EXHIBIT 10.1
RESTRICTED STOCK AGREEMENT
UNDER THE
WOLVERINE TUBE, INC.
2003 EQUITY INCENTIVE PLAN
(As amended as of May 19, 2005)
RESTRICTED STOCK AGREEMENT (the "Agreement"), dated as of ____________ (the
"Grant Date"), between WOLVERINE TUBE, INC., a Delaware corporation (the
"Company"), and the other party signatory hereto (the "Participant").
WHEREAS the Participant is currently an officer or employee of the Company
or one of its Subsidiaries and, pursuant to the Company's 2003 Equity Incentive
Plan, as amended (the "Plan") and upon the terms and subject to the conditions
hereinafter set forth, the Company desires to provide the Participant with an
incentive to remain in its employ and to increase his or her interest in the
success of the Company through the granting to the Participant of restricted
shares of common stock of the Company, par value $0.01 per share as described on
Exhibit A hereto (the "Restricted Stock").
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Incorporation of Plan Terms; Definitions. This Agreement and the
Restricted Stock shall be subject to the Plan, the terms of which are
hereby incorporated herein by reference, and in the event of any
conflict between the Plan and this Agreement, the Plan shall govern.
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Plan.
2. Grant of Restricted Stock. Subject to the terms, conditions and
restrictions set forth in this Agreement and in the Plan, the Company
hereby grants to the Participant, effective as of the Grant Date, the
Restricted Stock specified on Exhibit A hereto. The Restricted Stock
shall be fully paid and nonassessable and shall be represented by a
certificate or certificates registered in the name of the Participant
or an appropriate entry in the stock records of the Company maintained
by its transfer agent. Any such certificate(s) registered in the name
of the Participant and any such stock book entry account shall bear a
legend or other appropriate designation referring to the restrictions
hereinafter set forth.
3. Restrictions on Transfer of Restricted Stock. The shares of Restricted
Stock may not be sold, transferred, assigned, pledged, exchanged or
otherwise encumbered or disposed of by the Participant until they have
become nonforfeitable in accordance with Section 4, except (a) to the
Company; (b) by will or the laws of descent and distribution; (c)
pursuant to a domestic relations order in settlement of marital
property rights; (d) to a revocable trust under circumstances where
the Participant is the trustee or co-trustee of such revocable trust
and the trust beneficiaries are limited to the Participant, and in the
event of the Participant's death, the Participant's spouse, lineal
descendants and lineal ancestors; or (e) to or for the benefit of the
Participant's Immediate Family (including, without limitation, to a
trust for the benefit of the Participant's Immediate Family or to a
partnership or a limited liability company whose only partners or
members are the Participant and/or the Participant's Immediate
Family). Any such permitted transferee (other than the Company) shall
remain subject to all the terms and conditions applicable to the
Restricted Stock prior to such transfer. Any purported transfer,
encumbrance or other disposition of the Restricted Stock that is in
violation of this Section 3 shall be null and void, and the other
party to any such purported transaction shall not obtain any rights to
or interest in the Restricted Stock.
4. Vesting of Restricted Stock. (a) On each anniversary of the Grant
Date, the number of shares of Restricted Stock equal to _______
multiplied by the initial number of shares of Restricted Stock
specified in this Agreement shall become nonforfeitable on a
cumulative basis until all of the shares of Restricted Stock have
become nonforfeitable, subject to the Participant's remaining in the
continuous employ of the Company or one of its Subsidiaries. For
purposes of this Agreement, the continuous employment of the
Participant with the Company or one of its Subsidiaries shall not be
deemed to have been interrupted, and the Participant shall not be
deemed to have ceased to be an employee of the Company or one of its
Subsidiaries, by reason of the transfer of the Participant's
employment among the Company and its Subsidiaries or a leave of
absence approved by the Board.
(b) Notwithstanding the provisions of Section 4(a), all of the shares
of Restricted Stock shall immediately become nonforfeitable in the
event of (i) a Change in Control, or (ii) the Participant's
retirement, death or permanent and total disability while in the
employ of the Company or one of its Subsidiaries. For purposes of this
Agreement, the term "retirement" shall mean the Participant's
termination or resignation of continuous employment of the Participant
with the Company or one of its Subsidiaries on or after the
Participant has attained an age at which the Participant qualifies for
retirement under a pension plan of the Company or one of its
Subsidiaries; provided, however, that should the Participant not be
qualified for retirement under a pension plan of the Company or one of
its Subsidiaries at the time of such termination or resignation,
whether the Participant has retired for purposes of this Agreement
shall be determined in good faith by the Committee, and such
determination shall be final and binding on all persons.
