EMPLOYMENT AGREEMENT
This
EMPLOYMENT
AGREEMENT
(“Agreement”) dated and effective as of October 1, 2007 (the “Effective Date”)
by and between Xxxxx X. Xxxx (“Executive”) and Wolverine Tube, Inc., a Delaware
corporation (“Wolverine”).
WHEREAS,
Wolverine desires to employ Executive as Senior Vice-President, Finance and
Accounting through December 31, 2007 and, thereafter, commencing January 1,
2008, as Chief Financial Officer, and Executive desires to be employed by
Wolverine in such capacities upon the terms and conditions set forth in this
Agreement; and
WHEREAS,
Executive acknowledges that, in executing this Agreement, he has had a
reasonable opportunity to seek the advice of independent legal and tax counsel,
and has read and understood all of the terms and provisions of this
Agreement.
NOW,
THEREFORE,
in
consideration of the mutual promises and covenants contained herein and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Title;
Duties; Reporting.
(a) Title.
Wolverine hereby employs Executive, and Executive agrees to be employed, as
Senior Vice-President, Finance and Accounting through December 1, 2007 and
as
Chief Financial Officer of Wolverine commencing January 1, 2008, at its
headquarters in Huntsville, Alabama or at such other location as may be the
Wolverine’s headquarters in the future, according to the terms and conditions
set forth herein.
(b) Duties.
Executive will be responsible for all financial and accounting matters of
Wolverine consistent with the positions set forth in Section 1(a) above and
such
other tasks, duties, and responsibilities as may be established from time to
time by the Board of Directors of Wolverine (the “Board of Directors”) and/or
the Chief Executive Officer of Wolverine (“CEO”), and in the absence of a CEO,
the President and Chief Operating Officer of Wolverine. Executive agrees to
devote all or substantially all of his full business time, energy and skill
in
the performance of his duties to Wolverine and to perform faithfully and
efficiently such duties.
(c) Reporting
Responsibilities.
Executive shall report directly to the CEO; however, until that position is
filled, and at all other times during which the position of CEO is vacant,
Executive shall report to the President and Chief Operating Officer of
Wolverine.
2. Employment
Term.
Unless
earlier terminated as provided herein, the Executive’s employment under this
Agreement shall be for a term initially of three (3) years from the Effective
Date (the “Employment Term”). At the end of the initial three (3) year
Employment Term, the Employment Term shall be automatically extended for a
one
(1) year period unless written notice of non-extension is provided (a) by
Wolverine to the Employee at least sixty (60) days prior the end of the initial
three (3) year Employment Term or (b) by the Executive to Wolverine at least
one
hundred twenty (120) days prior to the end of the initial three (3) year
Employment Term.
3. Salary
and Benefits.
During
the Employment Term, Wolverine shall provide the following salary and benefits
to Executive:
(a) Relocation
Benefits.
Wolverine will provide the Executive with full relocation benefits and
reimbursement of expenses in order to transition and transfer Executive from
his
current residence in Ft. Xxxxx, Indiana to Huntsville, Alabama in accordance
with Wolverine’s policies and practices applicable generally to other peer
executives of Wolverine. If, during the Employment Term, Executive is required
by Wolverine to relocate again, Executive will be provided with full relocation
benefits and reimbursement of expenses in accordance with Wolverine’s then
current policies and practices generally applicable to other peer executives
of
Wolverine; provided, however, that in no event shall the relocation benefits
and
reimbursement of expenses be less than that provided to the Executive in
connection with his transition and transfer to Huntsville, Alabama as described
above.
(b) Signing
Bonus.
In
consideration for the Executive’s resignation from employment with his previous
employer and in consideration of the Executive’s entering into this Agreement,
Wolverine shall pay to the Executive a signing bonus in an amount equal to
$248,000.00 payable in three installments as follows (i) $90,000.00 shall be
paid to the Executive on the Effective Date; (ii) $90,000.00 shall be paid
to
the Executive on October 1, 2008 and (iii) $68,000.00 shall be paid to the
Executive on October 1, 2009.
(c) Base
Compensation.
Wolverine shall pay Executive an annual base salary (“Base Salary”), payable in
substantially equal installments in accordance with Wolverine’s normal payroll
practices, as follows:
(i) During
the first six months of the Employment Term, which shall begin on the Effective
Date and end on March 31, 2008, the Base Salary shall be equal to an annualized
rate of no less than $250,000.00.
