EXHIBIT 10.2
WOLVERINE TUBE, INC.
DIRECTOR INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of this ____ day of _______, 2005 between
Wolverine Tube, Inc., a Delaware corporation (the "Corporation"), and
___________ ("Director").
WITNESSETH THAT:
WHEREAS, Director is, or will be elected as, a member of the Board of
Directors of the Corporation and in such capacity is performing, or will
perform, a valuable service for the Corporation; and
WHEREAS, Section 145 of the Delaware General Corporation Law (the
"State Statute") specifically provides that it is not exclusive, and thereby
contemplates that contracts may be entered into between the Corporation and the
members of its Board of Directors with respect to indemnification of such
directors; and
WHEREAS, in accordance with the authorization provided by the State
Statute, the Corporation has purchased and presently maintains a policy or
policies of directors and officers liability insurance ("D&O Insurance"),
covering certain liabilities which may be incurred by its directors and officers
in the performance of their services for the Corporation; and
WHEREAS, to supplement the D&O Insurance and induce Director to serve
or to continue to serve as a member of the Board of Directors of the
Corporation, the Corporation has determined and agreed to enter into this
contract with Director; and
WHEREAS, the statutes and judicial decisions regarding the duties of
directors and officers are often difficult to apply, ambiguous, or conflicting,
and therefore fail to provide such directors and officers with adequate,
reliable knowledge of legal risks to which they are exposed or information
regarding the proper course of action to take; and
WHEREAS, the Corporation (i) desires to attract and retain the
involvement of highly qualified individuals, such as Director, to serve the
Corporation and, in part, in order to induce Director to be involved with the
Corporation and (ii) wishes to provide for the indemnification and advancing of
expenses to Director to the maximum extent permitted by law; and
WHEREAS, Article EIGHT of the Corporation's Restated Certificate of
Incorporation, as amended, states that directors will not be personally liable
to the Corporation or its stockholders for acts or omissions in the performance
of their duties and Article NINTH states that the directors and officers will be
indemnified for service to the fullest extent provided by the State Statute and
states that the Corporation may enter into agreements with the directors and
officers to provide for indemnification and advancement of expenses greater or
different than that provided in the State Statute;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. INDEMNITY OF DIRECTOR. In addition to the indemnity provided in
Section 3 hereof, the Corporation shall hold harmless and indemnify Director to
the fullest extent authorized or permitted by the provisions of the
Corporation's Restated Certificate of Incorporation, as amended, its Bylaws,
including Bylaw 33 in effect as of the date of this Agreement, and the
provisions of the State Statute, or by any amendment of the State Statute or
other statutory provisions authorizing or permitting such indemnification which
is adopted after the date hereof (but, in case of any such amendment, only to
the extent such amendment permits the Corporation to provide broader
indemnification rights and protection than the State Statute provides as of the
date of this Agreement), provided that no such indemnification is required to
the extent that D&O Insurance is available to provide in full the
indemnification to which the Director would otherwise be entitled pursuant to
this Section 1.
2. MAINTENANCE OF INSURANCE AND SELF-INSURANCE.
(a) The Corporation represents that it presently has in force and
effect a policy of D&O Insurance with an insurance company. Subject only to the
provisions of Section 2(b) hereof, the Corporation hereby agrees that, so long
as Director shall continue to serve as a director of the Corporation and
thereafter so long as Director shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Director was a director of
the Corporation, the Corporation will purchase and maintain in effect for the
benefit of Director one or more valid, binding and enforceable policy or
policies of D&O Insurance.
(b) The Corporation shall not be required to maintain said policy or
policies of D&O Insurance in effect if said insurance is not reasonably
available or if, in the reasonable business judgment of the directors of the
Corporation then in office, either (i) the premium cost for such insurance is
substantially disproportionate to the amount of coverage or (ii) the coverage
provided by such insurance is so limited by exclusions or otherwise that there
is insufficient benefit from such insurance.
