1
Exhibit 10.2
AGREEMENT
for
SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFITS
This Agreement is made as of the first day of June, 1999, between Wolverine
Tube, Inc. (the "Company") and Xxxxxx Xxxxxxxx (the "Executive").
RECITALS
WHEREAS, Company desires to employ and retain the unique experience, ability,
and services of Executive as Company's President and Chief Executive Officer;
and
WHEREAS, Company desires to provide a nonqualified retirement benefit to
supplement the retirement income benefit provided to Executive under the
Wolverine Tube, Inc. Retirement Plan as Amended and Restated (the "Retirement
Plan"), and the Wolverine Tube, Inc. Supplemental Benefit Restoration Plan (the
"Supplemental Plan"); and
WHEREAS, the terms and conditions of this Agreement have been duly approved and
authorized by the Compensation Committee of the Company's Board of Directors;
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, and of other good and valuable consideration which Company and
Executive have received and accept as sufficient, Company and Executive agree as
follows:
1. AGREEMENT TERM
The term of this Agreement begins on June 1, 1999 and continues until
all payments provided for hereunder have been made by the Company. No
termination of this Agreement shall have the effect of reducing benefits accrued
by Executive prior to the date of such termination.
2. DEFINITIONS:
All capitalized terms in this Agreement shall have the meanings
contained in the Retirement Plan, as it shall be amended from time to time,
except that the following terms shall have the meanings indicated:
2.1 ACTUARIAL EQUIVALENT
"Actuarial Equivalent" means a benefit having the same value as the
benefit which it replaces, computed on the bases of the corresponding actuarial
equivalence assumptions in effect under the Retirement Plan.
2
2.2 ADMINISTRATOR
"Administrator" means the Retirement Committee under the Retirement
Plan, and any successor to the Retirement Committee.
2.3 AFFILIATE
"Affiliate" means--
(a) any corporation while it is a member of the same "controlled
group" of corporations (within the meaning of Code
section 414(b)) as the Company;
(b) any other trade or business (whether or not incorporated)
while it is under "common control" (within the meaning of Code
section 414(c)) with the Company;
(c) any organization during any period in which it (along with the
Company) is a member of an "affiliated service group" (within
the meaning of Code section 414(m)); or
(d) any other entity during any period in which it is required to
be aggregated with the Company under Code section 414(o).
2.4 AGREEMENT
"Agreement" means this Agreement for Supplemental Executive Retirement
Benefits, which is effective June 1, 1999.
2.5 BENEFICIARY
"Beneficiary" means the individual designated by the Executive to
receive any death benefits payable on the Executive's behalf under the
Retirement Plan.
2.6 BENEFIT COMMENCEMENT DATE
"Benefit Commencement Date" means the date on which the Executive's
benefits shall commence under Article IV. The Executive's Benefit Commencement
Date shall be--
(a) the first day of the month coincident with or next following
the later of--
(1) the Executive's Termination of Service; or
(2) the date on which the Executive attains his or her
Earliest Retirement Age; or
2
3
(b) the date selected by the Administrator, in its sole and
absolute discretion, for the commencement of benefit payments
under the Supplemental Plan; provided, however, that this date
shall not precede the Executive's Termination of Service.
2.7 BOARD
"Board" means the Company's Board of Directors.
2.8 CODE
"Code" means the Internal Revenue Code of 1986, as amended from time to
time. A reference to a particular section of the Code shall also be deemed to
refer to the regulations and any other regulatory guidance under that Code
section.
2.9 COMPANY
"Company" means Wolverine Tube, Inc. and any successor thereto that
agrees to adopt and continue this Plan.
2.10 CREDITED SERVICE
"Credited Service" means Credited Service, as defined in the Retirement
Plan, used to calculate the amount of the Executive's benefit under the
Retirement Plan.
2.11 DISABILITY
"Disability" means any physical or mental infirmity, which would result
in the Executive incurring a "disability" under the disability provisions
contained in the Retirement Plan.
2.12 EARLIEST RETIREMENT AGE
"Earliest Retirement Age" means the earliest date on which the
Executive could incur a Termination of Service and elect to commence benefits
immediately under the Retirement Plan.
2.13 ERISA
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. A reference to a particular section of ERISA shall
also be deemed to refer to the regulations and any other regulatory guidance
under that section.