(ii) Commencing
on April 1, 2008 and continuing for the remainder of the Employment Term, the
Base Salary shall be equal to an annualized rate of no less than $280,000.00
or
such higher annualized rate as may from time to time be determined by the Board
of Directors or its authorized committee.
(d) Annual
Bonus.
In
addition to the Base Salary, Executive will be eligible to receive an annual
cash bonus (“Annual Bonus”) with a target of 40% of the Executive’s Base Salary
for the year in which the Annual Bonus relates based upon achievement of certain
discretionary factors in accordance with and as set forth in Wolverine’s annual
incentive program.
(e) Long
Term Equity Incentive.
As an
additional component of Executive’s compensation, Executive shall be awarded an
option to purchase 325,000 shares of Wolverine common stock (the “Option”) in
accordance with the terms and conditions of the Wolverine Tube, Inc. 2007
Nonqualified Stock Option Plan and as may be in effect from time to time (the
“Plan”). The Option shall vest ratably over a five (5) year period measured from
the date of grant. The exercise price for the Option shall be as follows (i)
40%
of the Option (130,000 shares) at $1.10 per share, (ii) 30% of the Option
(97,500 shares) at $1.40 per share and (iii) 30% of the Option (97,500) at
$2.20
per share. The Option shall be equitably adjusted following the closing of
the
Rights Offering (as defined in the Plan).
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(f) Welfare,
Retirement and Fringe Benefits.
(i) Executive
shall be eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs provided by Wolverine
(including, without limitation, life insurance, disability insurance, vacation
pay, medical insurance prescription drug coverage, dental insurance and salary
continuance) to the extent applicable generally to other peer executives of
Wolverine.
(ii) Executive
shall be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other peer executives
of Wolverine.
(iii) Executive
will be provided certain fringe benefits. These fringe benefits will include
but
not be limited to: (A) a cash car allowance of $800.00 per month; (B)
reimbursement for expenses incurred by Executive for preparation of state and
federal income tax returns; (C) professional tax and financial planning
services, including specific services related to Executive’s relocation to
Huntsville, Alabama; (D) reimbursement for premiums paid by Executive to
maintain the long-term care insurance policy made available to Executive through
his previous employer, The Alpine Group, Inc.; and (E) advancement of membership
initiation fees of up to $18,500.00 in connection with Executive’s inclusion in
a Wolverine corporate membership in a country club located in the Huntsville,
Alabama area as well as payment of monthly dues (but excluding usage charges)
for such membership.
(g) Reimbursement
of Business Expenses.
Wolverine shall reimburse Executive for all out-of-pocket business expenses
incurred by Executive in the course of his duties, in accordance with
Wolverine’s policies as in effect from time to time. Executive shall be required
to submit to Wolverine appropriate documentation supporting such out-of-pocket
business expenses as a prerequisite to reimbursement in accordance with such
policies.
4. Termination
Provisions.
(a) Termination
by Wolverine for Cause or by Executive without Good Reason.
Wolverine may terminate Executive’s employment immediately for Cause (as defined
in Section 6(a) below) and Executive may terminate his employment without Good
Reason (as defined in Section 6(b) below) upon providing Wolverine at least
one
hundred twenty (120) days advance written notice. Upon such termination,
Wolverine shall provide Executive with the following: (i) severance benefits,
if
any, as provided under Wolverine’s general procedures and practices; (ii)
payment of the pro rata portion of the Base Salary through and including the
date of termination; and (iii) such employee benefits as may be due the
Executive pursuant to the provisions of the benefit plans which govern such
issues (the payments and benefits referred to in (ii) and (iii) above shall
be
collectively referred to as the “Accrued Obligations”). In addition, upon any
such termination of Executive’s employment pursuant to this Section 4(a), any
remaining unpaid installments of the Signing Bonus described in Section 2(b)
shall be forfeited and the Executive shall have no further rights with respect
thereto.
(b) Termination
by Wolverine without Cause.
Wolverine may terminate Executive’s employment without Cause upon sixty (60)
days prior written notice to the Executive. Upon such termination, Wolverine
shall provide Executive with the following:
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(i) All
stock
options granted by Wolverine and held by Executive as of the effective date
of
such termination, to the extent not already vested, shall become vested to
the
next succeeding vest date set forth in the award agreement and plan governing
such option.
