EXHIBIT 10.1
DEFERRED COMPENSATION TRUST AGREEMENT
This Deferred Compensation Trust Agreement (the "Trust Agreement") is made this
_____ day of _________________, 2001, by and between Wolverine Tube, Inc. and
each of its affiliates listed on Attachment A ("the Company") and AmSouth Bank
("the Trustee").
RECITALS
(a) WHEREAS, the Company is a party to certain deferred compensation
agreements and plans (the "Arrangements") as listed in Attachment B;
(b) WHEREAS, the Company has incurred or expects to incur liability under
the terms of such Arrangements with respect to the individuals
participating in such Arrangements (the "Participants and
Beneficiaries");
(c) WHEREAS, the Company hereby establishes a Trust (the "Trust") and shall
contribute to the Trust assets that shall be held therein, subject to
the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid as specified in the
Arrangements and in this Trust Agreement;
(d) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Arrangements as unfunded plans maintained for the purpose of
providing deferred compensation for a select group of management or
highly compensated employees for purposes of Title I of the Employee
Retirement Income Security Act of 1974; and
(e) WHEREAS, it is the intention of the Company to make contributions to
the Trust to provide itself with a source of funds (the "Fund") to
assist it in satisfying its liabilities under the Arrangements.
NOW, THEREFORE, the parties do hereby establish the Trust and agree that the
Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF THE TRUST
(a) The Trust is intended to be a Grantor Trust, of which the Company is
the Grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended,
and shall be construed accordingly.
(b) The Company shall be considered a Grantor for the purposes of the
Trust.
(c) The Trust hereby established is revocable by the Company; it shall
become irrevocable upon a Change of Control, as defined herein.
(d) The Company hereby deposits with the Trustee in the in the Trust
$100.00, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust
Agreement.
(e) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of the Company and shall be used
exclusively for the uses and purposes of Participants and general
creditors as herein set forth. Participants and their Beneficiaries
shall have no preferred claim on, or any beneficial ownership interest
in, any assets of the Trust. Any rights created under the Arrangements
and this Trust Agreement shall be unsecured contractual rights of
Participants and their Beneficiaries against the Company. Any assets
held by the Trust will be subject to the claims of the general
creditors of the Company under federal and state law in the event the
Company is Insolvent, as defined in Section 3(a) herein.
(f) The Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property acceptable to
the Trustee in the Trust to augment the principal to be held,
administered and disposed of by the Trustee as provided in this Trust
Agreement. Prior to a Change of Control, neither the Trustee nor any
Participant or Beneficiary shall have any right to compel additional
deposits.
(g) Upon a Change of Control, the Company shall, as soon as possible, but
in no event longer than thirty (30) days following the occurrence of a
Change of Control, as defined herein, make an irrevocable contribution
to the Trust in an amount that is sufficient to pay each Plan
Participant or Beneficiary the benefits to which Plan Participants or
their Beneficiaries would be entitled pursuant to the Arrangements as
of the date on which a Change of Control occurred.
SECTION 2. PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES
(a) The Company shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
Participant (and his or her Beneficiaries), that provides a formula or
other instructions acceptable to the Trustee for determining the
amounts so payable, the form in which such amount is to be paid (as
provided for or available under the Arrangements), and the time of
commencement for payment of such amounts. Except as otherwise provided
herein, the Trustee shall make payments to the Plan Participants and
their Beneficiaries in accordance with such Payment Schedule. The
Trustee shall make provision for the reporting and withholding of any
federal, state or local taxes that may be required to be withheld with
respect to the payment of benefits pursuant to the terms of the
Arrangements and shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been reported, withheld
and paid by the appropriate taxing authorities or determine that such
amounts have been reported, withheld and paid by the Company.
(b) The entitlement of a Participant or his or her Beneficiaries to
benefits under the Arrangements shall be determined by the Company or
such party as it shall designate under the Arrangements, and any claim
for such benefits shall be considered and reviewed under the procedures
set out in the Arrangements.
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(c) The Company may make payment of benefits directly to Participants or
their Beneficiaries as they become due under the terms of the
Arrangements. The Company shall notify the Trustee of its decision to
make payment of benefits directly prior to the time amounts are payable
to Participants or their Beneficiaries. In addition if the principal of
the Trust, and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the Arrangements,
the Company shall make the balance of each such payment as it falls
due. The Trustee shall notify the Company where principal and earnings
are not sufficient.
