EXHIBIT 10.1
NON-QUALIFIED OPTION AGREEMENT UNDER THE
WOLVERINE TUBE, INC.
1993 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
2001 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
NON-QUALIFIED OPTION AGREEMENT, dated as of (the "Grant Date"), between
WOLVERINE TUBE, INC., a Delaware corporation (the "Company"), and the other
party signatory hereto (the "Outside Director").
WHEREAS the Outside Director is currently a member of the Board of Directors of
the Company who is not an employee of the Company or its subsidiaries and,
pursuant to the Company's 1993 Stock Option Plan for Outside Directors or 2001
Stock Option Plan for Outside Directors as designated on Exhibit A hereto (the
"Plan") and upon the terms and subject to the conditions hereinafter set forth,
the Company desires to provide the Outside Director with an incentive to serve
as a member of the Board of Directors and to increase his or her interest in the
success of the Company through the granting to the Outside Director of
non-qualified stock options (the "Options") to purchase shares of common stock
of the Company, par value $0.01 per share (the "Common Stock") as described on
Exhibit A hereto.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Definitions; Incorporation of Plan Terms. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Plan.
This Agreement and the Options shall be subject to the Plan, the terms of
which are hereby incorporated herein by reference, and in the event of any
conflict between the Plan and this Agreement, the Plan shall govern.
2. Grant of Option. Subject to the terms and conditions contained herein and
in the Plan, the Company hereby grants to the Outside Director, effective
as of the Grant Date, the Options specified on Exhibit A hereto. Each such
Option shall entitle the Outside Director to purchase, upon payment of the
relevant Option Price specified on Exhibit A hereto, the number of shares
of Common Stock corresponding to such Option as specified on Exhibit A
hereto. Each Option granted hereunder is not intended to qualify as, and
shall not be treated as, an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
3. Terms and Conditions of Options. The Options evidenced hereby are subject
to the following terms and conditions:
(a) Vesting. Each Option shall vest according to the schedule
corresponding to such Option as specified on Exhibit A hereto.
However, all Options shall immediately vest and become exercisable
upon a "Change in Control of the Company," as defined in the Plan.
(b) Option Period. No Option may be exercised after the relevant
expiration date set forth on Exhibit A. Upon termination of the
Outside Director's service as a member of the Board, the Options, to
the extent then vested (the "Vested Options"), may be exercised as
follows:
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(i) If the Outside Director's service as a member of the Board of
Directors terminates by reason of resignation, removal (other
than for "cause") or other termination as a member of the
Board, the Vested Options shall be exercisable by the Outside
Director or the Outside Director's Beneficiary (as hereinafter
defined) for one year following the date of such treatment or
such later date as the Administration Committee may determine;
and
(ii) If the Outside Director is removed from the Board for cause
(as determined in accordance with the Company's By-laws), all
Vested Options shall immediately terminate and cease to be
exercisable as of the date of such termination or resignation.
Any Option which is not a Vested Option as of the date of the
Outside Director's termination as a member of the Board shall
terminate as of such date and be of no further force and
effect.
For the purposes of this Section 3(b), "Beneficiary" means the
person designated by the Outside Director in writing to the
Company on Exhibit B as having the right to exercise the
Vested Options in the event of the Outside Director's death
or, if no such person is designated, the Outside Director's
estate.
(c) Certain Restrictions. None of the Options may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of, except in
accordance with the Plan or by testamentary devise or the laws of
descent and distribution.
(d) Notice of Exercise. Subject to Sections 3(e), 3(g) and 5(b) hereof,
the Outside Director may exercise any or all of the Options that
have vested pursuant to Section 3(a) and 3(b) hereof, by giving a
properly executed written notice to the Committee, a form of which
will be provided by the Company.
(e) Payment. The Outside Director shall pay the Option Price in full at
the time the written notice of exercise (pursuant to Section 3(d)
hereof) is given to the Committee. Payment for the Common Stock
being purchased shall be in cash (including a certified check,
teller's check or wire transfer of funds), previously owned shares
of Common Stock or a combination thereof.
(f) Stockholder Rights. The Outside Director shall have no rights as a
stockholder with respect to any shares of Common Stock issuable upon
exercise of the Options until a certificate or certificates
evidencing such shares shall have been issued to the Outside
Director, and no adjustment shall be made for dividends or
distributions or other rights in respect of any share for which the
record date is prior to the date upon which the Outside Director
shall become the holder of record thereof.
(g) Limitation on Exercise. The Options shall not be exercisable unless
either the Common Stock subject to the Options has been registered
under the Securities Act of 1933, as amended (the "1933 Act") and
qualified under applicable state "blue sky" laws in connection with
the offer and sale thereof, or the Outside Director has furnished
the Company with an investment representation satisfactory to the
Company that such registration and qualification is not required as
a result of the availability of an exemption from registration under
such laws.
