EXHIBIT 10.2
AMENDMENT NUMBER ONE TO
DEFERRED COMPENSATION TRUST AGREEMENT
WHEREAS, the Company desires to amend the Deferred Compensation Trust
Agreement dated February 13, 2001, to clarify how payments will be made if the
Trust does not have sufficient assets to fund all benefits due participants
under the Arrangements and if benefits are funded on an individual participant
basis;
WHEREAS, the Company and the Trustee in Section 14(a) reserved the
right to amend the Trust Agreement;
NOW, THEREFORE, the parties hereto agree that the Trust Agreement is
amended as of February 5, 2003 as follows:
1. Section 4. PAYMENTS WHEN A SHORT-FALL OF THE TRUST ASSETS OCCURS is
hereby deleted in its entirety and the following Section 4 shall be substituted
in lieu thereof:
Section 4. PAYMENTS WHEN A SHORT-FALL OCCURS OR WHERE THERE IS
INDIVIDUAL OR PARTIAL FUNDING OF VESTED BENEFITS.
(a) If there are not sufficient assets for the payments pursuant
to Section 2 or Section 3(c) hereof and the Company does not
otherwise make such payments within a reasonable time after
demand from the Trustee, the Trustee shall make said payments
from the Trust under the Arrangements in a pro rata manner.
Upon receipt of a contribution from the Company necessary to
make up for a short-fall in the payments due, the Trustee
shall resume payments under the Arrangements.
(b) Notwithstanding the provisions of (a) above, in the event that
the Company shall elect to fund for benefits under one or more
supplemental executive retirement plans through this Trust on
an individual participant basis, then the benefits payable to
a participant shall be funded solely from the Trust assets (as
adjusted to reflect the earnings and losses attributable to
such assets) allocated to fund the participant's benefits and
the Trust assets (as adjusted to reflect the earnings and
losses attributable to such assets) allocated to fund the
benefits of other participants shall not be applied to satisfy
such benefit liabilities.
(c) Notwithstanding the provisions of (a) above, in the event that
the Company shall have elected to fund for benefits under one
or more supplemental executive retirement plans through this
Trust but without earmarking such funding on an individual
participant basis as contemplated in paragraph (b) above, and
a participant or participants under such plan(s) shall apply
for a lump sum payment(s) from such plan(s), and the Trust
assets allocated to such plan(s) are less than the present
value of all vested accrued benefits for all participants
under such plan(s), then the Trustee shall limit such lump sum
payment to each participant to an amount equal to the Trust
assets allocated to fund benefits
under such plan(s) multiplied by a fraction having (i) a
numerator equal to the present value that the participant's
vested accrued benefit and (ii) a denominator equal to the
present value of the vested accrued benefits of all
participants in the plan(s). For purposes of this paragraph
(c), the present value of vested accrued benefits shall be
calculated using the same interest and mortality assumptions
that are used to calculate lump sum payments under the
Wolverine Tube, Inc. 2002 Supplemental Executive Retirement
Plan.
(d) Following a Change of Control, the Trustee shall have the
right to compel a contribution to the Trust from the Company
to make-up for any short-fall needed to provide benefits
pursuant to Section 2.
2. All other terms of the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, this Amendment Number One has been executed on
behalf of the parties hereto on this the 7th day of May, 2003.
ATTEST: WOLVERINE TUBE, INC.
Xxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxxx, Xx.
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Secretary Its: Senior Vice President & General Counsel
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[Corporate Seal]
ATTEST: AMSOUTH BANK
Xxxxx X. Xxxxxx By: Xxxxx Xxxxx
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Secretary Its: Vice President and Trust Officer
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[Corporate Seal]
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