(d) A Participant may make application to the Trustee for an independent
decision as to the amount of benefits due under the Arrangements in the
event of a dispute between the Company and Participants. In making any
determination required or permitted to be made by the Trustee under
this Section, the Trustee shall, in each such case, reach its own
independent determination, in its absolute and sole discretion, as to
the Participant's or Beneficiary's entitlement to a payment of benefits
hereunder. In making its determination, the Trustee may consult with
and make such inquiries of such persons, including the Participant, the
Company, legal counsel, actuaries or other experts, as the Trustee may
reasonably deem necessary. Any reasonable costs incurred by the Trustee
in arriving at its determination shall be reimbursed by the Company
and, to the extent not paid by the Company within a reasonable time,
shall be charged to the Trust. The Company waives any right to contest
any amount paid over by the Trustee hereunder pursuant to a good faith
determination made by the Trustee notwithstanding any claim by or on
behalf of the Company (absent a manifest abuse of discretion by the
Trustee) that such payments should not be made.
(e) The Trustee agrees that it will not itself institute any action at law
or at equity, whether in the nature of an accounting, interpleading
action, request for a declaratory judgment or otherwise, requesting a
court or administrative or quasi-judicial body to make the
determination required to be made by the Trustee under this Section 2
in the place and stead of the Trustee. The Trustee may institute an
action to collect a contribution due the Trust following a Change of
Control or in the event that the Trust should ever experience a
short-fall in the amount of assets necessary to make payments pursuant
to the terms of the Arrangements.
(f) Subsequent to a Change of Control, in the event any Participant or his
Beneficiary is determined to be subject to federal, state or local
income tax on any amount under any Arrangement prior to the time of
actual payment of benefits thereunder (whether or not due to the
establishment of or contributions to this Trust), the Trustee shall
distribute a Gross-Up Payment as hereinafter defined as soon thereafter
as practicable to such Participant or Beneficiary. An amount or benefit
shall be determined to be subject to federal income tax upon the
earliest of: (a) a final determination by the United States Internal
Revenue Service addressed to the Participant or his Beneficiary which
is not appealed to the courts; (b) a final determination by the United
States Tax Court or any other federal court affirming any such
determination by the Internal Revenue Service; or (c) an opinion by the
Company's tax counsel, addressed to the Company and the Trustee, to the
effect that by reason of Treasury Regulations, provisions of the
Internal Revenue
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Code, published Internal Revenue Service rulings, court decisions or
other substantial precedent, such amount or benefit is subject to
federal income tax prior to payment. The Company shall undertake at its
sole expense to defend any tax claims described herein which the
Internal Revenue Service asserts against any Participant or
Beneficiary, and to pay all fees and costs related to such defense
including attorney fees and cost of appeal, and shall have the sole
authority to determine whether or not to appeal any determination that
the Internal Revenue Service or a lower court makes. The Company also
agrees to reimburse any Participant or Beneficiary for any interest or
penalties in respect of tax claims hereunder upon receipt of
documentation of same.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO THE TRUST
BENEFICIARY WHEN THE COMPANY IS INSOLVENT
(a) The Trustee shall cease payment of benefits if the Company is
Insolvent. The Company shall be considered "Insolvent" for purposes of
this Trust Agreement if (i) the Company is unable to pay its debts as
they become due, or (ii) the Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of general creditors of
the Company under federal and state law as set forth below.
(1) The Board of Directors and the Chief Executive Officer of the
Company shall have the duty to inform the Trustee in writing
that the Company is Insolvent. If a person claiming to be a
creditor of the Company alleges in writing to the Trustee that
the Company has become Insolvent, the Trustee shall determine
whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payment of
benefits under the Arrangements or Gross-Up Payments.
(2) Unless the Trustee has actual knowledge that the Company is
Insolvent, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is
Insolvent, the Trustee shall have no duty to inquire whether
the Company is Insolvent. The Trustee may in all events rely
on such evidence concerning the Company's solvency as may be
furnished to the Trustee and that provides the Trustee with a
reasonable basis for making a determination concerning the
Company's solvency.
