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EXHIBIT 10.1
AGREEMENT
for
SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFITS
AS AMENDED AND RESTATED AS OF MARCH 26, 2001
This Agreement is made as of the twenty-sixth day of March 2001, between
Wolverine Tube, Inc. (the "Company") and Xxxxxx Xxxxxxxx (the "Executive").
RECITALS
WHEREAS, Company desires to employ and retain the unique experience, ability,
and services of Executive as Company's President and Chief Executive Officer;
and
WHEREAS, Company and the Executive as of June 1, 1999, entered into an agreement
(the "Agreement") to provide a nonqualified retirement benefit to supplement the
retirement income benefit provided to Executive under the Wolverine Tube, Inc.
Retirement Plan as Amended and Restated (the "Retirement Plan"), and the
Wolverine Tube, Inc. Supplemental Benefit Restoration Plan (the "Supplemental
Plan"); and
WHEREAS, the parties reserved the right to amend the Agreement in writing
through action taken by the Board of Directors and the Executive; and
WHEREAS, the parties amended the Agreement on November 16, 1999 to make
clarifying and corrective changes; and
WHEREAS, the Compensation Committee desires to amend the Agreement to revise the
compensation multiplier in the benefit formula and the method for crediting
service in the event of a Change of Control; and
WHEREAS, the terms and conditions of this Agreement as Amended and Restated as
of March 26, 2001 have been duly approved and authorized by the Compensation
Committee of the Company's Board of Directors;
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, and of other good and valuable consideration which Company and
Executive have received and accept as sufficient, Company and Executive agree
that the Agreement shall be amended and restated as follows:
1. AGREEMENT TERM
The term of this Agreement begins on June 1, 1999 and continues until
all payments provided for hereunder have been made by the Company. No
termination of this Agreement shall have the effect of reducing benefits accrued
by Executive prior to the date of such termination.
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2. DEFINITIONS:
All capitalized terms in this Agreement shall have the meanings
contained in the Retirement Plan, as it shall be amended from time to time,
except that the following terms shall have the meanings indicated:
2.1 ACTUARIAL EQUIVALENT
"Actuarial Equivalent" means a benefit having the same value as the
benefit which it replaces, computed on the bases of the corresponding actuarial
equivalence assumptions in effect under the Retirement Plan.
2.2 ADMINISTRATOR
"Administrator" means the Retirement Committee under the Retirement
Plan, and any successor to the Retirement Committee.
2.3 AFFILIATE
"Affiliate" means --
(a) any corporation while it is a member of the same "controlled
group" of any corporations (within the meaning of Code section
414(b)) as the Company;
(b) any other trade or business (whether or not incorporated)
while it is under "common control" (within the meaning of Code
section 414(c)) with the Company;
(c) any organization during any period in which it (along with the
Company) is a member of an "affiliated service group" (within
the meaning of Code section 414(m)); or
(d) any other entity during any period in which it is required to
be aggregated with the Company under Code section 414(o)).
2.4 AGREEMENT
"Agreement" means this Agreement for Supplemental Executive Retirement
Benefits, which is effective June 1, 1999.
2.5 BENEFICIARY
"Beneficiary" means the individual designated by the Executive to
receive any death benefits payable on the Executive's behalf under the
Retirement Plan.
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2.6 BENEFIT COMMENCEMENT DATE
"Benefit Commencement Date" means the date on which the Executive's
benefits shall commence under Article IV. The Executive's Benefit Commencement
Date shall be --
(a) the first day of the month coincident with or next following
the later of --
(1) the Executive's Termination of Service; or
(2) the date on which the Executive attains his or her
Earliest Retirement Age; or
(3) the date selected by the Administrator, in its sole
and absolute discretion, for the commencement of
benefit payments under the Supplemental Plan;
provided, however, that this date shall not precede
the Executive's Termination of Service.
2.7 BOARD
"Board" means the Company's Board of Directors.
2.8 CODE
"Code" means the Internal Revenue Code of 1986, as amended from time to
time. A reference to a particular section of the Code shall also be deemed to
refer to the regulations and any other regulatory guidance under that Code
section.
2.9 COMPANY
"Company" means Wolverine Tube, Inc. and any successor thereto that
agrees to adopt and continue this Plan.