2.14 NORMAL RETIREMENT DATE
"Normal Retirement Date" means the first day of the month coincident
with or next following the Executive's sixty-fifth birthday.
3
4
2.15 PLAN YEAR
"Plan Year" means the calendar year.
2.16 RETIREMENT PLAN
"Retirement Plan" means the Wolverine Tube, Inc. Retirement Plan as
Amended and Restated, effective as of January 1, 1989, and as amended from
time to time.
2.17 SUPPLEMENTAL PLAN
"Supplemental Plan" means the Wolverine Tube, Inc. Supplemental Benefit
Restoration Plan, as Amended and Restated, effective January 1, 1994, and as
amended from time to time.
2.18 TERMINATION OF SERVICE
"Termination of Service" means the Executive's resignation, discharge,
or retirement from the Company other than by death.
3. BENEFIT ELIGIBILITY
Executive becomes entitled to benefits under this Agreement upon a
termination from employment or death subject to the terms and conditions set
forth herein.
4. RETIREMENT BENEFITS
4.1 NORMAL RETIREMENT BENEFITS
(a) ELIGIBILITY. If the Executive, upon a Termination of Service,
is entitled to a normal retirement benefit under the
Retirement Plan, he shall be eligible for a normal retirement
benefit under this section 4.1. Except as otherwise provided
in section 7, this normal retirement benefit shall be
calculated as a single life annuity corresponding to the
standard form of benefit under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for a normal retirement
benefit under subsection (a) shall be entitled to a monthly
benefit under this Agreement equal to the difference between
paragraphs (1) and (2) where--
(1) is the monthly normal retirement benefit to which the
Executive would be entitled under the Retirement Plan
as of his Normal Retirement Date, calculated without
regard to--
(A) the compensation limit in effect under Code
section 401(a)(17) and corollary provisions
in the Retirement Plan; and
4
5
(B) the limits on benefits in effect under Code
section 415 and corollary provisions in the
Retirement Plan;
and
(2) is the monthly normal retirement benefit payable to
the Executive under the Supplemental Plan and the
Retirement Plan as of his Normal Retirement Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
normal retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
(A) for the period beginning on January 1, 1999 and
ending on December 31, 2004, six additional years of
Credited Service if the Executive is still employed
by the Company on December 31, 2004; plus
(B) for each year of Credited Service the Executive
receives under the Retirement Plan after December 31,
2004, the Executive will actually receive two times
the years of Credited Service received in accordance
with the Retirement Plan.
(c) COMMENCEMENT. Payment of benefits under this section 4.1 shall
begin on the Executive's Normal Retirement Date. However, the
Administrator, in its sole and absolute discretion, may direct
that payments shall begin at a later date; in that event, the
benefits under this section shall be adjusted to be the
Actuarial Equivalent of the benefit otherwise commencing at
the Executive Normal Retirement Date.
4.2 EARLY RETIREMENT BENEFIT
(a) ELIGIBILITY. An Executive who incurs a Termination of Service
and is entitled to an early retirement benefit under the
Retirement Plan shall be eligible for an early retirement
benefit under this section 4.2. Except as otherwise provided
in section 7, this early retirement benefit shall be
calculated as a single life annuity corresponding to the
standard form of benefit under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for an early retirement
benefit under subsection (a) shall be entitled to a monthly
benefit under this Agreement equal to the difference between
paragraphs (1) and (2) where--
(1) is the monthly early retirement benefit to which the
Executive would be entitled under the Retirement Plan
as of his Benefit Commencement Date,
5
6
calculated without regard to the limits described
in section 4.1(b)(1)(A) and (B) hereof, and
(2) is the monthly early retirement benefit payable to
the Executive under the Supplemental Plan and the
Retirement Plan if benefits were to commence as of
the Executive's Benefit Commencement Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
(A) for the period beginning on January 1, 1999 and
ending on December 31, 2004, six additional years of
Credited Service if the Executive is still employed
by the Company on December 31, 2004; plus
(B) for each year of Credited Service the Executive
receives under the Retirement Plan after December 31,
2004, the Executive will actually receive two times
the years of Credited Service received in accordance
with the Retirement Plan.
(c) COMMENCEMENT. Payment of benefits under this section 4.2 shall
begin on the Executive's Benefit Commencement Date.