(ii) Continued
payment of the Executive’s Base Salary for the remainder of the Employment Term,
payable in substantially equal installments in accordance with Wolverine’s
normal payroll practices; provided however, in the event such continuation
of
the Executive Base Salary is considered deferred compensation subject to Section
409A of the Code and Executive is a “specified employee” within the meaning of
Section 409A of the Code (as determined in accordance with the methodology
established by Wolverine as in effect on the date of termination), the continued
payment of the Executive’s Base Salary under this Section 4(b)(i) shall be
delayed until the first business day after the date that is six (6) months
following Executive’s “separation from service” within the meaning of Section
409A of the Code at which time all payments so-delayed shall be provided to
the
Executive in one lump sum.
(iii) Health
insurance benefits for a period of eighteen (18) months following the effective
date of such termination under the same or similar arrangement(s) and plan(s)
as
Executive’s health insurance arrangement(s) and plan(s) in effect at the time of
such termination.
(iv) The
Accrued Obligations.
(v) Any
remaining unpaid installments of the Signing Bonus described in Section 2(b)
shall be paid to the Executive on the dates set forth in Section
2(b).
(c) Termination
by Executive for Good Reason.
Executive may terminate his employment for Good Reason upon providing Wolverine
at least ninety (90) days advance written notice. Upon such termination,
Wolverine shall provide Executive with the following:
(i) Continued
payment of the Executive’s Base Salary for the remainder of the Employment Term,
payable in substantially equal installments in accordance with Wolverine’s
normal payroll practices; provided however, in the event such continuation
of
the Executive Base Salary is considered deferred compensation subject to Section
409A of the Code and Executive is a “specified employee” within the meaning of
Section 409A of the Code (as determined in accordance with the methodology
established by Wolverine as in effect on the date of termination), the continued
payment of the Executive’s Base Salary under this Section 4(c)(i) shall be
delayed until the first business day after the date that is six (6) months
following Executive’s “separation from service” within the meaning of Section
409A of the Code at which time all payments so-delayed shall be provided to
the
Executive in one lump sum.
(ii) Subject
to Section 7 below, all stock options granted by Wolverine and held by Executive
as of the date of such termination, to the extent not already vested by their
terms, shall become immediately vested and exercisable as of the effective
date
of such termination. The value, if any, attributable to the acceleration of
vesting of such stock options that constitutes a parachute payment to Executive
under Sections 208G or 4999 of the Internal Revenue Code of 1986, as amended
(the “Code”), as determined under Section 7 of this Agreement is referred to
herein as the “Option Parachute Value.”
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(iii) Health
insurance benefits for a period of eighteen (18) months following the effective
date of such termination under the same or similar arrangement(s) and plan(s)
as
Executive’s health insurance arrangement(s) and plan(s) in effect at the time of
such termination.
(iv) The
Accrued Obligations.
(v) Any
remaining unpaid installments of the Signing Bonus described in Section 2(b)
shall be paid to the Executive on the dates set forth in Section
2(b).
(d) Death
or Disability.
Wolverine may terminate Executive’s employment due to Executive’s death or
disability (if and only to the extent Executive is eligible for benefits under
Wolverine’s group long-term disability plan or would be eligible for such
benefits were Executive a participant in said plan). Upon such termination,
Wolverine shall provide Executive (or his estate as the case may be) with the
following: (i) severance benefits, if any, as provided under Wolverine’s general
procedures and practices, (ii) the Accrued Obligations, (iii) any remaining
unpaid installments of the Signing Bonus described in Section 2(b) shall be
paid
to the Executive on the dates set forth in Section 2(b) and (iv) in the event
of
Executive’s termination of employment due to disability, health insurance
benefits for a period of eighteen (18) months following the effective date
of
such termination under the same or similar arrangement(s) and plan(s) as
Executive’s health insurance arrangement(s) and plan(s) in effect at the time of
such termination.
(e) Expiration
of Employment Term.
The
Executive’s employment shall terminate upon the expiration of the Employment
Term. Upon such termination, Wolverine shall provide Executive with (i) the
Accrued Obligations and (ii) health insurance benefits for a period of eighteen
(18) months following the effective date of such termination under the same
or
similar arrangement(s) and plan(s) as Executive’s health insurance
arrangement(s) and plan(s) in effect at the time of such
termination.