3. ADDITIONAL INDEMNITY.
(a) Third-Party Proceedings. In addition to any indemnity provided by
Section 1, the Corporation shall indemnify Director, except as otherwise
provided in Section 4 of this Agreement, if Director is or was a party or is
threatened to be made a party to any threatened, pending or completed suit
action, proceeding, arbitration or alternative dispute resolution mechanism,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that Director is or
was a director, officer, employee or agent of the Corporation or any subsidiary
of the Corporation, by reason of any action or inaction on the part of Director
while an officer or director of the Corporation or any subsidiary of the
Corporation or by reason of the fact that Director is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Corporation, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Director in connection with such
action or proceeding if Director acted in good faith and in a manner Director
reasonably believed to be in or not opposed to the best interests of the
Corporation and
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its stockholders, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
(b) Proceedings By or in the Right of the Corporation. In addition to
any indemnity provided by Section 1, the Corporation shall indemnify Director,
except as otherwise provided in Section 4 of this Agreement, if Director is or
was a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by or in the right of the Corporation or
any subsidiary of the Corporation to procure a judgment in its favor by reason
of the fact that Director is or was a director, officer, employee or agent of
the Corporation or any subsidiary of the Corporation, by reason of any action or
inaction on the part of Director while an officer or director of the Corporation
or any subsidiary of the Corporation or by reason of the fact that Director is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses and, to the fullest extent permitted by
Delaware law, amounts paid in settlement (if such settlement is approved by the
Corporation, which approval shall not be unreasonably withheld), in each case to
the extent actually and reasonably incurred by Director in connection with the
defense or settlement of such action or proceeding if Director acted in good
faith and in a manner Director reasonably believed to be in or not opposed to
the best interests of the Corporation and its stockholders, except that no
indemnification shall be made under this Section 3 (b) in respect of any claim,
issue or matter as to which Director shall have been adjudged to be liable to
the Corporation and its stockholders in the performance of Director's duty to
the Corporation and its stockholders unless and only to the extent that the
court in which such action or proceeding is or was pending shall determine that
in view of all the circumstances of the case, Director is fairly and reasonably
entitled to indemnity for expenses, and then only to the extent that the court
shall determine.
(c) For purposes of this Agreement, "expenses" means all costs, charges
and expenses incurred in connection with any threatened, pending or completed
proceeding, action or suit, whether civil or criminal, administrative or
investigative (including an action by or in the right of or upon election by the
Corporation), including, without limitation, attorneys' fees, disbursements and
retainers, accounting and witness fees, travel and deposition costs, expense of
investigation, judicial or administrative proceedings or appeals, and any
expenses of establishing a right to indemnification pursuant to the Agreement or
otherwise, including reasonable compensation for time spent by the Director in
connection with the investigation, defense or appeal of any proceeding or action
for indemnification for which he is not otherwise compensated by the Corporation
or any third party; provided, however, that the term "expenses" includes only
those costs, charges and expenses incurred with the Corporation's consent, which
consent shall not be unreasonably withheld.
(d) All reasonable expenses incurred by or on behalf of Director shall
be advanced by the Corporation to Director within 20 days after the receipt by
the Corporation of a written request for an advance or advances of expenses from
time to time, whether prior to or after final disposition of a proceeding
(unless there has been a final determination that Director is not entitled to be
indemnified for such expenses), including, without limitation, any proceeding
brought by or in the right of the Corporation. Director's entitlement to
advancement of expenses shall include those incurred in connection with any
proceeding by Director seeking an adjudication or award in arbitration pursuant
to this Agreement. The requests shall reasonably
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evidence the expenses incurred by Director in connection therewith. Director
hereby undertakes to repay the amount advanced if it shall ultimately be
determined that Director is not entitled to be indemnified pursuant to the terms
of this Agreement.
(e) Notwithstanding any other provision of this Agreement, to the
extent that Director is, by reason of his status as a director or officer of the
Corporation, a witness in any proceeding to which Director is not a party,
Director shall be indemnified against all expenses actually and reasonably
incurred by Director or on Director's behalf in connection therewith.
4. EXCLUSIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to this
Agreement shall be paid by the Corporation:
(a) Except to the extent the aggregate of losses to be indemnified
thereunder exceeds the amount of such losses for which Director is indemnified
either pursuant to Section 1 hereof or pursuant to any D&O Insurance purchased
and maintained by the Corporation;
(b) On account of Director's conduct which is finally adjudged as
resulting in an unlawful personal benefit;
(c) On account of any suit in which judgment is rendered against
Director for an accounting of profits made or otherwise in connection with the
purchase or sale by Director of securities of the Corporation pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law;
(d) On account of Director's conduct which is finally adjudged as
constituting deliberate dishonesty or willful fraud;
(e) On account of any action initiated or brought voluntarily by the
Director and not by way of defense, except with respect to actions brought
pursuant to Section 11(b) hereof;
(f) On account of any judgment based on a violation of Section 174 of
the State Statute; or
(g) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
5. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Director is a
director, officer, employee or agent of the Corporation (or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise) and
shall continue thereafter so long as Director shall be subject to any possible
claim or threatened, pending or completed action, suit or proceeding, whether
civil, criminal or investigative, by reason of the fact that Director was a
director of the Corporation or serving in any other capacity referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
Director of notice of the commencement of any action, suit or proceeding,
Director will, if a claim in respect
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thereof is to be made against the Corporation under this Agreement, notify the
Corporation of the commencement thereof; but the omission so to notify the
Corporation will not relieve the Corporation from any liability which it may
have to Director otherwise than under this Agreement. With respect to any such
action, suit or proceeding as to which Director notifies the Corporation of the
commencement thereof:
(a) The Corporation will be entitled to participate therein at its own
expense;
(b) Except as otherwise provided below, to the extent that it may wish,
the Corporation jointly with any other indemnifying party similarly notified
will be entitled to assume the defense thereof, with counsel satisfactory to the
Corporation. After written notice from the Corporation to Director of its
election so to assume the defense thereof, the Corporation will not be liable to
Director under this Agreement for any legal or other expenses subsequently
incurred by Director in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Director shall
have the right to employ his counsel in such action, suit or proceeding but the
fees and expenses of such counsel incurred after notice from the Corporation of
its assumption of the defense thereof shall be at the expense of Director unless
(i) the employment of counsel by Director has been authorized in writing by the
Corporation, (ii) Director shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Director in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the
expenses of counsel shall be at the expense of the Corporation. The Corporation
shall not be entitled to assume the defense of any action, suit or proceeding
brought by or on behalf of the Corporation or as to which Director shall have
made the conclusion provided for in clause (ii) above; and
(c) The Corporation shall not be liable to indemnify Director under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Corporation shall not settle any
action or claim in any manner which would impose any penalty or limitation on
Director without Director's written consent. Neither the Corporation nor
Director will unreasonably withhold its consent to any proposed settlement.
7. PARTIAL INDEMNIFICATION. If the Director is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the expenses, damages, judgments, amounts paid in settlement, fines,
penalties or ERISA excise taxes actually and reasonably incurred by Director in
the investigation, defense, appeal or settlement of any action, suit or
proceeding but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Director for the portion of such expenses, damages,
judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes to
which the Director is entitled.
8. BURDEN OF PROOF; STANDARDS OF CONDUCT.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that Director is entitled to indemnification under
this Agreement if Director has submitted a request for indemnification in
accordance with Section 6 of this Agreement, and the Corporation shall bear
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the burden of proof by clear and convincing evidence to rebut that presumption
in connection with the making by any person, persons or entity of any
determination contrary to that presumption.
(b) The termination of any action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative hearing or other
proceeding whether civil, criminal, administrative or investigative or of any
claim, issue or matter therein by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not (except as otherwise
expressly provided in this Agreement) of itself adversely affect the right of
Director to indemnification or create a presumption (i) that Director did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation or, with respect to any
criminal action or proceeding, that Director had reasonable cause to believe
that his conduct was unlawful; or (ii) that Director received an unlawful
personal benefit or acted with deliberate dishonesty or willful fraud.