(3) If at any time the Trustee has determined that the Company is
Insolvent, the Trustee shall discontinue payments of benefits
under the Arrangements or Gross-Up Payments and shall hold the
assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Participants or their Beneficiaries to
pursue their rights as general creditors of the Company with
respect to benefits due under the Arrangements or otherwise.
(4) The Trustee shall resume the payment of benefits under the
Arrangements in
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accordance with Section 2 and 3 of this Trust Agreement only
after the Trustee has determined that the Company is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee discontinues
the payments from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the benefits due under the Arrangements to
Participants and Beneficiaries and Gross-Up Payments due to
Participants or their Beneficiaries under the terms of the Arrangements
for the period of such discontinuance, plus earnings on amounts not
paid during the period of such discontinuance, less the aggregate
amount of any such payments made by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4. PAYMENTS WHEN A SHORT-FALL OF THE TRUST ASSETS OCCURS
(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 Arrangements in a
pro rata manner:
(b) 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. 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.
SECTION 5. PAYMENTS TO THE COMPANY
Except as provided in Section 3 hereof, after the Trust has become irrevocable,
the Company shall have no right or power to direct the Trustee to return to the
Company or to divert to others any of the Trust assets before all payments of
benefits and/or of Gross-Up Payments have been made pursuant to the terms of the
Arrangements and all fees and expenses of the Trust have been paid.
SECTION 6. INVESTMENT AUTHORITY
(a) The Trustee shall not be liable in discharging its duties hereunder,
including without limitation its duty to invest and reinvest the Fund,
if it acts for the exclusive benefit of the Participants and their
Beneficiaries, in good faith and as a prudent person would act in
accomplishing a similar task and in accordance with the terms of this
Trust Agreement and any applicable federal or state laws, rules or
regulations.
(b) Subject to investment guidelines agreed to in writing from time to time
by the Company and the Trustee prior to a Change of Control, the
Trustee shall have the power in investing and reinvesting the Fund in
its sole discretion:
(1) To invest and reinvest in any readily marketable common and
preferred stocks, bonds, notes, debentures (including
convertible stocks and securities but not
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including any stock or security of the Trustee other than a de
minimis amount held in a mutual fund), certificates of deposit
or demand or time deposits (including any such deposits with
the Trustee) and shares of investment companies and mutual
funds, without being limited to the classes or property in
which the Trustees are authorized to invest by any law or any
rule of court of any state and without regard to the
proportion any such property may bear to the entire amount of
the Fund. Without limitation, the Trustee may invest the Trust
in any investment company (including any investment company or
companies for which AmSouth Bank or an affiliated company acts
as the investment advisor {"Special Investment Companies"})
or, any insurance contract or contracts issued by an insurance
company or companies in each case as the Trustee may determine
provided that the Trustee may in its sole discretion keep such
portion of the Trust in cash or cash balances for such
reasonable periods as may from time to time be deemed
advisable pending investment or in order to meet contemplated
payments of benefits;
(2) To commingle for investment purposes, upon direction of the
Company, all or any portion of the Fund with assets of any
other similar trust or trusts established by the Company with
the Trustee for the purpose of safeguarding deferred
compensation or retirement income benefits of its employees
and/or directors;
(3) To retain any property at any time received by the Trustee;
(4) To sell or exchange any property held by it at public or
private sale, for cash or on credit, to grant and exercise
options for the purchase or exchange thereof, to exercise all
conversion or subscription rights pertaining to any such
property and to enter into any covenant or agreement to
purchase any property in the future;
(5) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan
relating to property held by it and to consent to or oppose
any such plan or any action thereunder or any contract, lease,
mortgage, purchase, sale or other action by any person;
(6) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary
power thereto, and to pay part of the expenses and
compensation thereof and any assessments levied with respect
to any such property to deposited;
(7) To extend the time of payment of any obligation held by it;
(8) To hold uninvested any moneys received by it, without
liability for interest thereon, but only in anticipation of
payments due for investments, reinvestments, expenses or
disbursements;
(9) To exercise all voting or other rights with respect to any
property held by it and to grant proxies, discretionary or