2.10 CREDITED SERVICE
"Credited Service" means Credited Service, as defined in the Retirement
Plan, used to calculate the amount of the Executive's benefit under the
Retirement Plan.
2.11 DISABILITY
"Disability" means any physical or mental infirmity, which would result
in the Executive incurring a "disability" under the disability provisions
contained in the Retirement Plan.
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2.12 EARLIEST RETIREMENT AGE
"Earliest Retirement Age" means the earliest date on which the
Executive could incur a Termination of Service and elect to commence benefits
immediately under the Retirement Plan.
2.13 ERISA
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. A reference to a particular section of ERISA shall
also be deemed to refer to the regulations and any other regulatory guidance
under that section.
2.14 FINAL AVERAGE COMPENSATION
"Final Average Compensation" means Final Average Compensation, as
defined in the Retirement Plan, used to calculate the amount of the Executive's
benefit under the Retirement Plan.
2.15 NORMAL RETIREMENT DATE
"Normal Retirement Date" means the first day of the month coincident
with or next following the Executive's sixty-fifth birthday.
2.16 PLAN YEAR
"Plan Year" means the calendar year.
2.17 RETIREMENT PLAN
"Retirement Plan" means the Wolverine Tube, Inc. Retirement Plan as
Amended and Restated, effective as of January 1, 1989, and as amended from time
to time.
2.18 SUPPLEMENTAL PLAN
"Supplemental Plan" means the Wolverine Tube, Inc. Supplemental Benefit
Restoration Plan, as Amended and Restated, effective January 1, 1994, and as
amended from time to time.
2.19 TERMINATION OF SERVICE
"Termination of Service" means the Executive's resignation, discharge,
or retirement from the Company other than by death.
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3. BENEFIT ELIGIBILITY
Executive becomes entitled to benefits under this Agreement upon a
termination from employment or death subject to the terms and conditions set
forth herein.
4. RETIREMENT BENEFITS
4.1 NORMAL RETIREMENT BENEFITS
(a) ELIGIBILITY. If the Executive, upon a Termination of Service,
is entitled to a normal retirement benefit under the
Retirement Plan, he shall be eligible for a normal retirement
benefit under this Section 4.1. Except as otherwise provided
in Section 7, this normal retirement benefit shall be
calculated as a single life annuity corresponding to the
standard form of benefit under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for a normal retirement
benefit under subsection (a) shall be entitled to a monthly
benefit under this Agreement equal to the difference between
paragraphs (1) and (2) where --
(1) is the monthly normal retirement benefit to which the
Executive would have been entitled under the
Retirement Plan as of his Normal Retirement Date if
the Final Average Compensation multiplier under the
Retirement Plan's benefit formula were 2.05% in lieu
of the multiplier in effect under such plan (1.5% in
2001), calculated without regard to --
(A) the compensation limit in effect under Code
section 401(a)(17) and corollary provisions
in the Retirement Plan; and
(B) the limits on benefits in effect under Code
section 415 and corollary provisions in the
Retirement Plan;
and
(2) is the vested monthly normal retirement benefit
payable to the Executive under the Supplemental Plan
and the Retirement Plan as of his Normal Retirement
Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
normal retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
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(A) for the period beginning April 1, 1998 and ending on
March 31, 2003, five additional years of Credited
Service if the Executive is still employed by the
Company on March 31, 2003; plus
(B) for each year and month of Credited Service the
Executive receives under the Retirement Plan after
March 31, 2003, the Executive will actually receive
two times the years and months of Credited Service
received in accordance with the Retirement Plan.
(c) COMMENCEMENT. Payment of benefits under this Section 4.1 shall begin on
the Executive's Normal Retirement Date. However, the Administrator, in
its sole and absolute discretion, may direct that payments shall begin
at a later date; in that event, the benefits under this section shall
be adjusted to be the Actuarial Equivalent of the benefit otherwise
commencing at the Executive's Normal Retirement Date.