(c) Director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interests of the participants in and
beneficiaries of the plan shall be deemed to be conduct that Director reasonably
believed to be in or not opposed to the best interests of the Corporation.
(d) For purposes of any determination hereunder, Director shall be
deemed to have acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation, or, with respect to
any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action was based on (i) the records or books of
account of the Corporation or another enterprise, including financial
statements, (ii) information supplied to him by the officers of the Corporation
or another enterprise in the course of their duties, (iii) the advice of legal
counsel for the Corporation or another enterprise, or (iv) information or
records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The term
"another enterprise" as used in this Section 8 shall mean any other corporation
or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which Director is or was serving at the request of the Corporation
as an officer, director, partner, trustee, employee or agent. The provisions of
this Section 8 (d) shall not be deemed to limit in any way the other
circumstances in which Director may be deemed to have met any standard of
conduct which may be applicable to Director.
(e) If the Corporation claims that the Director is not entitled to
indemnification under this Agreement, the Director shall be entitled to select
the forum in which the validity of the Corporation's claim that the Director is
not entitled to indemnification will be heard from among the following:
(1) A majority vote of the board of directors consisting of
directors who are not parties to the proceeding for which indemnification is
being sought even though less than a quorum;
(2) The stockholders of the Corporation;
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(3) Independent Counsel selected by the Director, and approved
by the board of directors which approval shall not be unreasonably withheld,
which counsel shall make such determination in a written opinion. "Independent
Counsel" means a law firm or member of a law firm that neither at the time in
question nor in the five years immediately preceding such time has been retained
to represent (i) the Corporation or Director in any matter material to either
such party or (ii) any other party to the proceeding giving rise to a claim for
indemnification under this Agreement. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the applicable
standards of professional conduct then prevailing under the law of the state of
Delaware, would be precluded from representing either the Corporation or
Director in an action to determine Director's rights under this Agreement;
(4) A panel of three arbitrators, one of whom is selected by
the Corporation, another of whom is selected by the Director and the last of
whom is selected by the first two arbitrators so selected; or
(5) The court in which any proceeding is pending for which the
Director claims indemnification.
(f) As soon as practicable, and in no event later than 30 days after
written notice of the Director's choice of forum pursuant to Section 8(e) above,
the Corporation shall, at its own expense, including the cost of Independent
Counsel, if any, submit to the selected forum in such manner as the Director or
the Director's counsel may reasonably request, its claim that the Director is
not entitled to indemnification; and the Corporation shall act in the utmost
good faith to assure the Director a complete opportunity to defend against such
claim.
(g) Notwithstanding a determination by any forum listed in Section 8(e)
hereof that Director is not entitled to indemnification with respect to a
specific proceeding, the Director shall have the right to apply to the Court of
Chancery of Delaware, the court in which the proceeding as to which
indemnification is claimed is or was pending or any other court of competent
jurisdiction, for the purpose of enforcing the Director's right to
indemnification pursuant to this Agreement.
(h) Notwithstanding any other provision in this Agreement to the
contrary, the Corporation shall indemnify the Director against all expenses
incurred by the Director in connection with any hearing or proceeding under this
Section 8 involving the Director and against all expenses incurred by Director
in connection with any other proceeding between the Corporation and the Director
involving the interpretation or enforcement of the rights of the Director under
this Agreement unless a court of competent jurisdiction finds that each of the
claims and/or defenses of the Director in any such proceeding were frivolous or
made in bad faith.