(e) Limits.
Wolverine’s obligation to make to make any payments to Executive upon
termination of Executive without Cause or for Good Reason as described in
Sections 4(b) and 4(c) respectively (other than the Accrued Obligations) is
contingent upon the effectiveness of Executive’s execution of a Waiver and
Release of Claims substantially in the form attached hereto as Appendix B (the
“Release”). On any termination entitling Executive to the payments and benefits
under Sections 4(b) or 4(c), Wolverine and its affiliates shall have no further
obligation to make payments under this Agreement other than as specifically
provided for in Sections 4(b) or 4(c), and Executive shall not be eligible
to
receive any other severance benefits under any severance or termination plan,
program, policy or arrangement maintained by Wolverine or its
affiliates.
5. Secrecy,
Non-Solicitation and Non-Competition.
(a) Secrecy.
During
the Employment Term and thereafter, the Executive covenants and agrees that
he
will not, except in performance of the Executive’s obligations to Wolverine, or
with the prior written consent of Wolverine pursuant to the authority granted
by
a resolution of the Board of Directors, directly or indirectly, disclose any
secret or confidential information that he may learn or has learned by reason
of
his association with Wolverine or use any such information. The term “secret or
confidential information” includes, without limitation, information not
previously disclosed to the public or to the trade by Wolverine’s management
with respect to Wolverine’s products, facilities and methods, trade secrets and
other intellectual property, systems, procedures, manuals, confidential reports,
products price lists, customer lists, financial information (including the
revenues, costs or profits associated with any of Wolverine’s products),
business plans, prospects, employee or employees, compensation, or opportunities
but shall exclude any information already in the public domain which has been
disclosed to the public during the normal course of Wolverine’s
business.
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(b) Customer
Protection.
During
the Employment Term and for a period of one (1) year following the termination
of the Executive’s employment for any reason, the Executive covenants and agrees
that he will not solicit or attempt to solicit any business from Wolverine’s
customers, including actively sought prospective customers, with whom the
Executive had Material Contact during his employment, for the purpose of
providing products or services competitive with those provided by Wolverine.
Material Contacts exist between the Executive and each customer or prospective
customers with whom Wolverine were coordinated or supervised by the Executive,
or about whom the Executive obtained trade secrets or confidential information
as a result of the Executive’s association with Wolverine.
(c) Non-solicitation
of Employees.
During
the Employment Term and for a period of one (1) year following the termination
of the Executive’s employment for any reason, the Executive covenants and agrees
that he shall not directly or indirectly, on his behalf or on behalf of any
person or other entity; solicit or induce, or attempt to solicit or induce,
any
person who, on the date hereof or at anytime during the Employment Term, is
an
employee of Wolverine, to terminate his or her employment with Wolverine,
whether expressed in a written or oral agreement or understanding or is
otherwise an “at-will” employee.
(d) Noncompetition.
During
the Employment Term and for a period of one (1) year following the termination
of the Executive’s employment for any reason, the Executive covenants and agrees
that he will not, directly or indirectly, compete against Wolverine within
the
United States in any capacity for another company or entity that designs,
produces, sells, or distributes copper tubing, including, but not limited to,
those companies listed on Appendix A hereto.
(e) Equitable
Relief.
Executive acknowledges and agrees that the services performed by him are
special, unique and extraordinary in that, by reason of the Executive’s
employment, the Executive may acquire confidential information and trade secrets
concerning the operation of Wolverine, or that the Executive may have contact
with or obtain knowledge of Wolverine’s customers or prospects, the use or
disclosure of which could cause Wolverine substantial loss and damages, which
could not be readily calculated and for which no remedy at law would be
adequate. Accordingly, the Executive acknowledges and agrees that Wolverine
shall be entitled to obtain a temporary restraining order and/or a preliminary
or permanent injunction restraining the Executive from engaging in activities
prohibited by this Section 5 or such other relief as may be required to
specifically enforce any of the covenants in this Section 5. The Executive
acknowledges and agrees that Wolverine shall be entitled to its attorneys’ fees
and court costs should Wolverine pursue legal action to enforce its rights
under
this Section 5.
(f) Survival.