4.2 EARLY RETIREMENT BENEFIT
(a) ELIGIBILITY. An Executive who incurs a Termination of Service
and is entitled to an early retirement benefit under the
Retirement Plan shall be eligible for an early retirement
benefit under this Section 4.2. Except as otherwise provided
in Section 7, this early retirement benefit shall be
calculated as a single life annuity corresponding to the
standard form of benefit under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for an early retirement
benefit under subsection (a) shall be entitled to a monthly
benefit under this Agreement equal to the difference between
paragraphs (1) and (2) where --
(1) is the monthly early retirement benefit to which the
Executive would have been entitled under the
Retirement Plan as of his Benefit Commencement Date
if the Final Average Compensation multiplier under
the Retirement Plan's benefit formula were 2.05% in
lieu of the multiplier in effect under such plan
(1.5% in 2001), calculated without regard to the
limits described in Section 4.1(b)(1)(A) and (B)
hereof, and
(2) is the vested monthly early retirement benefit
payable to the Executive under the Supplemental Plan
and the Retirement Plan if benefits were to commence
as of the Executive's Benefit Commencement Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
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(A) for the period beginning April 1, 1998 and ending on
March 31, 2003, five additional years of Credited
Service if the Executive is still employed by the
Company on March 31, 2003; plus
(B) for each year and month of Credited Service the
Executive receives under the Retirement Plan after
March 31, 2003, the Executive will actually receive
two times the years and months of Credited Service
received in accordance with the Retirement Plan.
(c) COMMENCEMENT. Payment of benefits under this Section 4.2 shall
begin on the Executive's Benefit Commencement Date.
If the Executive's Benefit Commencement Date is delayed by the
Administrator beyond the Executive's Normal Retirement Date,
the benefits under this section shall be adjusted to be the
Actuarial Equivalent of the benefit that would be payable
hereunder if such benefit commenced at the Executive's Normal
Retirement Date.
4.3 LATE RETIREMENT BENEFIT
(a) ELIGIBILITY. If the Executive, upon a Termination of Service,
is entitled to a late retirement benefit under the Retirement
Plan, he shall be eligible for a late retirement benefit under
this Section 4.3. Except as otherwise provided in Section 7,
this late retirement benefit shall be calculated as a single
life annuity corresponding to the standard form of benefit
under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for a late retirement
benefit under subsection (a) shall be entitled to a monthly
benefit under this Agreement equal to the difference between
paragraphs (1) and (2) where --
(1) is the monthly late retirement benefit to which the
Executive would have been entitled under the
Retirement Plan as of his Benefit Commencement Date
if the Final Average Compensation multiplier under
the Retirement Plan's benefit formula were 2.05% in
lieu of the multiplier in effect under such plan
(1.5% in 2001), calculated without regard to the
limits described in Section 4.1(b)(1)(A) and (B)
hereof, and
(2) is the vested monthly-deferred retirement benefit
payable to the Executive under the Supplemental Plan
and the late retirement benefit payable to the
Executive under the Retirement Plan if benefits were
to commence as of the Executive's Benefit
Commencement Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan
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shall be calculated by giving the Executive the following
additional Credited Service:
(A) for the period beginning April 1, 1998 and ending on
March 31, 2003, five additional years of Credited
Service if the Executive is still employed by the
Company on March 31, 2003; plus
(B) for each year and month of Credited Service the
Executive receives under the Retirement Plan after
March 31, 2003, the Executive will actually receive
two times the years and months of Credited Service
received in accordance with the Retirement Plan.
(c) COMMENCEMENT. Payment of benefits under this Section 4.3 shall
begin on the Executive's Benefit Commencement Date.
4.4 DISABILITY RETIREMENT BENEFIT
(a) ELIGIBILITY. If the Executive, upon a Termination of Service,
is entitled to a disability retirement benefit under the
Retirement Plan, he shall be eligible for a disability
retirement benefit under this Section 4.4. Except as otherwise
provided in Section 7, this disability retirement benefit
shall be calculated as a single life annuity corresponding to
the standard form of benefit under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for a disability retirement
benefit under subsection (a) shall be entitled to a monthly
benefit under this Agreement equal to the difference between
paragraphs (1) and (2) where --
(1) is the monthly disability retirement benefit to which
the Executive would have been entitled under the
Retirement Plan as of his Benefit Commencement Date
if the Final Average Compensation multiplier under
the Retirement Plan's benefit formula were 2.05% in
lieu of the multiplier in effect under such plan
(1.5% in 2001), calculated without regard to the
limits described in Section 4.1(b)(1)(A) and (B)
hereof, and
(2) is the vested monthly disability retirement benefit
payable to the Executive under the Supplemental Plan
and the Retirement Plan if benefits were to commence
as of the Executive's Benefit Commencement Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
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(A) for the period beginning April 1, 1998 and ending on
March 31, 2003, five additional years of Credited
Service if the Executive is still employed by the
Company on March 31, 2003; plus
(B) for each year and month of Credited Service the
Executive receives under the Retirement Plan after
March 31, 2003, the Executive will actually receive
two times the years and months of Credited Service
received in accordance with the Retirement Plan.