If the Executive's Benefit Commencement Date is delayed by the
Administrator beyond the Executive's Normal Retirement Date,
the benefits under this section shall be adjusted to be the
Actuarial Equivalent of the benefit that would be payable
hereunder if such benefit commenced at the Executive's Normal
Retirement Date.
4.3 LATE RETIREMENT BENEFIT
(a) ELIGIBILITY. If the Executive, upon a Termination of Service,
is entitled to a late retirement benefit under the Retirement
Plan, he shall be eligible for a late retirement benefit under
this section 4.3. Except as otherwise provided in section 7,
this late retirement benefit shall be calculated as a single
life annuity corresponding to the standard form of benefit
under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for a late retirement
benefit under subsection (a) shall be entitled to a monthly
benefit under this Agreement equal to the difference between
paragraphs (1) and (2) where--
(1) is the monthly late retirement benefit to which the
Executive would be entitled under the Retirement Plan
as of his Benefit Commencement Date,
6
7
calculated without regard to the limits described
in section 4.1(b)(1)(A) and (B) hereof, and
(2) is the monthly-deferred retirement benefit payable to
the Executive under the Supplemental Plan and the
late retirement benefit payable to the Executive
under the Retirement Plan if benefits were to
commence as of the Executive's Benefit Commencement
Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
(A) for the period beginning on January 1, 1999 and
ending on December 31, 2004, six additional years of
Credited Service if the Executive is still employed
by the Company on December 31, 2004; plus
(B) for each year of Credited Service the Executive
receives under the Retirement Plan after December 31,
2004, the Executive will actually receive two times
the years of Credited Service received in accordance
with the Retirement Plan.
(c) COMMENCEMENT. Payment of benefits under this section 4.3 shall
begin on the Executive's Benefit Commencement Date.
4.4 DISABILITY RETIREMENT BENEFIT
(a) ELIGIBILITY. If the Executive, upon a Termination of Service,
is entitled to a disability retirement benefit under the
Retirement Plan, he shall be eligible for a disability
retirement benefit under this section 4.4. Except as otherwise
provided in section 7, this disability retirement benefit
shall be calculated as a single life annuity corresponding to
the standard form of benefit under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for a disability retirement
benefit under subsection (a) shall be entitled to a monthly
benefit under this Agreement equal to the difference between
paragraphs (1) and (2) where--
(1) is the monthly disability retirement benefit to which
the Executive would be entitled under the Retirement
Plan as of his Benefit Commencement Date, calculated
without regard to the limits described in section
4.1(b)(1)(A) and (B) hereof, and
7
8
(2) is the monthly disability retirement benefit payable
to the Executive under the Supplemental Plan and the
Retirement Plan if benefits were to commence as of
the Executive's Benefit Commencement Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
(A) for the period beginning on January 1, 1999 and
ending on December 31, 2004, six additional years of
Credited Service if the Executive is still employed
by the Company on December 31, 2004; plus
(B) for each year of Credited Service the Executive
receives under the Retirement Plan after December 31,
2004, the Executive will actually receive two times
the years of Credited Service received in accordance
with the Retirement Plan.
(c) COMMENCEMENT AND DURATION. Payment of benefits under this
section 4.4 shall begin on the Executive's Benefit
Commencement Date.
The Executive who is receiving a benefit under this section
shall not be entitled to any other benefit under this Article
or Article 5. Benefits under this section shall be subject to
rules comparable to the disability retirement benefit rules in
the Retirement Plan concerning duration, entitlement to and
amounts of other retirement benefits, medical examinations,
and other restrictions.
4.5 VESTED BENEFITS ON OTHER TERMINATIONS OF EMPLOYMENT
(a) ELIGIBILITY. If the Executive, upon a Termination of Service
(other than normal, early, deferred, or disability retirement
described in sections 4.1 through 4.4), is entitled to a
vested benefit under the Retirement Plan, he shall be eligible
for a benefit under this section 4.5. Except as otherwise
provided in section 7, this benefit shall be calculated as a
single life annuity corresponding to the standard form of
benefit under the Retirement Plan.