Any
termination of Executive’s employment, of the Employment Term or of this
Agreement (or breach of this Agreement by Wolverine or Executive) shall have
no
effect on the continuing operation of this Section 5.
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6. Definitions.
(a) Definition
of Cause.
For
purposes of this Agreement, termination for Cause shall mean termination of
Executive’s employment by Wolverine because of: (i) a material breach by
Executive of his fiduciary duties to Wolverine; (ii) Executive’s failure or
refusal to follow the Wolverine’s written policies after being given written
notice of said failure or refusal and failing to rectify same within 30 days;
(iii) Executive’s conviction of (and should Executive appeal said conviction,
full adjudication of said conviction), or plea of guilty, to a felony; and/or
(iv) Executive’s continuing and willful refusal to act as directed by the CEO or
Chairman of the Board of Directors (other than refusal resulting from incapacity
due to physical or mental illness), after written notice is delivered to
Executive by the CEO or Chairman of the Board of Directors which specifically
identifies said refusal and sets forth a plan of corrective action.
Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated for Cause
hereunder unless and until there shall have been delivered to the Executive
a
termination notice from the Board of Directors that (x) states the Executive
is
being terminated for Cause, (y) indicates the subsection of this definition
Wolverine is relying on and (z) provides reasonable detail of the facts
providing the basis for that reliance and during a reasonable period to cure
thereafter (at least 30 days) Executive has failed to cure in all material
respects any default or other circumstance upon which the termination for Cause
is proposed to be based. Such determination may only be made by the Board of
Directors and Executive shall be permitted to respond and defend himself before
the Board of Directors with legal counsel. The failure by Wolverine to include
any fact in a termination notice that contributes to a showing of Cause does
not
preclude Wolverine from asserting that fact in enforcing its rights under this
Agreement.
(b) Definition
of Good Reason.
For
purposes of this agreement, Good Reason shall mean termination of Executive’s
employment by Executive following the occurrence of a Change in Control, and
of
the occurrence within not later than two years following such Change in Control
of: (i) a material diminution of Executive’s Base Salary in effect immediately
prior to the Change in Control; (ii) a material diminution in Executive’s
authority, duties or responsibilities in effect immediately prior to the Change
in Control; (iii) a relocation of the Executive’s principal place of employment
to a location outside the United States without the Executive’s prior written
consent; and/or (iv) any other action or inaction that constitutes a material
breach by Wolverine of this Agreement.
Notwithstanding
the foregoing, Executive shall not been deemed to have terminated his employment
for Good Reason hereunder unless Executive shall have delivered to Wolverine
a
termination notice within thirty (30) days of the initial existence of the
condition giving rise to Good Reason that (x) states the Executive is
terminating his employment for Good Reason, (y) indicates the subsection of
this
definition that Executive is relying on and (y) provides reasonable detail
of
the facts providing the basis for that reliance and during a reasonable period
to cure thereafter (at least 30 days) Wolverine has failed to cure in all
material respects any default or other circumstance upon which the termination
for Good Reason is proposed to be based. The failure by Executive to include
any
fact in a termination notice that contributes to a showing of Good Reason does
not preclude Executive from asserting that fact in enforcing his rights under
this Agreement.
(c) Definition
of Change of Control.