(c) COMMENCEMENT AND DURATION. Payment of benefits under this
Section 4.4 shall begin on the Executive's Benefit
Commencement Date.
The Executive who is receiving a benefit under this section
shall not be entitled to any other benefit under this Article
or Article 5. Benefits under this section shall be subject to
rules comparable to the disability retirement benefit rules in
the Retirement Plan concerning duration, entitlement to and
amounts of other retirement benefits, medical examinations,
and other restrictions.
4.5 VESTED BENEFITS ON OTHER TERMINATIONS OF EMPLOYMENT
(a) ELIGIBILITY. If the Executive, upon a Termination of Service
(other than normal, early, late, or disability retirement
described in Sections 4.1 through 4.4), is entitled to a
vested benefit under the Retirement Plan, he shall be eligible
for a benefit under this Section 4.5. Except as otherwise
provided in Section 7, this benefit shall be calculated as a
single life annuity corresponding to the standard form of
benefit under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for a benefit under
subsection (a) shall be entitled to a monthly benefit under
this Agreement equal to the difference between paragraphs (1)
and (2) where --
(1) is the monthly benefit to which the Executive would
have been entitled under the Retirement Plan as of
his Benefit Commencement Date if the Final Average
Compensation multiplier under the Retirement Plan's
benefit formula were 2.05% in lieu of the multiplier
in effect under such plan (1.5% in 2001), calculated
without regard to the limits described in Section
4.1(b)(1)(A) and (B) hereof, and
(2) is the vested monthly benefit payable to the
Executive under the Supplemental Plan and the
Retirement Plan if benefits were to commence as of
the Executive's Benefit Commencement Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan
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shall be calculated by giving the Executive the following
additional Credited Service:
(A) for the period beginning April 1, 1998 and ending on
March 31, 2003, five additional years of Credited
Service if the Executive is still employed by the
Company on March 31, 2003; plus
(B) for each year and month of Credited Service the
Executive receives under the Retirement Plan after
March 31, 2003, the Executive will actually receive
two times the years and months of Credited Service
received in accordance with the Retirement Plan.
(c) COMMENCEMENT. Payment of benefits under this Section 4.5 shall
begin on this Executive's Benefit Commencement Date. If the
Executive's Benefit Commencement Date is accelerated by the
Administrator before the Retirement Plan's "Early Retirement
Date," the benefits under this section shall be adjusted to be
the Actuarial Equivalent of the benefits that would be payable
hereunder if such benefit commenced at the Executive's Early
Retirement Date. If the Executive's Benefit Commencement Date
is delayed by the Administrator beyond the Executive's Normal
Retirement Date, the benefits under this section shall be
adjusted to be the Actuarial Equivalent of the benefits that
would be payable hereunder if such benefits commenced at the
Executive's Normal Retirement Date.
4.6 REEMPLOYMENT
If the Executive, after Termination of Service, is subsequently
reemployed by the Company, the Executive and his benefits hereunder shall become
subject to rules comparable to the rules in the Retirement Plan regarding
suspension of benefits, recalculation of benefits, and similar items.
5. CHANGE IN CONTROL AND TERMINATION WITHOUT CAUSE BENEFITS
For purposes of this Agreement, a "Change in Control" shall have the
meaning contained in Section 1(b)(v) of that certain Amended and Restated Change
in Control, Severance and Non-Competition Agreement entered into by the Company
and Executive and dated as of April 20, 1999, a copy of which definition is
attached hereto as Exhibit A. For purposes of this Agreement, "Termination
Without Cause" shall mean any instance not covered under the definition of
"Termination for Cause" as contained in Section 1(a)(ii) of that certain Amended
and Restated Change in Control, Severance and Non-Competition Agreement entered
into by the Company and Executive and dated as of April 20, 1999, a copy of
which definition is attached hereto as Exhibit B.
