EXHIBIT 10.1
SEVERANCE AGREEMENT BETWEEN
WOLVERINE TUBE, INC. AND XXXXXX X. XXXXX
This Severance Agreement ("this Agreement") between Wolverine Tube,
Inc. ("Wolverine") and Xxxxxx X. Xxxxx ("Xxxxx") controls the terms of the
severance of the relationship between the two parties and their respective
rights and obligations to each other.
Recitals
WHEREAS, Xxxxx and Wolverine wish to sever the employee-employer
relationship between the two parties on amicable terms and in a manner
beneficial to and respectful to the desires of both parties; and
WHEREAS, Xxxxx and Wolverine previously have entered into a 2004 Change
in Control, Severance and Non-Competition Agreement with an Effective Date of
December 1, 2004 (the "2004 Change in Control Agreement"); and
WHEREAS, in order to avoid any dispute that could arise under the 2004
Change in Control Agreement the parties have agreed to replace and supersede
certain provisions of the 2004 Change In Control Agreement relating to the
termination of employment.
NOW, THEREFORE, in consideration of the recitals and mutual covenants
and agreements set forth below, the parties, each intending to be legally bound,
agree as follows:
1. Resignation of Employment. Xxxxx hereby voluntarily resigns his
employment with Wolverine effective November 4, 2005 (the "Resignation Date").
Wolverine's personnel records will reflect that Xxxxx'x employment ended as a
result of Xxxxx'x voluntary resignation. Xxxxx will be under no obligation or
authority to perform any duties for or on behalf of Wolverine after the close of
business on November 4, 2005.
2. Compensation, Benefits, and Other Consideration. The parties agree
that paragraph 1 entitled "Termination of Employment" of the 2004 Change in
Control Agreement is hereby superseded and will have no further force or effect,
and the parties will have no further rights and/or obligations thereunder. In
exchange for the General Release provided to Wolverine by Xxxxx pursuant to
Paragraph 5 of this Agreement, Wolverine hereby agrees to provide Xxxxx with
consideration consisting of the following:
a. a lump sum cash payment equal to Ninety-seven Thousand
Seven Hundred Seventy-seven and 05/100 Dollars ($97,777.05), which
represents the sum of the following amounts:
i. an amount equal to four (4) months of Xxxxx'x base
salary as in effect immediately prior to the Resignation Date;
ii. an amount equal to the cost necessary for Xxxxx
to continue his medical insurance coverage under the Wolverine group
health plan pursuant to
COBRA for a period of four (4) months following the Resignation Date
regardless of whether Xxxxx actually elects to continue such coverage;
iii. an amount equal to the estimated cost for Xxxxx
to purchase disability insurance similar to the disability insurance
coverage received by Xxxxx pursuant to Wolverine's long-term disability
insurance plan for a period of four (4) months following the
Resignation Date of this Agreement regardless of whether Xxxxx actually
purchases such coverage;
iv. an amount equal to the estimated cost for Xxxxx
to purchase life insurance coverage similar to the life insurance
coverage receive by Xxxxx under Wolverine's group term life insurance
plan for a period of four (4) months following the Resignation Date
regardless of whether Xxxxx actually purchases such coverage; plus
v. an amount equal to $675 multiplied by eleven (11)
which represents Xxxxx'x car allowance as set forth in Xxxxx'x offer
letter dated November 23, 2004.
b. an amount equal to the maximum percentage of monthly base
salary under the Wolverine bonus plan for 2005, in no event less than
forty-five percent (45%) of his monthly base salary multiplied by four
(4), which shall be paid to Xxxxx at the same time bonus payments are
made to other executives under Wolverine's bonus plan, but no later
than March 15, 2006; and
c. reimbursement for documented business-related expenses,
travel expenses already incurred by Xxxxx to and from Company
headquarters and temporary living expenses, including reimbursement for
any plane tickets to or from Company headquarters that were purchased
prior to the Resignation Date, and reimbursement for Xxxxx'x return
trip and associated costs via rental car to Wisconsin, payable all in
accordance with and pursuant to the Company's normal expense
reimbursement and relocation policies.
In addition to the foregoing, Wolverine shall also provide Xxxxx with
outplacement services provided by an outplacement consultant mutually agreeable
to Xxxxx and Wolverine for a period of six (6) months following the Resignation
Date.
Payments to Xxxxx of all compensation contemplated under this Agreement
are conditioned upon Xxxxx not revoking this Agreement pursuant to Paragraph 6
hereinbelow and shall be subject to all applicable legal requirements with
respect to the withholding of taxes and similar deductions. Xxxxx acknowledges
and agrees that the foregoing benefits are above and beyond what he otherwise
would be entitled to receive as a former employee of Wolverine. Nothing in this
Agreement affects any vested benefits Xxxxx has in any benefit plan or his
rights to continue medical insurance coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA").
3. Secrecy, Non-Solicitation and Non-Competition. Xxxxx agrees to
adhere to the secrecy, non-solicitation and non-competition restrictions and
equitable relief
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provisions contained in paragraph 2 of the 2004 Change in Control Agreement
following Xxxxx'x resignation and the parties also agree and understand that
since Xxxxx'x resignation is voluntary, Xxxxx does not have "Good Reason" (as
such term is defined in the 2004 Change In Control Agreement) to terminate his
employment with Wolverine.