otherwise;
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(10) For the purposes of the Trust, to borrow money from others, to
issue its promissory note or notes therefor, and to secure the
repayment thereof by pledging any property held by it;
(11) To employ suitable contractors and counsel, who may be counsel
to the Company or to the Trustee, and to pay their reasonable
expenses and compensation from the Fund to the extent not paid
by the Company;
(12) To register investments in its own name or in the name of a
nominee; to hold any investment in bearer form; and to combine
certificates representing securities with certificates of the
same issue held by it in other fiduciary capacities or to
deposit or to arrange for the deposit of such securities with
any depository, even though, when so deposited, such
securities may be held in the name of the nominee of such
depository with other securities deposited therewith by other
persons, or to deposit or to arrange for the deposit of any
securities issued or guaranteed by the United States
government, or any agency or instrumentality thereof,
including securities evidenced by book entries rather than by
certificates, with the United States Department of the
Treasury or a Federal Reserve Bank, even though, when so
deposited, such securities may not be held separate from
securities deposited therein by other persons; provided,
however, that no securities held in the Fund shall be
deposited with the United States Department of the Treasury or
a Federal Reserve Bank or other depository in the same account
as any individual property of the Trustee, and provided,
further, that the books and records of the Trustee shall at
all times show that all such securities are part of the Trust
Fund;
(13) Subject to Section 2(d), to settle, compromise or submit to
arbitration any claims, debts or damages due or owing to or
from the Trust, respectively, to commence or defend suits or
legal proceedings to protect any interest of the Trust, and to
represent the Trust in all suits or legal proceedings in any
court or before any other body or tribunal; provided, however,
that the Trustee shall not be required to take any such action
unless it shall have been indemnified by the Company to its
reasonable satisfaction against liability or expenses it might
incur therefrom;
(14) Subject to Section 7, to hold and retain policies of life
insurance, annuity contracts, and other property of any kind
which policies are contributed to the Trust by the Company or
any subsidiary of the Company or are purchased by the Trustee;
(15) To hold any other class of assets which may be contributed by
the Company and that is deemed reasonable by the Trustee,
unless expressly prohibited herein; and
(16) Generally, to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or desirable
for the protection of the Fund.
(c) The Trustee shall have the right, in its sole discretion, to delegate
its investment
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responsibility to an Investment Manager who may be an affiliate of the
Trustee. In the event the Trustee shall exercise this right, the
Trustee shall remain, at all times responsible for the acts of an
Investment Manager. The Trustee shall have the right to purchase an
insurance policy or an annuity to fund the benefits of the
Arrangements.
(d) The Company shall have the right at any time, and from time to time in
its sole discretion, to substitute assets of equal fair market value
and liquidity for any asset held by the Trust. This right is
exercisable by the Company in a nonfiduciary capacity without the
approval or consent of any person in a fiduciary capacity. Following a
Change of Control, such substitution of assets is subject to the
acceptance of the Trustee.
SECTION 7. INSURANCE CONTRACTS
(a) To the extent that the Trustee is directed by the Company prior to a
Change of Control to invest part or all of the Trust Fund in insurance
contracts, the type and amount thereof shall be specified by the
Company. The Trustee shall be under no duty to make inquiry as to the
propriety of the type or amount so specified.
(b) Each insurance contract issued shall provide that the Trustee shall be
the owner thereof with the power to exercise all rights, privileges,
options and elections granted by or permitted under such contract or
under the rules of the insurer. The exercise by the Trustee of any
incidents of ownership assigned or delegated to it under any contract
shall, prior to a Change of Control, be subject to the direction of the
Company. After a Change of Control, the Trustee shall have all such
rights.
(c) The Trustee shall have no power to name a beneficiary of the policy
other than the Trust, to assign the policy (as distinct from conversion
of the policy to a different form) other than to a successor Trustee,
or to loan to any person the proceeds of any borrowing by it against an
insurance policy held in the Trust Fund.
(d) No insurer shall be deemed to be a party to the Trust and an insurer's
obligations shall be measured and determined solely by the terms of
contracts and other agreements executed by the insurer.
SECTION 8. DISPOSITION OF INCOME
(a) Prior to a Change of Control, all income received by the Trust, net of
expenses and taxes, may be returned to the Company at the written
direction of the Company or accumulated and reinvested within the
Trust.