9. SUCCESS ON MERITS OR OTHERWISE. Notwithstanding any other provision
of this Agreement, to the extent that Director has been successful on the merits
or otherwise in defense of any action, suit or proceeding, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection with the investigation,
defense, settlement or appeal thereof. For purposes of this Section 9, the term
"successful on the merits or otherwise" shall include, but not be limited to,
(i) any termination,
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withdrawal or dismissal (with or without prejudice) of any claim, action, suit
or proceeding against Director without any express finding of liability or guilt
against him, (ii) the expiration of 180 days after the making of any claim or
threat of an action, suit or proceeding without the institution of the same and
without any promise of payment or payment made to induce a settlement or (iii)
the settlement of any action, suit or proceeding pursuant to which Director pays
less than $100,000.
10. CONTRIBUTION. If the indemnification provided in Section 1 or 3 is
unavailable and may not be paid to Director for any reason other than those set
forth in Section 4, then in respect to any proceeding in which the Corporation
is jointly liable with Director (or would be if joined in such proceeding), the
Corporation shall contribute to the amount of expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred and paid or payable
by Director in such proportion as is appropriate to reflect (i) the relative
benefits received by the Corporation on the one hand and by the Director on the
other hand from the transaction from which such proceeding arose, and (ii) the
relative fault of the Corporation on the one hand and of the Director on the
other hand in connection with the events which resulted in such expenses,
judgments, fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Corporation on the one hand and of the
Director on the other hand shall be determined by reference to, among other
things, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such expenses,
judgments, fines or settlement amounts. The Corporation agrees that it would not
be just and equitable if contribution pursuant to this Section 10 were
determined by pro rata allocation or any other method of allocation which does
not take account of the foregoing equitable considerations.
11. ENFORCEMENT.
(a) The Corporation expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on the Corporation
hereby in order to induce Director to become or to continue as a director of the
Corporation, and acknowledges that Director is relying upon this Agreement.
(b) If a claim under this Agreement is not paid or provided for by or
on behalf of the Corporation within 30 days of receipt of written notice
thereof, Director may at any time thereafter bring suit in any court of
competent jurisdiction against the Corporation to enforce the right to
indemnification provided by this Agreement. In the event Director is required to
bring any action or enforce rights or to collect moneys due under this
Agreement, the Restated Certificate of Incorporation, as amended, the Bylaws,
the State Statute or otherwise, regardless of whether the Director is successful
in such action, the Corporation shall reimburse Director for all of Director's
reasonable fees and expenses in bringing and pursuing such action, unless a
court of competent jurisdiction determines that each of the material claims made
by the Director in such action was not made in good faith and was frivolous.
12. NONEXCLUSIVITY AND SEPARABILITY.
(a) The right to indemnification and advancement of expenses provided
by this Agreement shall not be exclusive of any other rights to which Director
may be entitled under the
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Restated Certificate of Incorporation, as amended, the Bylaws of the
Corporation, the State Statute, any other statute, insurance policy, other
agreement, vote of stockholders of the Corporation or of the board of directors
(or otherwise), both as to actions in his official capacity and as to actions in
another capacity while holding such office, and shall continue after Director
has ceased to be a director or officer of the Corporation and shall inure to the
benefit of his heirs, executors and administrators; provided, however, that to
the extent Director otherwise would have any greater right to indemnification
and/or advancement of expenses under any provision of the Restated Certificate
of Incorporation, as amended, the Bylaws of the Corporation, or the State
Statute, Director shall be deemed to have such greater right pursuant to this
Agreement; and provided, further, that to the extent that any change is made to
the State Statute (whether by legislative action or judicial decision), the
Restated Certificate of Incorporation, as amended, and/or the Bylaws that
permits any greater right of indemnification and/or advancement of expenses than
that provided under this Agreement as of the date hereof, Director shall be
deemed to have such greater right pursuant to this Agreement.
(b) If any provision or provisions of this Agreement are held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including without limitation all portions of any provisions of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and (ii) to the fullest extent possible, the
provisions of this Agreement (including without limitation all portions of any
provisions of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
13. GOVERNING LAW; BINDING EFFECT; AMENDMENT AND TERMINATION.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Delaware.