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(h) Delivery of Certificate. As soon as practicable following the
exercise of any Options, a stock certificate evidencing the
appropriate number of shares of Common Stock issued in connection
with such exercise shall be issued in the Outside Director's name to
the Outside Director.
4. Outside Director Representation. The Outside Director represents that this
Agreement has been duly executed and delivered by the Outside Director and
constitutes a legal, valid and binding agreement of the Outside Director,
enforceable against the Outside Director in accordance with its terms.
5. Miscellaneous.
(a) No Rights to Grants or Continued Service. The Outside Director shall
not have any claim or right to receive grants under the Plan.
Neither the Plan nor this Agreement shall be deemed to create or
confer on the Outside Director any right to be re-elected or
retained as a member of the Board of Directors of the Company, or to
interfere with or limit in any way the right of the Company to
remove the Outside Director as a director at any time in accordance
with the Company's By-laws.
(b) Payment of Taxes. An Outside Director shall, no later than the date
as of which the value of any portion of the Option first becomes
includable in the Outside Director's gross income for federal income
tax purposes, make arrangements satisfactory to the Administration
Committee regarding payment of any federal, state, local or FICA
taxes of any kind required by law to be withheld with respect to the
Option.
(c) No Restriction on Right of Company to Effect Corporate Changes.
Neither the Plan nor this Agreement shall affect in any way the
right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalization, reorganizations
or other changes in the Company's capital structure or its business,
or any merger or consolidation of the Company, or any issue of stock
or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are
superior to or affect the Common Stock or the rights thereof or
which are convertible into or exchangeable for Common Stock, or the
dissolution or liquidation of the Company, or any sale or transfer
of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
6. Survival: Assignment. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the heirs and
permitted successors and assigns of such party; and all agreements herein
by or on behalf of the Company, or by or on behalf of the Outside
Director, shall bind and inure to the benefit of the heirs and permitted
successors and assigns of such parties hereto.
7. Notices. All notices and other communications provided for herein shall be
in writing and shall be delivered by hand or sent by certified or
registered mail, return receipt requested, postage prepaid, addressed, if
to the Outside Director, to his or her attention at the mailing address
set forth at the foot of this Agreement (or to such other address as the
Outside Director shall have specified to the Company in writing) and, if
to the Company, to Wolverine Tube, Inc., 000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxx, XX 00000, Attention: Stock Options Administrator.
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All such notices shall be conclusively deemed to be received and shall be
effective, if sent by hand delivery, upon receipt, or if sent by
registered or certified mail, on the fifth day after the day on which such
notice was mailed.
8. Waiver. The waiver by either party of compliance with any provision of
this Agreement by the other party shall not operate or be construed as a
waiver of any other provision of this Agreement, or of any subsequent
breach by such party of a provision of this Agreement.
9. Headings: Governing Law. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
The headings of sections and subsections herein are included solely for
convenience of reference and shall not affect the meaning of any of the
provisions of this Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by two
of its duly authorized officers and the Outside Director has executed this
Agreement, both as of the Grant Date.
WOLVERINE TUBE, INC.
By:
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Name: Xxxxxx Xxxxxxxx
Title: Chairman, President and
Chief Executive Officer
By:
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
OUTSIDE DIRECTOR
By: ____________________________________
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EXHIBIT B
DESIGNATION OF BENEFICIARY
FOR THE
NON-QUALIFIED OPTION AGREEMENT
PURSUANT TO THE
WOLVERINE TUBE, INC.
1993 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
2001 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
Note to Outside Directors: Completion of this form is only necessary if you wish
to designate a beneficiary other than your estate. If you do not submit this
form, all rights to the Options granted under this Agreement that you hold at
your death will be transferred to your estate.
Name of Outside Director: _____________________
Date of Option Agreement:
If my directorship with the Company terminates by reason of my death, or if I
shall die after I have terminated my directorship with the Company, but, prior
to the expiration of the Option (as provided in the Agreement), then all rights
to the Option granted under this Agreement that I hereby hold upon my death, to
the extent not previously terminated or forfeited, shall be transferred to my
primary beneficiary designated below, or to my secondary beneficiary designated
below if my primary beneficiary is unable to accept transfer, in the manner
provided for in the Plan and the Agreement.
Primary Beneficiary: __________________________________
Relationship: __________________________________
Address: __________________________________
Phone: __________________________________
Secondary Beneficiary: __________________________________
Relationship: __________________________________
Address: __________________________________
Phone: __________________________________
__________________________________
Outside Director
__________________________________
Date
Receipt acknowledged on behalf of Wolverine Tube, Inc. by:
__________________________________
__________________________________
Date