5. Forfeiture of Restricted Stock. Subject to Section 4(b), and except as
the Board may determine on a case-by-case basis, any shares of
Restricted Stock that have not theretofore become nonforfeitable shall
be forfeited if the Participant ceases to be continuously employed by
the Company or one of its Subsidiaries at any time prior to the
applicable vesting date. In the event of a forfeiture, the
certificate(s) or stock book entry account representing the shares of
Restricted Stock shall be cancelled. In the event of a termination for
cause, all shares of Restricted Stock on which the restrictions
described in Section 3 have not lapsed shall be forfeited. For
purposes of this Agreement, "cause" shall mean (i) the failure or
refusal of the Participant to perform the duties of his or her
employment, (ii) the Participant's fraud or dishonesty against the
Company or any of its Subsidiaries, or (iii) the Participant's willful
or negligent acts or omissions which are materially harmful to the
Company or any of its Subsidiaries, including, without limitation, the
Participant's unauthorized disclosure of confidential information
related to the business of the Company or any of its Subsidiaries.
Whether the Participant's
employment has been terminated for cause shall be determined in good
faith by the Committee, and such determination shall be final and
binding on all persons.
6. Voting and Dividend Rights. Except as otherwise provided herein, the
Participant shall have all of the rights of a stockholder with respect
to the shares of Restricted Stock, including the right to vote such
shares and receive any dividends that may be paid thereon.
7. Retention of Stock Certificate(s) by the Company. Any certificate(s)
representing the Restricted Stock shall be held in custody by the
Treasurer of the Company for the account of the Participant, together
with a stock power endorsed in blank by the Participant with respect
thereto, until those shares have become nonforfeitable in accordance
with Section 4. The Participant shall deliver to the attention of the
Treasurer at the Company's home office such stock power, endorsed in
blank, relating to any certificated Restricted Stock simultaneously
with the execution of this Agreement or as requested hereafter. Any
certificate(s) for shares of unrestricted stock shall be delivered to
the Participant as soon as reasonably practicable after the period of
forfeiture has expired without forfeiture in respect of such shares of
Restricted Stock.
8. No Rights to Grants or Continued Employment. The Participant shall not
have any claim or right to receive grants under the Plan. Nothing
contained in this Agreement or the Plan shall confer upon the
Participant any right to be retained in the employ of the Company or
any of its Subsidiaries, nor limit or affect in any manner the right
of the Company or any of its Subsidiaries to terminate the employment
or adjust the compensation of the Participant.
9. Taxes and Withholding. As a condition to the issuance or vesting of,
or lapse of restrictions pertaining to, any Restricted Stock pursuant
to this Agreement, the Company may, in the discretion of the
Committee, require the Participant to pay such sum to the Company (or
any of its Subsidiaries or affiliates) as may be necessary to
discharge the obligations of the Company (or any of its Subsidiaries
or affiliates) with respect to any taxes, assessments or other
governmental charges imposed on property or income received by the
Participant pursuant to the Plan and this Agreement. In the discretion
of the Committee, such payment may be in the form of cash or other
property. In the discretion of the Committee, the Company may (a)
cause any such withholding obligation to be satisfied by withholding
shares otherwise available for delivery to the Participant that have a
Fair Market Value on the date the tax is to be determined equal to the
minimum statutory total tax which could be imposed on the transaction;
or (b) deduct or withhold from any payment or distribution to a
Participant whether or not pursuant to the Plan or this Agreement.
10. Compliance with Law. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws;
provided, however, notwithstanding any other provision of this
Agreement, the Company shall not be obligated to issue any restricted
or unrestricted common stock or other securities pursuant to this
Agreement if the issuance thereof would result in a violation of any
such law.
11. Waiver. The waiver by either party of compliance with any provision of
this Agreement by the other party shall not operate or be construed as
a waiver of any other provision of
this Agreement, or of any subsequent breach by such party of a
provision of this Agreement.
12. Severability. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be
separable from the other provisions hereof, and the remaining
provisions hereof shall continue to be valid and fully enforceable.
13. Headings. The headings of sections and subsections herein are included
solely for convenience of reference and shall not affect the meaning
of any of the provisions of this Agreement.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same
Agreement.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
two of its duly authorized officers and the Participant has executed this
Agreement, both as of the Grant Date.
WOLVERINE TUBE, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Chairman, President and
Chief Executive Officer
By:
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Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer, Senior Vice
President and Secretary
PARTICIPANT
By:
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