For
purposes of this Agreement, Change of Control shall mean:
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(i) The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (A)
the
then outstanding shares of common stock of Wolverine (the “Outstanding Wolverine
Common Stock”) or (B) the combined voting power of the then outstanding voting
securities of Wolverine entitled to vote generally in the election of directors
(the “Outstanding Wolverine Voting Securities”); provided, however, that the
following acquisitions shall not constitute a Change of Control: (w) any
acquisition directly from Wolverine (excluding an acquisition by virtue of
the
exercise of a conversion privilege), (x) any acquisition by Wolverine or any
entity controlled by Wolverine or under common control with Wolverine, (y)
any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by Wolverine or any corporation controlled by Wolverine, (z) any
acquisition by any corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or consolidation,
the
conditions described in clauses (A), (B) and (C) of Section 6(c)(iii) below
are
satisfied; or
(ii) Individuals
who, as of the date hereof, constitute the Board of Directors (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board of
Directors; provided, however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election by Wolverine’s
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation
of
proxies or consents by or on behalf of a Person other than the Board of
Directors; or
(iii) Consummation
of a reorganization, merger, statutory share exchange or consolidation or
similar corporate transaction involving Wolverine or any of its subsidiaries,
a
sale or other disposition of all or substantially all of the assets of
Wolverine, or the acquisition of assets or stock of another entity by Wolverine
or any of its subsidiaries (each, a “Business Combination”), in each case,
unless, following such Business Combination, (A) all or substantially all of
the
individuals and entities that were the beneficial owners of the Outstanding
Wolverine Common Stock and the Outstanding Wolverine Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common stock and
the
combined voting power of the then-outstanding voting securities entitled to
vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation that, as a result of such transaction, owns Wolverine or all or
substantially all of Wolverine’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership
immediately prior to such Business Combination of the Outstanding Wolverine
Common Stock and the Outstanding Wolverine Voting Securities, as the case may
be, (B) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of Wolverine or
such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then-outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then-outstanding voting
securities of such corporation, except to the extent that such ownership existed
prior to the Business Combination, and (C) at least a majority of the members
of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution
of
the initial agreement or of the action of the Board of Directors providing
for
such Business Combination; or
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(iv) Approval
by the shareholders of Wolverine of a complete liquidation or dissolution of
Wolverine.
(v) Notwithstanding
anything herein to the contrary, any Business Combination or any acquisition
by
any Person of beneficial ownership of Outstanding Wolverine Common Stock or
Outstanding Wolverine Voting Securities in which the acquiring Person is,
directly or indirectly, The Alpine Group, Inc., Plainfield Special Situations
Master Fund Limited or any affiliate(s) thereof (or any combination thereof)
or
any Person acting in concert with The Alpine Group, Inc., Plainfield Special
Situations Master Fund Limited or any affiliate(s) thereof (or any combination
thereof) shall not be a Change of Control for purposes of this
Agreement.
7. Golden
Parachute Considerations.
In the
event it shall be determined that the amount of any payments and/or benefits
provided to Executive pursuant to the terms of this Agreement or otherwise
would
be subject to the excise tax imposed by Section 4999 of the Code or to any
similar tax imposed by federal, state or local law, or any other revenue system
to which Executive may be subject (the “Excise Tax”), then, the Option Parachute
Value shall be reduced (partially or completely) such that the amount of any
such payments and/or benefits shall be reduced to an amount that is equal to
299% of the Executive’s “base amount” as determined in accordance with Section
280G of the Code. If, after the reduction of the Option Parachute Value, the
amount of any other payments and/or benefits provided to Executive pursuant
to
the terms of this Agreement or otherwise would still be subject to the Excise
Tax, then the amount of such other payments and/or benefits shall also be
reduced such that the amount of all such payments or benefits are reduced to
an
amount that is equal to 299% of the Executive’s “base amount” as determined
above.
8. Section
409A.
To the
extent required to comply with Section 409A of the Code (and the regulations
thereunder), any compensation to be paid or benefits to be provided in
connection with Executive’s termination of employment will be delayed until the
earliest day on which such payments could be made or benefits provided in
compliance (at which point all payments so-delayed shall be provided in one
lump
sum), provided that there shall not be a lapse in health insurance coverage
that
may be required to be continued pursuant to the terms and conditions of Sections
4(b) and (c). Any expenses reimbursed to the Executive pursuant to this
Agreement which are includible in the Executive’s taxable income shall be made
in accordance with the terms and conditions of such plans and arrangements
governing such reimbursement; provided however, that in no event shall the
reimbursement be made later than the end of the calendar year following the
year
in which the expense is incurred by Executive. Any right to reimbursement of
Executive pursuant to this Agreement cannot be exchanged for the right to cash
or any other benefit and the reimbursements provided to the Executive shall
be
made without regard to such reimbursable expenses incurred by Executive on
a
year to year basis.
9. Governing
Law.
This
Agreement is made and entered into in the State of Alabama, without regard
to
conflict of laws rules, and the laws of Alabama shall govern its validity and
interpretation in the performance by the parties of their respective duties
and
obligations.
10. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties concerning the
employment of Executive and any prior written or unwritten agreements relating
to the subject matter hereof and there are no representations, warranties or
commitments, other than those in writing executed by all of the
parties.
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11. Arbitration.
