms of the Agreement or otherwise pursuant to or by reason of any other
agreement, policy, plan, program or arrangement, (including without limitation
any stock option, performance share, performance unit, stock appreciation right
or similar right, supplemental retirement plan benefits, split dollar insurance
agreements, or the lapse or termination of any restriction on, or the vesting or
exercisability of, any of the foregoing) (a "Payment"), would be subject to:
(i) the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code") (or any successor
provision) by reason of being considered "contingent on a change in
ownership or control" of the Company, within the meaning of Section
280G of the Code (or any successor provision);
(ii) any similar tax or any future tax imposed upon Payments
resulting from a termination without Cause whether or not a Change in
Control has occurred, imposed by federal, state or local law, or any
other revenue system to which the Executive may be subject, or
(iii) any interest or penalties with respect to (i) or (ii)
((i), (ii) or those taxes, together with any interest and penalties,
may be hereafter referred to as the "Excise Tax"),
then, if the Executive complies with the requirements of this Annex A, the
Executive will be entitled to receive an additional payment or payments
(collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up
Payment will be made with respect to the Excise Tax, if any, attributable to (i)
any incentive stock option, as defined by Section 422 of the Code ("ISO")
granted prior to ____________________________ or (ii) any stock appreciation or
similar right, whether or not limited, granted in tandem with any ISO described
in clause (i). The Gross-Up Payment will be in an amount such that the Executive
will be in the same position as if there was no Excise Tax imposed upon the
Payment. The Gross-Up Payment shall only reimburse the Executive for income
taxes that result from the Gross-Up Payment itself but not for income taxes that
would be normally incurred if the Excise Tax was not triggered.
(b) Subject to the provisions of subparagraph (f) below, all
determinations required to be made under this Annex A, including whether an
Excise Tax is payable by the Executive, the amount of that Excise Tax, whether a
Gross-Up Payment is required to be paid by the Company to the Executive and the
amount of that Gross-Up Payment, if any, will be made by a nationally recognized
accounting firm (the "Accounting Firm") selected by the Executive in the
Executive's sole discretion. The Executive will direct the Accounting Firm to
submit its determination and
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detailed supporting calculations to both the Company and the Executive within
thirty (30) calendar days after the Executive's date of termination, if
practicable, upon or following the triggering of the Change in Control. If the
Accounting Firm determines that any Excise Tax is payable by the Executive, the
Company will pay the required Gross-Up Payment to the Executive within five (5)
business days after receipt of the determination and calculations with respect
to any Payment to the Executive. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it will, at the same time as it makes
that determination, furnish the Company and the Executive an opinion that the
Executive has substantial authority not to report any Excise Tax on his federal,
state or local income or other tax return. As a result of the uncertainty in the
application of Section 4999 of the Code (or any successor provision) and the
possibility of similar uncertainty regarding applicable state or local tax law
at the time of any determination by the Accounting Firm, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made (an "Underpayment"), consistent with the calculations required to be made
under this Annex A. If the Company exhausts or fails to pursue its remedies
pursuant to subparagraph (f) and the Executive subsequently is required to make
a payment of any Excise Tax, the Executive will direct the Accounting Firm to
determine the amount of the Underpayment that has occurred and to submit its
determination and detailed supporting calculations to both the Company and the
Executive as promptly as possible. Any such Underpayment will be promptly paid
by the Company to, or for the benefit of, the Executive within five (5) business
days after receipt of the determination and calculations.
(c) The Company and the Executive will each provide the Accounting Firm
access to and copies of any books, records and documents in the possession of
the Company or the Executive, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determinations and calculations
contemplated by subparagraph (b). Any determination by the Accounting Firm as to
the amount of the Gross-Up Payment will be binding upon the Company and the
Executive.
(d) The federal, state and local income or other tax returns filed by
the Executive will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Executive. The Executive will make proper payment of the amount of any
Excise Payment, and at the request of the Company, provide to the Company just
verification evidencing that payment. If prior to the filing of the Executive's
federal income tax return, or corresponding state or local tax return, if
relevant, the Accounting Firm determines that the amount of the Gross-Up Payment
should be reduced, the Executive shall within five (5) business days pay to the
Company the amount of that reduction.
(e) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by subparagraph
(b) will be borne by the Company. If those fees and expenses are initially paid
by the Executive, the Company will reimburse the Executive the full amount of
those fees and expenses within five (5) business days after receipt from the
Executive of a statement for them and reasonable evidence of his payment of
them.
(f) The Executive will notify the Company in writing of any claim by
the Internal Revenue Service or any other taxing authority that, if successful,
would require the payment by
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the Company of a Gross-Up Payment. That notification will be given as promptly
as practicable but not later than thirty (30) business days after the Executive
actually receives notice of that claim and the Executive will further apprise
the Company of the nature of that claim and the date on which that claim is
requested to be paid (in each case, to the extent known by the Executive). The
Executive will not pay that claim prior to the earlier of (i) the expiration of
the thirty (30) calendar-day period following the date on which they give notice
to the Company or (ii) the date that any with respect to that claim is due. If
the Company notifies the Executive in writing prior to the expiration of that
period that it desires to contest the claim, the Executive will:
(A) provide the Company with any written records or documents
in his possession relating to that claim reasonably requested by the Company;
(B) take that action in connection with contesting the claim
as the Company reasonably requests in writing from time to time, including
without limitation accepting legal representation with respect to that claim by
an attorney competent in respect to the subject matter and reasonably selected
by the Company and mutually agreeable to the Executive;
(C) cooperate with the Company in good faith in order
effectively to contest that claim; and
(D) permit the Company to participate in any proceedings
relating to that claim; provided, however, that the Company will bear and pay
directly all attorney fees, costs and expenses (including, but not limited to,
interest and penalties) incurred in connection with that contest and will
indemnify and hold harmless the Executive, on an after-tax basis, for and
against any Excise Tax or income tax, including interest and penalties with
respect to the Excise Tax, imposed as a result of that representation and
payment of attorney fees, costs and expenses. Without limiting the foregoing
provisions of this subparagraph (f), the Company will control all proceedings
taken in connection with the contest of any claim contemplated by this
subparagraph (f) and, after consultation with Executive and exercising
reasonable and prudent business practices, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of that claim (provided, however, that the Executive may
participate in them at his own cost and expense) and may, at its option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive will prosecute that contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company will determine;
provided, however, that if the Company directs the Executive to pay the tax
claimed and xxx for a refund, the Company will advance the amount of that
payment to the Executive on an interest-free basis and will indemnify and hold
harmless the Executive, on an after-tax basis, from any Excise Tax or income or
other tax or imputed income from the interest-free advance, including, but not
limited to, interest or penalties with respect to the Excise Tax, imposed with
respect to that advance; and provided further, however, that any extension of
the statute of limitations relating to payment of taxes for the taxable year of
the Executive with respect to which the contested amount is claimed to be due is
limited solely to that contested amount. Furthermore, the Company's control of
any contested claim will be limited to issues with respect to which a Gross-Up
Payment would be payable pursuant to this Annex A and the
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Executive will be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(g) The Company agrees that it will maintain any information provided
to it by the Executive or his agents, including but not limited to that
described in paragraph (f) above, in strict confidence, and will disclose same
only in accordance with this Agreement and/or as required by applicable law.