(b) AMOUNT. The Executive, if eligible for a benefit under
subsection (a) shall be entitled to a monthly benefit under
this Agreement equal to the difference between paragraphs (1)
and (2) where--
(1) is the monthly benefit to which the Executive would
be entitled under the Retirement Plan as of his
Benefit Commencement Date, calculated without regard
to the limits described in section 4.1(b)(1)(A) and
(B) hereof, and
8
9
(2) is the monthly benefit payable to the Executive under
the Supplemental Plan and the Retirement Plan if
benefits were to commence as of the Executive's
Benefit Commencement Date.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
(A) for the period beginning on January 1, 1999 and
ending on December 31, 2004, six additional years of
Credited Service if the Executive is still employed
by the Company on December 31, 2004; plus
(B) for each year of Credited Service the Executive
receives under the Retirement Plan after December 31,
2004, the Executive will actually receive two times
the years of Credited Service received in accordance
with the Retirement Plan.
(c) COMMENCEMENT. Payment of benefits under this section 4.5 shall
begin on this Executive's Benefit Commencement Date. If the
Executive's Benefit Commencement Date is accelerated by the
Administrator before the Retirement Plan's "Early Retirement
Date," the benefits under this section shall be adjusted to
be the Actuarial Equivalent of the benefits that would be
payable hereunder if such benefit commenced at the
Executive's Early Retirement Date. If the Executive's
Benefit Commencement Date is delayed by the Administrator
beyond the Executive's Normal Retirement Date, the benefits
under this section shall be adjusted to be the Actuarial
Equivalent of the benefits that would be payable hereunder
if such benefits commenced at the Executive's Normal
Retirement Date.
4.7 REEMPLOYMENT
If the Executive, after Termination of Service, is subsequently
reemployed, the Executive and his benefits hereunder shall become subject to
rules comparable to the rules in the Retirement Plan regarding suspension of
benefits, recalculation of benefits, and similar items.
5. CHANGE IN CONTROL AND TERMINATION WITHOUT CAUSE BENEFITS
For purposes of this Agreement, a "Change in Control" shall have the
meaning contained in section 1(b)(v) of that certain Amended and Restated Change
in Control, Severance and Non-Competition Agreement entered into by the Company
and Executive as of April 20, 1999, a copy of which definition is attached
hereto as Exhibit A. For purposes of this Agreement, "Termination Without Cause"
shall mean any instance not covered under the definition of "Termination For
Cause" as contained in section 1(a)(ii) of that certain Amended and Restated
Change in Control, Severance and Non-Competition Agreement entered into by the
Company and
9
10
Executive as of April 20, 1999, a copy of which definition is attached hereto as
Exhibit B. In the event that the Company experiences a Change in Control prior
to August 15, 2004 or should the Executive be Terminated Without Cause prior to
August 15, 2004 (which is the date on which Executive attains the age of
fifty-eight (58) years), Executive will be deemed to have attained said age as
of the date of said Change in Control or Termination Without Cause, and all
benefits calculated pursuant to sections 4.1 through 4.6 above under the terms
of the Retirement Plan shall be calculated as if Executive had attained age
fifty-eight (58) on said date and had become fully vested in the benefits
provided hereunder (whether or not he is then vested under the Retirement Plan
or the Supplemental Plan), and Executive shall be entitled to make any elections
pursuant to this Agreement as if he had attained said age.
6. DEATH BENEFIT
6.1 ELIGIBILITY.
If the Executive has accrued vested rights under the Retirement Plan
and dies before the date on which his benefits under section 4 hereof are to
commence, and his spouse or children under the age of 21 are entitled to death
benefits under the Retirement Plan, such spouse or children shall be eligible
for death benefits under this section.
6.2 AMOUNT.
A spouse or child of the Executive who is eligible for a death benefit
under section 6.1 shall be entitled to a benefit under this Agreement equal to
the difference between subsections (1) and (2) where--
(1) is the death benefit to which the spouse or child would be
entitled under the Retirement Plan as of the earliest date on
which such benefit would be payable, calculated without regard
to the limits described in section 4.1(b)(1)(A) and (B)
hereof, and
(2) is the death benefit payable to the spouse or child under the
Supplemental Plan and the Retirement Plan if such benefits
were to commence as of such earliest date of payment.
For purposes of calculating (1) above, and notwithstanding
anything else contained in the Retirement Plan, the monthly
retirement benefit under the Retirement Plan shall be
calculated by giving the Executive the following additional
Credited Service:
(A) for the period beginning on January 1, 1999 and
ending on December 31, 2004, six additional years of
Credited Service if the Executive is still employed
by the Company on December 31, 2004; plus
10
11
(B) for each year of Credited Service the Executive
receives under the Retirement Plan after December 31,
2004, the Executive will actually receive two times
the years of Credited Service received in accordance
with the Retirement Plan.