(b) Following a Change of Control, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested within the
Trust.
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SECTION 9. ACCOUNTING BY THE TRUSTEE
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between the
Company and the Trustee within forty-five (45) days following the close of each
calendar year and within forty-five (45) days after the removal or resignation
of the Trustee. The Trustee shall deliver to the Company a written account of
its administration of the Trust during such year or during the period from the
close of the last preceding year to the date of such removal or resignation
setting forth all investments, receipts, disbursements and other transactions
effected by it, including a description of all securities and investments
purchased and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and showing all
cash, securities and other property held in the Trust at the end of such year or
as of the date of such removal or resignation, as the case may be. The Company
may approve such account by an instrument in writing delivered to the Trustee.
In the absence of the Company's filing with the Trustee objections to any such
account within ninety (90) days after its receipt, the Company shall be deemed
to have so approved such account. In such case, or upon the written approval by
the Company of any such account, the Trustee shall, to the extent permitted by
law, be discharged from all liability to the Company for its acts or failures to
act described by such account. The foregoing, however, shall not preclude the
Trustee, any participant or beneficiary from having its accounting settled by a
court of competent jurisdiction. The Trustee shall be entitled to hold and to
commingle the assets of the Trust in one Fund for investment purposes but at the
direction of the Company prior to a Change of Control, the Trustee shall create
one or more sub-accounts.
SECTION 10. RESPONSIBILITY OF THE TRUSTEE
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in
like capacity and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims, provided,
however, that the Trustee shall incur no liability to any person for
any action taken pursuant to a direction, request or approval given by
the Company which is contemplated by, and in conformity with, the terms
of the Arrangements or this Trust and is given in writing by the
Company. In the event of a dispute between the Company and a party, the
Trustee may apply to a court of competent jurisdiction to resolve the
dispute, subject, however to Section 2(d) hereof.
(b) The Company hereby indemnifies the Trustee against losses, liabilities,
claims, costs and expenses in connection with the administration of the
Trust, unless resulting from the negligence or willful misconduct of
Trustee. To the extent the Company fails to make any payment on account
of an indemnity provided in this paragraph 10(b), in a reasonably
timely manner, the Trustee may obtain payment from the Trust. If the
Trustee undertakes or defends any litigation arising in connection with
this Trust or to protect a Participant's or Beneficiary's rights under
the Arrangements, the Company agrees to indemnify the Trustee against
the Trustee's costs, reasonable expenses and liabilities (including,
without limitation, attorneys' fees and expenses) relating thereto and
to be primarily liable for such payments. If the Company does not pay
such costs, expenses and liabilities in a reasonably timely manner, the
Trustee may obtain payment from the Trust.
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(c) Prior to a Change of Control, the Trustee may consult with legal
counsel (who may also be counsel for the Company generally) with
respect to any of its duties or obligations hereunder. Following a
Change of Control, the Trustee may select independent legal counsel and
may consult with counsel or other experts with respect to its duties
and with respect to the rights of Participants or their Beneficiaries
under the Arrangements.
(d) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder and may rely on
any determinations made by such agents and information provided to it
by the Company.
(e) The Trustee shall have, without exclusion, all powers conferred on the
Trustee by applicable law, unless expressly provided otherwise herein.
(f) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or to applicable law, the Trustee shall not have any
power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of
section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.
SECTION 11. COMPENSATION AND EXPENSES OF THE TRUSTEE
The Trustee's compensation shall be as agreed in writing from time to time by
the Company and the Trustee. The Company shall pay all administrative expenses
and the Trustee's fees and shall promptly reimburse the Trustee for any fees and
expenses of its agents. If not so paid within thirty days of being invoiced, the
fees and expenses shall be paid from the Trust. To the extent such fees and
expenses are charged against the Trust, the Company shall immediately deposit in
the Trust an amount equal to the fees and expenses charged by the Trustee.
SECTION 12. RESIGNATION AND REMOVAL OF THE TRUSTEE
(a) Prior to a Change of Control, the Trustee may resign at any time by
written notice to the Company, which shall be effective sixty (60) days
after receipt of such notice unless the Company and the Trustee agree
otherwise. Following a Change of Control, the Trustee may resign only
after the appointment of a successor Trustee.