Except
as otherwise expressly provided herein, any dispute, controversy, or claim
arising out of or relating to this Agreement or breach thereof, or arising
out
of or relating in any way to the employment of Executive or the termination
thereof, shall be submitted to binding arbitration in accordance with the
Voluntary Labor Arbitration Rules of the American Arbitration Association.
Judgment upon the award rendered by the arbitrator may be entered in any court
of competent jurisdiction. In reaching his or her decision, the arbitrator
shall
have no authority to ignore, change, modify, add to or delete from any provision
of this Agreement, but instead is limited to interpreting this
Agreement.
12. Assistance
in Litigation.
Executive shall make himself available, upon the request of Wolverine, to
testify or otherwise assist in litigation, arbitration, or other disputes
involving Wolverine, or any of the directors, officers, executives,
subsidiaries, or parent corporations of either, at no additional cost during
the
Employment Term and at any time following the termination of Executive’s
employment for any reason; provided however, in the event such request is made
by Wolverine after the Employment Term Executive shall be reimbursed for any
reasonable out-of-pocket expenses incurred with respect thereto and shall also
be paid a reasonable daily stipend as mutually agreed upon by the parties
hereto.
13. Notices.
Any
notice or communication required or permitted to be given to the parties shall
be delivered personally or sent by registered or certified mail, postage prepaid
and return receipt requested, and addressed or delivered as follows, or to
such
other address as the party addressed may have substituted by notice pursuant
to
this Section.
|
(a)
|
If
to Wolverine:
|
Wolverine
Tube, Inc.
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx,
Xxxxxxx 00000
Attention:
Corporate Counsel
|
(b)
|
If
to Executive, to his address currently on file with
Wolverine.
|
14. Binding
Agreement.
This
Agreement shall inure to the benefit of and be enforceable by Executive and
his
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devises and legatees. This Agreement shall inure to the
benefit of and be enforceable by Wolverine and any of its successors and
assigns. Wolverine will require any successor (whether direct or indirect,
by
purchase, merger, consolidation or otherwise) to all or substantially all of
the
business and/or assets of Wolverine to assume expressly and agree to satisfy
all
of the obligations under this Agreement in the same manner and to the same
extent that Wolverine would be required to satisfy such obligations if no such
succession had taken place. As used in this Agreement, “Wolverine” shall mean
“Wolverine” as hereinbefore defined and any successor to its respective
businesses and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
10
15. No
Mitigation of Amounts Payable Hereunder.
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by Executive as the result of employment by another employer
after the date of termination, or otherwise. Wolverine’s obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which Wolverine may have against
Executive.
16. Amendment.
This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
16. Construction.
This
Agreement shall not be construed against any party by reason of the drafting
or
preparation hereof.
17. Captions.
The
captions of this Agreement are inserted for convenience and are not part of
the
Agreement.
18. Severability.
In case
any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any other respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement. This Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been a part of the
Agreement and there shall be deemed substituted therefore such other provision
as will most nearly accomplish the intent of the parties to the extent permitted
by the applicable law.
19. Survivorship.
Upon
the expiration or other termination of this Agreement or termination of
Executive’s employment for any reason, the respective rights and obligations of
the parties hereto shall survive such expiration or other termination to the
extent necessary to carry out the intentions of the parties under this
Agreement.
20. Withholding.
Wolverine may withhold from any amounts payable under this Agreement such
Federal, state or local taxes as shall be required to be withheld pursuant
to
any applicable law or regulation.
21. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, but all of which shall together constitute
one in the same Agreement.
(Signature
Page Follows)
11
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
set forth below.
|
WOLVERINE:
|
EXECUTIVE:
|
|
|
By:__________________________
|
By:__________________________
|
|
|
Xxxxxx X. Xxxxxx
|
Xxxxx X. Xxxx
|
|
|
Chairman of the Board of Directors
|
||
|
Date:
_________________________
|
Date:
_________________________
|
12
APPENDIX
A
|
1.
|
Cerro
Copper Products Company, Inc.
|
|
2.
|
Luvata
|
|
3.
|
Industrias
Nacobre S.A. de C.V.
|
|
4.
|
Golden
Dragon
|
|
5.
|
Xxxxxxx
Industries, Inc.
|
|
6.
|
Kobe
Copper Products, Inc.
|
|
7.
|
National
Copper
|
|
8.
|
Xxxxxxx
|
|
9.
|
Hitachi,
Ltd.
|
|
10.
|
Trefimetaux
|
|
11.
|
Reading
Tube Corporation
|
|
12.
|
IUSA
|
|
13.
|
NIBCO
|
|
14.
|
High
Performance Tube
|
|
15.
|
Commercial
Metals Company
|
|
16.
|
Xxxxx
Xxxxxxxx
|
|
00.
|
X.X.
