EXHIBIT 10.1
CONSULTANT AGREEMENT
AN AGREEMENT, by and between Wolverine Tube, Inc. ("Company") and Xxxxx
X. Xxxxxx, an individual with an address in Huntsville, Alabama ("Consultant"):
WHEREAS, Company desires Consultant to provide certain consulting
services following his retirement; and
WHEREAS, Consultant is willing to provide such services and the Company
is willing to provide certain benefits to Consultant;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises recited herein, agree as follows:
1. Consultant shall provide such financial and accounting consulting
services as the Chief Executive Officer, the Chief Financial Officer or the
Board of Directors may request during the term of the Agreement, up to 55 hours,
for the consideration outlined in Paragraph 2A below. Thereafter, for the
consideration outlined in Paragraph 2B below and an additional $100.00 for each
hour worked, the Chief Executive Officer, the Chief Financial Officer or the
Board of Directors may request during the term of the Agreement that the
Consultant provide up to an additional 100 hours of services.
2. As full and total compensation for services rendered under this
Agreement:
A. Company shall amend the following option awards held by
Consultant to permit the vesting of: (i) the portion of the
option granted under the Option Agreement dated April 11,
2002 scheduled to vest on April 11, 2005, and (ii) the
portion of the option granted under the Option Agreement dated
May 19, 2004 scheduled to vest on May 19, 2005.
B. Company shall provide retiree medical insurance coverage under
Company's group health plan at the active employee rate.
Company shall not be responsible for deducting from any consideration
paid under this Agreement any taxes, unemployment, social security, or other
expense. Moreover, Consultant, his employees, agents, and independent
contractors shall have no authority, nor shall they represent themselves as
having any authority, to bind Company in any manner whatsoever.
No additional compensation or fee shall be payable by Company to
Consultant by reason of any benefit gained by Company directly or indirectly
through Consultant's efforts in Company's behalf, nor shall Company be liable in
any way for any additional compensation, fee or expenses unless the parties have
expressly agreed thereto in writing.
3. Company shall reimburse Consultant for reasonable travel expenses in
accordance with the expense account policies of Company in a cumulative amount
not to exceed $1000.00. Consultant shall submit application for such
reimbursement in a form acceptable to the Company and shall include all backup
documentation.
4. Consultant is an independent contractor and neither an agent nor
employee of Company. Consultant shall not represent himself as an agent of
Company and may not commit or obligate Company in any way to other parties.
Consultant hereby waives any entitlement to any benefits or privileges provided
by Company to its employees.
5. In view of the services to be performed hereunder, Consultant agrees
that:
(a) Except as an authorized representative of Company may
otherwise consent in writing, Consultant will not disclose to any third
party at any time, either during or subsequent to the term of this
Agreement, any information, knowledge, or data of Company which he may
receive or develop during said term relating to inventions,
discoveries, formulas, processes, methods, machines, compositions,
computer programs, accounting methods, financial information, or
business plans and information systems, or other matters which are of a
proprietary or confidential nature, including any information or data
of others which Company is obligated to maintain in confidence, and
that it will not use such information, knowledge, or data for purposes
beyond the scope of this Agreement except as an authorized officer of
Company may otherwise consent in writing.
(b) All written or otherwise documented information and
information-bearing materials which may be prepared by or furnished to
Consultant under this Agreement shall be and remain the exclusive
property of Company and shall be delivered to Company upon termination
of this Agreement or upon earlier request of Company.
(c) Company shall have the full and unrestricted right to use
and publish any information, knowledge, or data disclosed by Consultant
to Company subject only to such prior rights as may arise under the
patent and copyright statutes, except that Consultant shall not be
entitled to assert against Company any such rights belonging to
Consultant unless it shall have notified Company in writing thereof
prior to the effective date of this Agreement.
6. Consultant hereby represents and warrants that;
(a) With respect to any information, knowledge, or data
disclosed by Consultant to Company in the performance of this
Agreement, Consultant has the full and unrestricted right to disclose
the same.
(b) Consultant is free to undertake the services required by
this Agreement, and that there is no conflict of interest between his
performance of this Agreement and any obligation he may have to other
parties.
7. The services to be provided under this Agreement are to be performed
entirely at Consultant's risk. Consultant shall indemnify Company and hold it
harmless from any liability, cost, or expense, including attorneys' fees,
arising out of, or in connection with, any wrongful or
negligent action or failure to act by Consultant, his employees, agents, or
independent contractors.
8. The Consultant's rights and obligations under this Agreement may not
be assigned without prior written consent of Company.
9. This Agreement shall be effective March 31, 2005. It shall terminate
no later than December 31, 2006 unless it is extended by mutual agreement. This
Agreement may be earlier terminated by Company for the convenience of the
Company, in which case Company shall have no obligation to Consultant for any
services or costs incurred by Consultant after Consultant's receipt of Company's
notice of termination. The obligations of Consultant under paragraphs 5 & 7,
above, shall survive and not be affected by any termination of this services
Contract, or by its expiration.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State of Alabama.
11. This Agreement shall constitute the sole agreement between the
parties hereto with respect to the subject matter hereof and shall supersede any
and all prior agreements or understandings relating to the subject matter
hereof. No change or amendment to this Agreement shall be binding unless in
writing and signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be signed as of the date indicated below.
Xxxxx X. Xxxxxx Wolverine Tube, Inc.
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CONSULTANT COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Signature Signature
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxx
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Printed Printed
Title: Chairman, President and Chief
Executive Officer
Date: February 10, 2005 Date: February 10, 2005