4. Termination of 2004 Change In Control Agreement. The parties hereto
agree that except for Xxxxx'x obligation to adhere to the secrecy,
non-solicitation and non-competition and equitable relief provisions under
Paragraph 3 above, the 2004 Change in Control Agreement is terminated and of no
further force and effect and the parties agree that Xxxxx is not due any
payments or benefits under such agreement.
5. General Release. For and in consideration of the foregoing
obligations, the sufficiency of which is hereby acknowledged, Xxxxx does hereby
irrevocably and unconditionally RELEASE, ACQUIT, and FOREVER DISCHARGE Wolverine
and any of its affiliate companies, employees, officers, and directors of and
from any and all claims, actions, causes of action, demands, rights, damages,
costs, assessments, penalties, fees, and all other expenses whatsoever
(collectively referred to as "Claims"), arising prior to or on the date hereof,
except as expressly set forth below, which Xxxxx now holds, owns, or holds, or
claims to have, own, or hold, or which Xxxxx at any time heretofore had, owned,
or held, or claimed to have, own, or held, or which Xxxxx at any time hereafter
(based on any occurrence, action, or omission (whether or not a continuing
violation) on or before the date of this Agreement may have, own, or hold, or
claim to have, own, or hold, whether arising under federal law (including but
not limited to the federal Age Discrimination in Employment Act), state law
(including but not limited to the Alabama Age Discrimination in Employment Act),
and/or any other basis whatsoever. Xxxxx further waives and releases any Claims
Xxxxx may have arising out of or relating to the 2004 Change In Control
Agreement. For the same consideration, Xxxxx accepts the terms of this Agreement
as accord and satisfaction of all such Claims.
The only exceptions to this Agreement with its waiver and release are:
(a) Xxxxx'x right to enforce this Agreement; and
(b) Any Claims or rights arising out of events occurring
after the date of the execution of this Agreement.
6. Time To Consider and Revoke. Xxxxx represents and acknowledges that
he was supplied with a copy of this Agreement, that he has carefully read it,
that he fully understands its terms, that he has been advised hereby, in
writing, to consult with an attorney prior to the execution of this Agreement.
Xxxxx also acknowledges and agrees that he was given and hereby is given a
period of at least twenty-one (21) days within which to consider this Agreement
and to consult with an attorney and other advisors of his choice regarding the
same. Xxxxx understands that this Agreement releases and waives known and
unknown claims and rights and has other important legal consequences.
It is understood and agreed that for a period of seven (7) days
following the execution of this Agreement, Xxxxx may revoke the same by written
notice delivered by
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postage prepaid U.S. Mail, overnight delivery service (UPS or Federal Express),
or by hand delivery, to:
Xxx Xxxxx
Director of Human Resources
X.X. Xxx 0000
Xxxxxxx, XX 00000
Xxxxx further understands and agrees that during the seven (7) day
revocation period referenced above, this Agreement shall not become effective or
enforceable. Xxxxx further understands that in the event this Agreement is
revoked by Xxxxx or someone acting on his behalf within the seven day period
discussed above, then Wolverine shall be relieved of all obligations contained
within this Agreement. The day following the expiration of such seven (7) day
revocation period shall be the Effective Date of this Agreement.
7. No Waiver. Wolverine and Xxxxx agree that any failure of one party
to demand rigid adherence to one or more of the provisions of this Agreement, on
one or more occasions, shall not be construed as a waiver, estoppel, or release,
nor shall any such failure ever deprive either party of the right to insist upon
strict compliance.
8. Severability. If, for any reason, any paragraph, section, portion or
provision of this Agreement shall be held by a court or other tribunal to be
invalid or unenforceable, it is agreed by both parties that such a holding shall
not affect the enforceability of any other paragraph, section, portion or
provision of this Agreement. The parties further agree that a court may modify
any provision of this Agreement rather than hold the provision invalid or
unenforceable to effectuate the provision's intent to the fullest extent
possible.
9. Modification. No modification, amendment, or waiver of any of the
provisions of this Agreement shall be effective unless made in writing
specifically referring to this Agreement and signed by each of the parties.
10. Governing Law. The parties acknowledge and agree that the principal
place of business of Wolverine is located in Alabama, and that this Agreement
shall be considered to have been made in Alabama and the laws of the State of
Alabama shall govern this Agreement.
11. Entire Agreement. This instrument constitutes the entire agreement
between the parties with respect to the subject matter hereof. All prior
agreements, representations, and promises between the parties with respect to
the subject matter hereof are superseded by this Agreement.
12. Attorneys' Fees. If any action is brought to enforce this Agreement
or to collect damages as a result of a breach of any of its provisions, the
prevailing party shall also be entitled to collect its reasonable attorneys'
fees and costs incurred in such action, which costs can include the reasonable
cost of investigation, expert witnesses and the costs in enforcing or collecting
any judgment rendered, all as determined and awarded.
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IN WITNESS WHEREOF, XXXXX AND WOLVERINE HAVE CAUSED THIS AGREEMENT TO
BE EXECUTED ON THIS THE 9TH DAY OF NOVEMBER, 2005, BOTH INTENDING TO BE FULLY
AND LEGALLY BOUND.
WOLVERINE TUBE, INC.
BY: /S/ XXXXXX XXXXXXXX
----------------------------
NAME: XXXXXX XXXXXXXX
ITS: CHAIRMAN, PRESIDENT & CEO
WITNESS: /S/ XXXXXX X. XXXXXXX /S/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX
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