Xxxxxx/Lincoln Electric
|
Reference
to the above companies shall incorporate related companies thereto, including,
but not limited to, all parent companies, subsidiary companies, majority-owned
companies and joint ventures.
00
XXXXXXXX
X
Release
For
and
in consideration of the payments and other benefits described in the employment
agreement dated as of October 1, 2007 (the “Agreement”)
between Wolverine Tube, Inc., a Delaware corporation (the “Company”) and Xxxxx
X. Xxxx (the “Executive”)
and
for other good and valuable consideration, Executive hereby releases the
Company, its divisions, affiliates, subsidiaries, parents, branches,
predecessors, successors, assigns, officers, directors, trustees, employees,
agents, shareholders, administrators, representatives, attorneys, insurers
and
fiduciaries, past, present and future (the “Released
Parties”)
from
any and all claims of any kind arising out of, or related to, his employment
with the Company, its affiliates and subsidiaries (collectively, with the
Company, the “Affiliated
Entities”),
his
separation from employment with the Affiliated Entities or derivative of
Executive’s employment, which Executive now has or may have against the Released
Parties, whether known or unknown to Executive, by reason of facts which have
occurred on or prior to the date that Executive has signed this Release. Such
released claims include, without limitation, any and all claims under federal,
state or local laws pertaining to employment, including, without limitation,
the
Age Discrimination in Employment Act, Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. Section 2000e et.
seq.,
the
Fair Labor Standards Act, as amended, 29 U.S.C. Section 201
et.
seq.,
the
Americans with Disabilities Act, as amended, 42 U.S.C. Section 12101
et.
seq.
the
Reconstruction Era Civil Rights Act, as amended, 42 U.S.C.
Section 1981 et.
seq.,
the
Rehabilitation Act of 1973, as amended, 29 U.S.C. Section 701
et.
seq.,
the
Family and Medical Leave Act of 1992, 29 U.S.C. Section 2601
et.
seq.,
and
any and all state or local laws regarding employment discrimination and/or
federal, state or local laws of any type or description regarding employment,
including but not limited to any claims arising from or derivative of
Executive’s employment with the Affiliated Entities, as well as any and all
claims under state contract or tort law.
Executive
has read this Release carefully, acknowledges that Executive has been given
at
least 21 days to consider all of its terms and has been advised to consult
with any attorney and any other advisors of Executive’s choice prior to
executing this Release, and Executive fully understands that by signing below
Executive is voluntarily giving up any right which Executive may have to xxx
or
bring any other claims against the Released Parties, including any rights and
claims under the Age Discrimination in Employment Act. Executive also
understands that Executive has a period of seven days after signing this Release
within which to revoke his agreement, and that the Company or any other person
is obligated to make any payments to Executive pursuant to Sections 4(b) or
4(c)
of the Agreement until eight days have passed since Executive’s signing of this
Release without Executive’s signature having been revoked (other than the
Accrued Obligations as defined in the Agreement). Finally, Executive has not
been forced or pressured in any manner whatsoever to sign this Release, and
Executive agrees to all of its terms voluntarily.
Notwithstanding
anything else herein to the contrary, this Release shall not affect: the
obligations of Wolverine set forth in the Agreement or other obligations to
pay
vested and earned benefits that, in each case, by their terms, are to be
performed after the date hereof by Wolverine (including, without limitation,
obligations to Executive under any qualified or non-qualified retirement plan
or
other benefit or deferred compensation plan, all of which shall remain in effect
in accordance with their terms); obligations to indemnify Executive respecting
acts or omissions in connection with Executive’s service as an officer or
employee of the Affiliated Entities; or any right Executive may have to obtain
contribution in the event of the entry of judgment against Executive as a result
of any act or failure to act for which both Executive and any of the Affiliated
Entities are jointly responsible.
14
This
Release is final and binding and may not be changed or modified except in a
writing signed by both parties.
|
Date
|
15