6.3 FORM, TIMING, AND DURATION
Payment of benefits under this section shall begin at the earliest
possible date such benefits would be payable to the spouse or child, as
applicable, under the Retirement Plan. Payments shall continue for the duration
described in the Retirement Plan. Payment shall be in the standard form for such
benefits described in the Retirement Plan.
Notwithstanding the foregoing, the Administrator may, in its sole and
absolute discretion, direct that payment be made in a form or at a time other
than that described above. In that event, the benefits payable shall be the
Actuarial Equivalent of the benefits described in the first paragraph of this
section.
7. FORM OF PAYMENT
7.1 UNMARRIED PARTICIPANT.
The form of payment for the Executive if he is not married on his
Benefit Commencement Date shall be a single life annuity.
7.2 MARRIED PARTICIPANT.
The form of payment for the Executive if he is married on his Benefit
Commencement Date shall be a statutory joint and survivor spouse annuity. A
statutory joint and survivor spouse annuity provides--
(a) a monthly benefit to the Executive for life; and
(b) upon the Executive's death, a monthly benefit to the
Executive's surviving spouse for life equal to 50 percent of
the monthly amount payable during the Executive's lifetime.
This statutory joint and survivor annuity shall be the Actuarial
Equivalent of the single life annuity in subsection (a).
7.3 OPTIONAL PAYMENT FORMS.
The Administrator may, in its sole and absolute discretion, direct that
payment be made in a form other than that described in subsection (a) or (b). In
that event, the benefit payable under the optional payment form shall be the
Actuarial Equivalent of the single life annuity described in subsection (a).
11
12
8. FUNDING
8.1 STATUS AS UNFUNDED PLAN
The Agreement is intended to constitute an unfunded plan maintained for
a "select group of management or highly compensated employees" within the
meaning of Section 201(2) of the Employee Retirement Income Security Act of
1974. The benefits under this Agreement shall be paid from the general assets of
the Company, or from a trust fund the assets of which remain available to the
general creditors of the Company in the event of its insolvency. The benefits
shall not be funded in advance in any way except, in the Company's discretion,
through such a trust.
8.2 EVENT UPON WHICH TRUST WILL BE FUNDED
Nothing contained in this Agreement, and no action taken pursuant to
the provisions of this Agreement, shall create a trust or fiduciary relationship
between the Company and the Executive, Executive's spouse, or Beneficiary.
Notwithstanding the foregoing, the Company may establish and fund a trust for
said purpose, in which event the assets of the trust shall nonetheless be
available to the general creditors of the Company in the event of its
insolvency. In the event that the Company experiences a Change in Control, as
described in Section 5 above, it will immediately deposit into such a trust an
amount of money, calculated by actuaries acceptable to the Executive, which will
be sufficient with any other assets then held in said trust for said purpose to
fund the obligation of the Company under this Agreement. Any such trust will be
designed to avoid creating a funded promise hereunder for purposes of applicable
Internal Revenue Service and Department of Labor regulations relating to
constructive receipt of income and applicability of funding requirements of the
Employee Retirement Income Security Act of 1974, as amended.
8.3 UNSECURED INTEREST
Neither the Executive nor any Beneficiary shall have any interest
whatsoever in any specific asset of the Company or an Affiliate. To the extent
that any person acquires a right to receive payments under this Agreement, such
right shall be no greater than the right of any unsecured general creditor of
the Company.
9. MISCELLANEOUS PROVISIONS
9.1 ADMINISTRATION
The Agreement shall be administered by the Administrator.
The Administrator shall have all powers necessary or appropriate to
carry out the provisions of the Agreement. It may, from time to time, establish
rules for the administration of the Agreement and the transaction of the
Agreement's business.
12
13
The Administrator shall have the exclusive right to make any finding of
fact necessary or appropriate for any purpose under the Agreement including, but
not limited to, the determination of eligibility for and amount of any benefit.
The Administrator shall have the exclusive right to interpret the terms
and provisions of the Agreement and to determine any and all questions arising
under the Agreement or in connection with its administration, including, without
limitation, the right to remedy or resolve possible ambiguities,
inconsistencies, or omissions by general rule or particular decision, all in its
sole and absolute discretion.