(b) The Trustee may be removed by the Company on sixty days (60) days
notice or upon shorter notice accepted by the Trustee prior to a Change
of Control. Subsequent to a Change of Control, the Trustee may only be
removed by the Company with the consent of a majority of the
Participants.
(c) If the Trustee resigns within two years after a Change of Control, as
defined herein, the Company or, if the Company fails to act within a
reasonable period of time following such resignation, the Trustee shall
apply at the expense of the Company to a court of competent
jurisdiction for the appointment of a successor Trustee or for
instructions.
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(d) Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within sixty (60)
days after receipt of acceptance of an appointment as trustee by a
successor trustee, unless the Company extends the time limit.
(e) If the Trustee resigns or is removed, a successor shall be appointed by
the Company, in accordance with Section 13 hereof, by the effective
date of resignation or removal under paragraph(s) (a) or (b) of this
section. If no such appointment has been made, the Trustee may apply to
a court of competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
SECTION 13. APPOINTMENT OF SUCCESSOR
(a) If the Trustee resigns or is removed in accordance with Section 12 (a)
or (b) hereof, the Company may appoint, subject to Section 12, another
bank, not an affiliate of the Company or any other grantor, or any
third party national banking association with a market capitalization
exceeding $5 billion to replace the Trustee upon resignation or
removal. The successor Trustee shall have all of the rights and powers
of the former Trustee, including ownership rights in the Trust. The
former Trustee shall execute any instrument necessary or reasonably
requested by the Company or the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets,
subject to Section 8 and 9 hereof. The successor Trustee shall not be
responsible for and the Company shall indemnify and defend the
successor Trustee from any claim or liability resulting from any action
or inaction of any prior Trustee or from any other past event, or any
condition existing at the time it becomes successor Trustee.
SECTION 14. AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended by a written instrument executed by
the Trustee and the Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Arrangements or shall
make the Trust revocable after it has become irrevocable in accordance
with Section 1 (c) hereof.
(b) The Trust shall not terminate until the date on which Participants and
their Beneficiaries have received all of the benefits due to them, or
all required premiums have been paid to the Insurance Company,
whichever occurs earlier, under the terms and conditions of the
Arrangements and all fees and expenses of the Trust have been paid.
(c) Upon written approval of all remaining Participants or Beneficiaries
entitled to payment of benefits, the Company may terminate this Trust
prior to the time all benefit payments under the Arrangements have been
made. All assets in the Trust at termination shall be
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returned to the Company after payment of all fees and expenses of the
Trust.
(d) This Trust Agreement may not be amended or terminated by the Company
for two (2) years following a Change of Control without the written
consent of a majority of the Participants except, if in the opinion of
counsel satisfactory to the Trustee, such amendment is necessary to
maintain the tax status of this Trust, the deferred compensation status
of the Arrangements, or the applicability of the Employee Retirement
Income Security Act of 1974, as amended, to this Trust.
SECTION 15. CHANGE OF CONTROL
(a) For purposes of this Trust, Change of Control shall mean:
(1) 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;
(2) 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;
(3) 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) or 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 5%
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;
(4) 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
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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
(5) 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 (5) 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 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 (3) or (4) unless
otherwise determined in a specific case by majority vote of the Board, a "Change
in Control" shall not be deemed to have occurred for purposes of Sections (3) or
(4) 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 a 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.
(b) The General Counsel of the Company shall have the specific authority to
determine whether a Change of Control has transpired under the guidance
of Section 15(a) and shall be required to give the Trustee notice of a
Change of Control. The Trustee shall be entitled to rely upon such
notice, but if the Trustee receives notice of a Change of Control from
another source, the Trustee shall, in its sole and absolute discretion,
make its own independent determination after notifying the General
Counsel of the Company and allowing five business days for a response.
SECTION 16. COMMUNICATIONS
(a) Communications to the Company shall be addressed to Wolverine Tube,
Inc., 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000, Attention:
General Counsel; provided, however, that upon the Company's written
request, such communications shall be sent to such other address as the
Company may specify.