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In the event that the Company experiences a Change in Control or should
the Executive be Terminated Without Cause, all benefits calculated pursuant to
Sections 4.1 through 4.5 above shall be calculated as if:
(1) the Executive were still employed on the later of August 15,
2004 (which is the date on which Executive attains the age of
fifty-eight (58) years) and three years from the applicable
event, and the Executive continued to receive Credited Service
through the later of August 15, 2004 and three years from the
applicable event under the terms of this Plan;
(2) the Executive attained the later of age fifty-eight (58) and
the age he will be three years from the applicable event;
(3) the Executive met the eligibility requirements for early
retirement under the Retirement Plan on said date; and
(4) the Executive was fully vested in the benefits payable under
this Plan (whether or not he is then vested under the
Retirement Plan or the Supplemental Plan) on said date.
Additionally, such benefits shall be based on Covered Compensation (as
defined in the Retirement Plan) as of his Termination of Service. For purposes
of determining Final Average Compensation as of the later of August 15, 2004 and
three years from the applicable event, the calculation will also assume that the
Executive continues to receive Compensation (as defined in the Retirement Plan)
from the date of his Termination of Service through the later of August 15, 2004
and three years from the applicable event equal to the yearly amount payable to
him pursuant to paragraphs 1(b)(i)(A) and (C) of that certain Amended and
Restated Change in Control, Severance and Non-Competition Agreement entered into
by Executive and Company and dated as of April 20, 1999, as the same may be
amended from time to time.
Finally, the Executive shall be entitled to make any benefit
commencement elections pursuant to this Agreement on said date as if he attained
the later of age fifty-eight (58) and the age he will be three years from the
applicable event provided, however, such assumed age shall not be applicable for
determining the Actuarial Equivalent of benefits under Section 7.
6. DEATH BENEFIT
6.1 ELIGIBILITY
If the Executive has accrued vested rights under the Retirement Plan
and dies before the date on which his benefits under Section 4 hereof are to
commence, and his spouse or children under the age of 21 are entitled to death
benefits under the Retirement Plan, such spouse or children shall become
eligible for death benefits under this section.
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6.2 AMOUNT
A spouse or child of the Executive who is eligible for a death benefit
under Section 6.1 shall be entitled to a benefit under this Agreement equal to
the difference between subsections (1) and (2) where--
(1) is the vested death benefit to which the spouse or child would
have been entitled under the Retirement Plan if the Final
Average Compensation multiplier under the Retirement Plan's
benefit formula were 2.05% in lieu of the multiplier in effect
under such plan (1.5% in 2001) as of the earliest date on
which such benefit would be payable, calculated without regard
to the limits described in Section 4.1(b)(1)(A) and (B)
hereof, and
(2) is the death benefit payable to the spouse or child under the
Supplemental Plan and the Retirement Plan if such benefits
were to commence as of such earliest date of payment.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
(A) for the period beginning April 1, 1998 and ending on
March 31, 2003, five additional years of Credited
Service if the Executive is still employed by the
Company on March 31, 2003; plus
(B) for each year and month of Credited Service the
Executive receives under the Retirement Plan after
March 31, 2003, the Executive will actually receive
two times the years and months of Credited Service
received in accordance with the Retirement Plan.
6.3 FORM, TIMING, AND DURATION
Payment of benefits under this section shall begin at the earliest
possible date such benefits would be payable to the spouse or child, as
applicable, under the Retirement Plan. Payments shall continue for the duration
described in the Retirement Plan. Payment shall be in the standard form for such
benefits described in the Retirement Plan.
Notwithstanding the foregoing, the Administrator may, in its sole and
absolute discretion, direct that payment be made in a form or at a time other
than that described above. In that event, the benefits payable shall be the
Actuarial Equivalent of the benefits described in the first paragraph of this
section.
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7. FORM OF PAYMENT
7.1 UNMARRIED PARTICIPANT.
The form of payment for the Executive if he is not married on his
Benefit Commencement Date shall be a single life annuity.