All findings of fact, determinations, interpretations, and decisions of
the Administrator shall be conclusive and binding upon all persons having or
claiming to have any interest or right under the Agreement and shall be given
the maximum deference allowed by law.
9.2 APPEALS FROM DENIAL OF CLAIMS
If any claim for benefits under the Agreement is wholly or partially
denied, the claimant shall be given notice of the denial. This notice shall be
in writing, within a reasonable period of time after receipt of the claim by the
Administrator. This period shall not exceed 90 days after receipt of the claim,
except that if special circumstances require an extension of time, written
notice of the extension shall be furnished to the claimant, and an additional 90
days will be considered reasonable.
This notice shall be written in a manner calculated to be understood by
the claimant and shall set forth the following information:
(a) the specific reasons for the denial;
(b) specific reference to the Agreement provisions on which the
denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why this material or information is necessary;
(d) an explanation that a full and fair review by the
Administrator of the decision denying the claim may be
requested by the claimant or an authorized representative by
filing with the Administrator, within 60 days after the notice
has been received, a written request for the review; and
(e) if this request is so filed, an explanation that the claimant
or an authorized representative may review pertinent documents
and submit issues and comments in writing within the same
60-day period specified in subsection (d).
13
14
The decision of the Administrator upon review shall be made promptly,
and not later than 60 days after the Administrator's receipt of the request for
review, unless special circumstances require an extension of time for
processing. In this case the claimant shall be so notified, and a decision shall
be rendered as soon as possible, but not later than 120 days after receipt of
the request for review. If the claim is denied, wholly or in part, the claimant
shall be given a copy of the decision promptly. The decision shall be in
writing, shall include specific reasons for the denial, shall include specific
references to the pertinent Agreement provisions on which the denial is based,
and shall be written in a manner calculated to be understood by the claimant.
9.3 EXPENSES
All expenses incurred in the administration of the Agreement shall be
paid by the Company.
9.4 AMENDMENT AND TERMINATION
The Company and the Executive hereby reserve the right to amend,
modify, or terminate the Agreement at any time, and for any reason, by action of
the Board of Directors of the Company and by the Executive, in writing. However,
no amendment or termination shall have the effect of reducing the benefits
accrued by the Executive prior to the date of the amendment or termination.
9.5 NO CONTRACT OF EMPLOYMENT
Nothing contained in this Agreement shall be construed to give the
Executive the right to be retained in the service of the Company or its
Affiliates or to interfere with the right of the Company or its Affiliates to
discharge the Executive at any time.
9.6 WAIVER.
The failure of either party to insist in any one or more instances upon
performance of any terms or conditions of this Agreement shall not be construed
as a waiver of future performance of any such term, covenant, or conditions. The
obligations of both Company and Executive shall continue in full force and
effect.
9.7 SEVERABILITY.
If any provision of this Agreement shall be held illegal or invalid,
the illegality or invalidity shall not affect its remaining parts. The Agreement
shall be construed and enforced as if it did not contain the illegal or invalid
provision.
9.8 ASSIGNMENT.
Executive may not assign or otherwise alienate the benefits payable
under this Agreement.
14
15
9.9 TAX WITHHOLDING.
Company may withhold from any payment under this Agreement any federal,
state, or local taxes required by law to be withheld with respect to the payment
and any sum Company may reasonably estimate as necessary to cover any taxes for
which it may be liable and that may be assessed with regard to the payment.
9.10 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Alabama.
9.11 ENTIRE AGREEMENT.
This Agreement supersedes all previous agreements between Executive and
Company, and contains the entire understanding and agreement between the
parties, with respect to the subject matter hereof, and supplements the
Retirement Plan and Supplemental Plan. This Agreement may not be amended,
modified, supplemented, or terminated except by a subsequent written instrument
signed by both parties.
* * * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this instrument, effective
as of June 1, 1999.
WOLVERINE TUBE, INC.