(b) This Agreement shall be binding upon and shall inure to the benefit
of (i) the Director and Director's heirs, personal representatives, executors,
administrators and assigns and (ii) the Corporation and its successors and
assigns, including any transferee of all or substantially all of the
Corporation's assets and any successor or assign of the Corporation by merger or
by operation of law. In the event that the Corporation shall be a constituent
corporation in a merger, consolidation or other reorganization, the Corporation
shall require as a condition thereto, (a) if it shall not be the surviving,
resulting or other corporation therein, the surviving, resulting or acquiring
corporation to agree to indemnify Director to the full extent provided herein,
and (b) whether or not the Corporation is the surviving, resulting or acquiring
corporation therein, Indemnitee shall also stand in the same position under this
Agreement with respect to the surviving, resulting or acquiring corporation as
he would have with respect to the Corporation if its separate existence had
continued.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
The indemnification afforded to Director hereby is a contract right and may not
be diminished, eliminated or otherwise affected
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with amendments to the Corporation's Restated Certificate of Incorporation, as
amended, Bylaws or agreements, including any directors and officers liability
insurance policies, whether the alleged actions or conduct giving rise to the
indemnification hereunder arose before or after any such amendment. No waiver of
any provision of this agreement shall be deemed or shall constitute a waiver of
any other provisions hereof, whether or not similar, nor shall any waiver
constitute a continuing waiver.
14. NOTICE. All notices and communications pursuant to this Agreement
shall be in writing and shall be deemed duly given on the date of delivery if
personally delivered or on the date of receipt or refusal indicated on the
return receipt if sent by first class mail, postage prepaid, registered or
certified, return receipt requested to the following addresses, unless notice of
a change of address is duly given by one party to the other, in which cases
notices shall be sent to such changed address:
If to the Corporation:
Wolverine Tube, Inc.
000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to the Director:
[INSERT]
15. SUBROGATION. In the event of any payment under this Agreement to or
on behalf of Director, the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of Director against any person, firm,
corporation or other entity (other than the Corporation) and Director shall
execute all papers requested by the Corporation and shall do any and all things
that may be necessary or desirable to secure such rights for the Corporation,
including the execution of such documents necessary or desirable to enable the
Corporation to effectively bring suit to enforce such rights.
16. HEADINGS. The headings used herein are for convenience only and
shall not be used in construing or interpreting any provision of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.
18. SUBJECT MATTER AND PARTIES. The intended purpose of this Agreement
is to provide for indemnification and advancement of expenses, and this
Agreement is not intended to affect any other aspect of any relationship between
Director and the Corporation and is not intended to and shall not create any
rights in any person as a third party beneficiary hereunder.
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19. INTERPRETATION OF AGREEMENT. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Director to the fullest extent now or hereafter permitted
by law.
20. VESTED RIGHTS; SPECIFIC PERFORMANCE. No amendment to the Restated
Certificate of Incorporation, as amended, or Bylaws of the Corporation or any
other corporate action shall in any way limit Director's rights under this
Agreement. In any proceeding brought by or on behalf of Director to specifically
enforce the provisions of this Agreement, the Corporation hereby waives the
claim or defense therein that the plaintiff or claimant has an adequate remedy
at law, and the Corporation shall not urge in any such proceeding the claim or
defense that such remedy at law exists. The provisions of this Section 20,
however, shall not prevent Director from seeking a remedy at law in connection
with any breach of this Agreement.
21. MUTUAL ACKNOWLEDGEMENT. Both the Corporation and Director
acknowledge that in certain instances, Federal law or applicable public policy
may prohibit the Corporation from indemnifying its directors and officers under
this Agreement or otherwise. Director understands and acknowledges that the
Corporation has undertaken or may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification
to a court in certain circumstances for a determination of the Corporation's
right under public policy to indemnify Director.
22. TERMINATION OF PREVIOUS AGREEMENT. This Agreement terminates and
replaces the Indemnity Agreement dated __________ between the Director and the
Corporation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date and year first above written.
WOLVERINE TUBE, INC.
By:
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Its Chief Executive Officer
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[NAME OF DIRECTOR]
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