7.2 MARRIED PARTICIPANT.
The form of payment for the Executive if he is married on his Benefit
Commencement Date shall be a statutory joint and survivor spouse annuity. A
statutory joint and survivor spouse annuity provides--
(a) a monthly benefit to the Executive for life; and
(b) upon the Executive's death, a monthly benefit to the
Executive's surviving spouse for life equal to 50 percent of
the monthly amount payable during the Executive's lifetime.
This statutory joint and survivor annuity shall be the Actuarial
Equivalent of the single life annuity in Section 7.1.
7.3 OPTIONAL PAYMENT FORMS
The Administrator may, in its sole and absolute discretion, direct that
payment be made in a form other than that described in Section 7.1 or 7.2. In
that event, the benefit payable under the optional payment form shall be the
Actuarial Equivalent of the single life annuity described in Section 7.1.
8. RETIREMENT BENEFIT ENHANCEMENT
In the event that the benefit multiplier applicable to other senior
executives under the Supplemental Plan is increased in the future, then benefits
payable to the Executive under Article IV, V or VI hereof shall be increased by
$6,000 for each year of Credited Service (without applying the special
adjustment for determining Credited Service in Section 4.1(b), 4.2(b), 4.3(b),
4.4(b), 4.5(b) and 6.2).
9. FUNDING
9.1 STATUS AS UNFUNDED PLAN
The Agreement is intended to constitute an unfunded plan maintained for
a "select group of management or highly compensated employees" within the
meaning of Section 201(2) of the Employee Retirement Income Security Act of
1974. The benefits under this Agreement shall be
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paid from the general assets of the Company, or from a trust fund the assets of
which remain available to the general creditors of the Company in the event of
its insolvency. The benefits shall not be funded in advance in any way except,
in the Company's discretion, through such a trust.
9.2 EVENT UPON WHICH TRUST WILL BE FUNDED
Nothing contained in this Agreement, and no action taken pursuant to
the provisions of this Agreement, shall create a trust or fiduciary relationship
between the Company and the Executive, Executive's spouse, or Beneficiary.
Notwithstanding the foregoing, the Company may establish and fund a trust for
said purpose, in which event the assets of the trust shall nonetheless be
available to the general creditors of the Company in the event of its
insolvency. In the event that the Company experiences a Change in Control, as
described in Section 5 above, it will immediately deposit into such a trust an
amount of money, calculated by actuaries acceptable to the Executive, which will
be sufficient with any other assets then held in said trust for said purpose to
fund the obligation of the company under this Agreement. Any such trust will be
designed to avoid creating a funded promise hereunder for purposes of applicable
Internal Revenue Service and Department of Labor regulations relating to
constructive receipt of income and applicability of funding requirements of
ERISA.
9.3 UNSECURED INTEREST
Neither the Executive nor any Beneficiary shall have any interest
whatsoever in any specific asset of the Company or an Affiliate. To the extent
that any person acquires a right to receive payments under this Agreement, such
right shall be no greater than the right of any unsecured general creditor of
the Company.
10. MISCELLANEOUS PROVISIONS
10.1 ADMINISTRATION
The Agreement shall be administered by the Administrator.
The Administrator shall have all powers necessary or appropriate to
carry out the provisions of the Agreement. It may, from time to time, establish
rules for the administration of the Agreement and the transaction of the
Agreement's business.
The Administrator shall have the exclusive right to make any finding of
fact necessary or appropriate for any purpose under the Agreement including, but
not limited to, the determination of eligibility for and amount of any benefit.
The Administrator shall have the exclusive right to interpret the terms
and provisions of the Agreement and to determine any and all questions arising
under the Agreement or in connection with its administration, including, without
limitation, the right to remedy or resolve
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possible ambiguities, inconsistencies, or omissions by general rule or
particular decision, all in its sole and absolute discretion.
All findings of fact, determinations, interpretations, and decisions of
the Administrator shall be conclusive and binding upon all persons having or
claiming to have any interest or right under the Agreement and shall be given
the maximum deference allowed by law.