By /s/ Jan K. Ver Xxxxx
------------------------------------
Jan K. Ver Xxxxx, Chairman of the
Board
EXECUTIVE
By /s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
15
16
EXHIBIT A
(v) For purposes of this Agreement, "Change in Control" shall mean:
(A) The Company is merged, consolidated or reorganized into or with another
corporation or other legal person, and as a result of such merger, consolidation
or reorganization less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person immediately after such
transaction are held in the aggregate by the holders of Voting Stock (as that
term is hereafter defined) of the Company immediately prior to such transaction;
(B) The Company sells or otherwise transfers all or substantially all of
its assets to another corporation or other legal person, and as a result of such
sale or transfer less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person immediately after such
sale or transfer is held in the aggregate by the holders of Voting Stock of the
Company immediately prior to such sale or transfer;
(C) There is a report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing
that (x) any person (as the term "person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of securities representing 15% or
more of the combined voting power of the then-outstanding securities entitled to
vote generally in the election of directors of the Company ("Voting Stock"), or
(y) any person has, during any period, increased the number of shares of Voting
Stock beneficially owned by such person by an amount equal to or greater than
15% of the outstanding shares of Voting Stock; provided, however, that transfers
of shares of Voting Stock between a person and the affiliates or associates (as
such terms are defined under Rule 12b-2 or any successor rule or regulation
promulgated under the Exchange Act) of such person shall not be considered in
determining any increase in the number of shares of Voting Stock beneficially
owned by such person;
(D) The Company files a report or proxy statement with the Securities and
Exchange Commission pursuant to the Exchange Act disclosing in response to Form
8-K or Schedule 14A (or any successor schedule, form or report or item therein)
that a change in control of the Company has occurred or will occur in the future
pursuant to any then-existing contract or transaction; or
(E) If, during any period of two consecutive years, individuals who at the
beginning of any such period constitute the Directors of the Company cease for
any reason to constitute at least a majority thereof; provided, however, that
for purposes of this clause (v) each Director who is first elected, or first
nominated for election by the Company's stockholders, by a vote of at least
two-thirds of the Directors of the Company (or a conalonce thereof) than 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 (C) or (D) unless
otherwise determined in a specific case by majority vote of the Board, a "Change
in Control" shall not be deemed to have occurred for purposes of Sections (C) or
(D) solely because (1) the Company, (2) an entity in which the Company directly
or indirectly beneficially owns 50% or more of the voting securities (a
"Subsidiary"), or (3) any employee stock ownership plan or any other employee
benefit plan of the Company or any Subsidiary either files or becomes obligated
to file a report or a proxy statement under or in response to Schedule 13D,
Schedule 14D-1, Form 8-K, or Schedule 14A (or any successor schedule, form or
report or item therein) under the Exchange Act disclosing beneficial ownership
by it of shares of Voting Stock, whether in excess of 15% or otherwise, or
because the Company reports that a change in control of the Company has occurred
or will occur in the future by reason of such beneficial ownership.
17
EXHIBIT B
(ii) For purposes of this Agreement, termination for "Cause" shall mean
termination of the Executive's employment by the Company because of (A) the
Executive's conviction for, or guilty plea to, a felony or a crime involving
moral turpitude, (B) the Executive's commission of an act of personal dishonesty
in connection with his employment by the Company, (C) a breach of fiduciary duty
in connection with his employment with the Company which shall include, but not
be limited to, (1) investment in any person or organization with the knowledge
that such person or organization has or proposes to have dealings with the
Company, such person or organization competes with the Company, or the Company
is considering an investment in such person or organization (the reference to
"organization" excludes federal credit unions, publicly owned insurance
companies and corporations the stock of which is listed on a national securities
exchange or quoted on NASDAQ if the direct and beneficial stock ownership of the
Executive, including members of his immediate family, is not more than one
percent (1%) of the total outstanding stock of such corporation); (2) a loan
(including a guaranty of a loan) from or to any person or organization having or
proposing any dealings with the Company or in competition with the Company; (3)
participation directly or indirectly in any transaction involving the Company
other than as a director or as an officer or employee of the Company; (4)
acceptance from any person or organization having or proposing any dealings with
the Company or in competition with the Company of any gratuity, gift,
entertainment or favor which exceeds either nominal value or common courtesies
which are generally accepted business practice; or (5) service as an officer,
director, partner or employee of, or consultant to, any person or organization
having or proposing dealings with the Company or in competition with the
Company; (D) the Executive's failure to execute or follow the written policies
of the Company, including, but not limited to, the Company's policy against
discrimination or harassment, or (E) the Executive's refusal to perform the
essential functions of the job, following written notice thereof. Termination of
the Executive's employment as a result of his death or disability (if such
Executive is eligible for benefits under the Company's long-term disability plan
or would be eligible for such benefits were the Executive a participant in said
plan) shall constitute a termination by the Company with Cause for purposes of
this Agreement.