(b) Communications to the Trustee shall be addressed to AmSouth Bank, 0000
0xx Xxxxxx Xxxxx; Xxxxxxxxxx, Xxxxxxx 00000, Attention: Retirement
Services Group; provided, however, that upon the Trustee's written
request, such communications shall be sent to such other address as the
Trustee may specify.
(c) No communication shall be binding on the Trustee until it is received
by the Trustee, no
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communication shall be binding on the Company until it is received by
the Company, and no communication shall be binding on any participant
or beneficiary until it is received by the participant or beneficiary.
(d) Any action of the Company pursuant to this Trust Agreement, including
all orders, requests, directions, instructions, approvals and
objections of the Company to the Trustee, shall be in writing, signed
on behalf of the Company by any duly authorized officer of the Company.
Any action by any Participant or Beneficiary shall be in writing. The
Trustee may rely on, and will be fully protected with respect to any
such action taken or omitted in reliance on, any information, order
request, direction, instruction, approval, objection, and list
delivered to the Trustee by the Company or, to the extent applicable
under this Trust Agreement, by a participant or beneficiary.
SECTION 17. MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating
the remaining provisions hereof.
(b) The Company hereby represents and warrants that all of the Arrangements
have been established, maintained and administered in accordance with
all applicable laws, including without limitation, ERISA. The Company
hereby indemnifies and agrees to hold the Trustee harmless from all
liabilities, including attorney's fees, relating to or arising out of
the establishment, maintenance and administration of the Arrangements.
To the extent the Company does not pay any of such liabilities in a
reasonably timely manner, the Trustee may obtain payment from the
Trust.
(c) Benefits payable to Participants and their Beneficiaries under this
Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process.
(d) This Trust Agreement and the Trust established hereunder shall be
governed by and construed, enforced, and administered in accordance
with the laws of the State of Alabama, and the Trustee shall be liable
to account only in the courts of the State of Alabama.
(e) This Trust Agreement shall be binding upon and inure to the benefit of
the Company and the Trustee and their respective successors and assigns
and the personal representatives of individuals.
(f) Each Participant or Beneficiary shall file with the Trustee such
pertinent information concerning himself, and any other person as the
Trustee shall specify, and the participant or beneficiary shall have no
rights nor be entitled to any benefits under the Trust unless such
information is filed by or with respect to him.
(g) In addition to any returns required by the Trustee by law, the Trustee
shall prepare and file such tax reports and other returns as the
Company and the Trustee may from time to time agree.
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(h) Any corporation into which the Trustee may be merged or with which it
may be consolidated, or any corporation resulting from any merger,
reorganization or consolidation to which the Trustee may be a party, or
any corporation to which all or substantially all the trust business of
the Trustee may be transferred shall be the successor of the Trustee
hereunder without the execution of filing of any instrument or the
performance of any act.
(i) Titles to the Sections of this Trust Agreement are included for
convenience only and shall not control the meaning or interpretation of
any provision of this Trust Agreement.
(j) This Trust Agreement may be executed in any number of counterparts,
each of which shall be deemed to be the original although the others
shall not be produced.
IN WITNESS WHEREOF, this Grantor Trust Agreement has been executed on behalf of
the parties hereto on the day and year first above written.
WOLVERINE TUBE, INC.
By
--------------------------------------
ATTEST:
Its:
----------------------------------- -------------------------------------
Secretary
[Corporate Seal]
AMSOUTH BANK
By:
--------------------------------------
ATTEST:
Its:
----------------------------------- -------------------------------------
Secretary
[Corporate Seal]
15
ATTACHMENT A
None
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ATTACHMENT B (as revised in 2003)
1) Change of Control Severance/Non-Compete Agreements with the following:
a) Xxxxxx Xxxxxxxx
b) Xxxxx Xxxxxx
c) Xxxxxx X. Xxxxxxx
d) Xxxxx Xxxx
e) Xxxxxxx Xxxxxx
f) Xxxx Xxx Xxxxxx
g) Xxxxx Xxxxxxx
h) Xxx Xxxxxx
i) Xxxxxx Xxxxxxx
2) Wolverine Tube, Inc. Supplemental Benefit Restoration Plan (1/1/94)
3) Wolverine Tube, Inc. 2002 Supplemental Executive Retirement Plan
17