10.2 APPEALS FROM DENIAL OF CLAIMS
If any claim for benefits under the Agreement is wholly or partially
denied, the claimant shall be given notice of the denial. This notice shall be
in writing, within a reasonable period of time after receipt of the claim by the
Administrator. This period shall not exceed 90 days after receipt of the claim,
except that if special circumstances require an extension of time, written
notice of the extension shall be furnished to the claimant, and an additional 90
days will be considered reasonable.
This notice shall be written in a manner calculated to be understood by
the claimant and shall set forth the following information:
(a) the specific reasons for the denial;
(b) specific reference to the Agreement provisions on which the
denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why this material or information is necessary;
(d) an explanation that a full and fair review by the
Administrator of the decision denying the claim may be
requested by the claimant or an authorized representative by
filing with the Administrator, within 60 days after the notice
has been received, a written request for the review; and
(e) if this request is so filed, an explanation that the claimant
or an authorized representative may review pertinent documents
and submit issues and comments in writing within the same
60-day period specified in subsection (d).
The decision of the Administrator upon review shall be made promptly,
and not later than 60 days after the Administrator's receipt of the request for
review, unless special circumstances require an extension of time for
processing. In this case the claimant shall be so notified, and a decision shall
be rendered as soon as possible, but not later than 120 days after receipt of
the request for review. If the claim is denied, wholly or in part, the claimant
shall be given a copy of the decision promptly. The decision shall be in
writing, shall include specific reasons for the denial, shall include specific
references to the pertinent Agreement provisions on which the denial is based,
and shall be written in a manner calculated to be understood by the claimant.
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10.3 EXPENSES
All expenses incurred in the administration of the Agreement shall be
paid by the Company.
10.4 AMENDMENT AND TERMINATION
The Company and the Executive hereby reserve the right to amend,
modify, or terminate the Agreement at any time, and for any reason, by action of
the Board of Directors of the Company and by the Executive, in writing. However,
no amendment or termination shall have the effect of reducing the benefits
accrued by the Executive prior to the date of the amendment or termination.
10.5 NO CONTRACT OF EMPLOYMENT
Nothing contained in this Agreement shall be construed to give the
Executive the right to be retained in the service of the Company or its
Affiliates or to interfere with the right of the Company or its Affiliates to
discharge the Executive at any time.
10.6 WAIVER
The failure of either party to insist in any one or more instances upon
performance of any terms or conditions of this Agreement shall not be construed
as a waiver of future performance of any such term, covenant, or conditions. The
obligations of both Company and Executive shall continue in full force and
effect.
10.7 SEVERABILITY
If any provision of this Agreement shall be held illegal or invalid,
the illegality or invalidity shall not affect its remaining parts. The Agreement
shall be construed and enforced as if it did not contain the illegal or invalid
provision.
10.8 ASSIGNMENT
Executive may not assign or otherwise alienate the benefits payable
under this Agreement.
10.9 TAX WITHHOLDING
Company may withhold from any payment under this Agreement any federal,
state, or local taxes required by law to be withheld with respect to the payment
and any sum Company may reasonably estimate as necessary to cover any taxes for
which it may be liable and that may be assessed with regard to the payment.
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10.10 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Alabama.
10.11 ENTIRE AGREEMENT
This Agreement supersedes all previous agreements between Executive and
Company, and contains the entire understanding and agreement between the
parties, with respect to the subject matter hereof, and supplements the
Retirement Plan and Supplemental Plan. This Agreement may not be amended,
modified, supplemented, or terminated except by a subsequent written instrument
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this instrument, effective
as of March 26, 2001.
WOLVERINE TUBE, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx, Chairman of the
Compensation Committee
EXECUTIVE
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Xxxxxx Xxxxxxxx
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EXHIBIT A
(v) For purposes of this Agreement, "Change in Control"
shall mean:
(A) The Company is merged, consolidated or
reorganized into or with another corporation or other legal person, and as a
result of such merger, consolidation or reorganization less than a majority of
the combined voting power of the then-outstanding securities of such corporation
or person immediately after such transaction are held in the aggregate by the
holders of Voting Stock (as that term is hereafter defined) of the Company
immediately prior to such transaction;
(B) The Company sells or otherwise transfers all
or substantially all of its assets to another corporation or other legal person,
and as a result of such sale or transfer less than a majority of the combined
voting power of the then-outstanding securities of such corporation or person
immediately after such sale or transfer is held in the aggregate by the holders
of Voting Stock of the Company immediately prior to such sale or transfer;
(C) There is a report filed on Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report), each as promulgated
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), disclosing that (x) any person (as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial
owner (as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of securities
representing 15% or more of the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors of the
Company ("Voting Stock"), or (y) any person has, during any period, increased
the number of shares of Voting Stock beneficially owned by such person by an
amount equal to or greater than 15% of the outstanding shares of Voting Stock;
provided, however, that transfers of shares of Voting Stock between a person and
the affiliates or associates (as such terms are defined under Rule 12b-2 or any
successor rule or regulation promulgated under the Exchange Act) of such person
shall not be considered in determining any increase in the number of shares of
Voting Stock beneficially owned by such person;
(D) The Company files a report or proxy
statement with the Securities and Exchange Commission pursuant to the Exchange
Act disclosing in response to Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) that a change in control of the
Company has occurred or will occur in the future pursuant to any then-existing
contract or transaction; or
(E) If, during any period of two consecutive
years, individuals who at the beginning of any such period constitute the
Directors of the company cease for any reason to constitute at least a majority
thereof; provided, however, that for purposes of this clause (v) each Director
who is first elected, or first nominated for election by the Company's
stockholders, by a vote of at least two-thirds of the Directors of the Company
(or a committee thereof) then still in
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office who were Directors of the Company at the beginning of any such period
will be deemed to have been a director of the Company at the beginning of such
period.
Notwithstanding the foregoing provisions of Sections (C) or (D) unless
otherwise determined in a specific case by majority vote of the Board, a "Change
in Control" shall not be deemed to have occurred by purposes of Sections (C) or
(D) solely because (1) the Company, (2) an entity in which the Company directly
or indirectly beneficially owns 50% or more of the voting securities (a
"Subsidiary"), or (3) any employee stock ownership plan or any other employee
benefit plan of the Company or any Subsidiary either files or becomes obligated
to file a report or a proxy statement under or in response to Schedule 13D,
Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein) under the Exchange Act disclosing beneficial ownership
by it of shares of Voting Stock, whether in excess of 15% or otherwise, or
because the Company reports that a change in control of the Company has occurred
or will occur in the future by reason of such beneficial ownership.
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EXHIBIT B
(ii) For purposes of this Agreement, termination for "Cause" shall
mean termination of the Executive's employment by the Company because of (A) the
Executive's conviction for, or guilty plea to, a felony or a crime involving
moral turpitude, (B) the Executive's commission of an act of personal dishonesty
in connection with his employment by the Company, (C) a breach of fiduciary duty
in connection with his employment with the Company which shall include, but not
be limited to, (1) investment in any person or organization with the knowledge
that such person or organization has or proposes to have dealings with the
Company, such person or organization competes with the Company, or the Company
is considering an investment in such person or organization (the reference to
"organization" excludes federal credit unions, publicly owned insurance
companies and corporations the stock of which is listed on a national securities
exchange or quoted on NASDAQ if the direct and beneficial stock ownership of the
Executive, including members of his immediate family, is not more than one
percent (1%) of the total outstanding stock of such corporation); (2) a loan
(including a guaranty of a loan) from or to any person or organization having or
proposing any dealings with the Company or in competition with the Company; (3)
participation directly or indirectly in any transaction involving the Company
other than as a director or as an officer or employee of the Company; (4)
acceptance from any person or organization having or proposing any dealings with
the Company or in competition with the Company of any gratuity, gift,
entertainment or favor which exceeds either nominal value or common courtesies
which are generally accepted business practice; or (5) service as an officer,
director, partner or employee of, or consultant to, any person or organization
having or proposing dealings with the Company or in competition with the
Company; (D) the Executive's failure to execute or follow the written policies
of the Company, including, but not limited to, the Company's policy against
discrimination or harassment, or (E) the Executive's refusal to perform the
essential functions of the job, following written notice thereof. Termination of
the Executive's employment as a result of his death or disability (if such
Executive is eligible for benefits under the Company's long-term disability plan
or would be eligible for such benefits were the Executive a participant in said
plan) shall constitute a termination by the Company with Cause for purposes of
this Agreement.
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