EXHIBIT 10.2
NON-QUALIFIED OPTION AGREEMENT
UNDER THE
WOLVERINE TUBE, INC.
2003 EQUITY INCENTIVE PLAN
(As amended as of July 24, 2003)
NON-QUALIFIED OPTION AGREEMENT, dated as of DATE (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 non-qualified
stock options (the "Options") to purchase shares of common stock of the Company,
par value $0.01 per share (the "Common Stock") as described on Exhibit A hereto.
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 Options
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 Option. Subject to the terms and conditions contained herein and
in the Plan, the Company hereby grants to the Participant, effective as of
the Grant Date, the Options specified on Exhibit A hereto. Each such
Option shall entitle the Participant to purchase, upon payment of the
relevant Option Price specified on Exhibit A hereto, the number of shares
of Common Stock corresponding to such Option as specified on Exhibit A
hereto. Each Option granted hereunder is not intended to qualify as, and
shall not be treated as, an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended.
3. Terms and Conditions of Options. The Options evidenced hereby are subject
to the following terms and conditions:
(a) Vesting. Each Option shall vest according to the schedule
corresponding to such Option as specified on Exhibit A hereto.
However, all Options shall immediately vest and become exercisable
upon a Change in Control of the Company.
(b) Option Period. No Option may be exercised after the relevant
expiration date set forth on Exhibit A. Upon termination of the
Participant's Full-Time Employment (as hereinafter defined) with the
Company, the Options, to the extent then vested (the "Vested
Options"), may be exercised as follows:
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(i) If the Participant's Full-Time Employment terminates by reason
of Disability (as hereinafter defined), the Vested Options
shall be exercisable by the Participant for one year following
the date of such termination;
(ii) If the Participant's Full-Time Employment terminates by reason
of Retirement (as hereinafter defined), the Vested Options
shall be exercisable by the Participant until their
expiration;
(iii) If the Participant's Full-Time Employment terminates by reason
of the Participant's death, the Vested Options shall be
exercisable by the Participant's Beneficiary (as hereinafter
defined) for one year following the date of death;
(iv) If the Participant's Full-Time Employment is terminated by the
Company or one of its Subsidiaries for Cause (as hereinafter
defined) or if the Participant voluntarily resigns his
employment with the Company or one of its Subsidiaries for any
reason other than Disability or Retirement, all Vested Options
shall immediately terminate and cease to be exercisable as of
the date of such termination or resignation; and
(v) If the Participant's Full-Time Employment terminates for any
other reason not specified above in this Section 3(b), the
Vested Options shall be exercisable by the Participant for 90
days following the date of such termination.
The Committee may, in its sole discretion, provide for a longer
post-termination exercise period than the applicable period
specified above. Any Option which is not a Vested Option as of the
date of the Participant's termination of Full-Time Employment shall
terminate as of such date and be of no further force and effect.
For the purposes of this Section 3(b), the following terms shall
have the meanings set forth below:
"Full-Time Employment" means regular employment as a common
law employee of the Company or one of its Subsidiaries for at
least 35 hours per week.
"Retirement" means the Participant's termination or
resignation of Full-Time Employment 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.
"Disability" means permanent disability as defined in the
long-term disability policy of the Company or one of its
Subsidiaries applicable to the Participant.
"Beneficiary" means the person designated by the Participant
in writing to the Company on Exhibit B as having the right to
exercise the Vested Options in the event of the Participant's
death or, if no such person is designated, the Participant's
estate.
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"Cause" means (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.
(c) Transfer Restrictions. None of the Options may be sold, transferred,
assigned, pledged, exchanged or otherwise encumbered or disposed of
by the Participant, except by will or the laws of descent and
distribution in accordance with the Plan and Section 3(b)(iii) of
this Agreement. During the Participant's lifetime, the Options shall
be exercisable only by the Participant.
(d) Notice of Exercise. Subject to Sections 3(e), 3(g) and 5 hereof, the
Participant may exercise any or all of the Options that have vested
pursuant to Section 3(a) and 3(b) hereof, by giving a properly
executed written notice of exercise to the Committee or its
designee, a form of which will be provided by the Company.
(e) Payment. The Participant shall pay the Option Price in full at the
time the written notice of exercise (pursuant to Section 3(d)
hereof) is given to the Committee. Such payment shall be in cash,
bank certified or cashier's check or personal check (unless at the
time of exercise the Committee in a particular case determines not
to accept a personal check) for the Common Stock being purchased.
The Committee may, but need not, determine in its sole discretion at
any time before the exercise of the Options that additional forms of
payment may be permitted in accordance with the Plan.
(f) Evidence of Share Issuance; Stockholder Rights. As soon as
practicable following the exercise of an Option, a stock certificate
or certificates evidencing the appropriate number of shares of
Common Stock issued in connection with such exercise shall be issued
in the Participant's name to the Participant, or an appropriate
entry regarding the issuance of such shares shall be made for the
Participant's account in the stock records of the Company maintained
by its transfer agent. The Participant shall have no rights as a
stockholder with respect to any shares of Common Stock issued or
issuable upon exercise of an Option until such certificate(s) are
issued or such book entry is made. No adjustment shall be made for
dividends or distributions or other rights in respect of any share
for which the record date is prior to the date upon which the
Participant shall become the holder of record thereof.
(g) Limitation on Exercise. The Options shall not be exercisable unless
either the Common Stock subject to the Options has been registered
under the Securities Act of 1933, as amended, and qualified under
applicable state "blue sky" laws in connection with the offer and
sale thereof, or the Participant has furnished the Company with an
investment representation satisfactory to the Company that such
registration and qualification is not required as a result of the
availability of an exemption from registration under such laws.
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4. 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.
5. Taxes and Withholding. As a condition to the issuance, vesting or exercise
of, or lapse of restrictions pertaining to, any Options 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.
6. 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 Common Stock or other securities pursuant to
this Agreement if the issuance thereof would result in a violation of any
such law.
7. Notices. All notices and other communications provided for herein shall be
in writing and shall be delivered by hand or sent by certified or
registered mail, return receipt requested, postage prepaid, addressed, if
to the Participant, to his or her attention at the mailing address set
forth at the foot of this Agreement (or to such other address as the
Participant shall have specified to the Company in writing) and, if to the
Company, to Wolverine Tube, Inc., 200 Clinton Avenue, Suite 1000,
Huntsville, AL 35801, Attention: Stock Options Administrator. All such
notices shall be conclusively deemed to be received and shall be
effective, if sent by hand delivery, upon receipt, or if sent by
registered or certified mail, on the fifth day after the day on which such
notice was mailed.
8. 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.
9. 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.
10. 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.
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11. 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.
12. 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:
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Name: Dennis Horowitz
Title: President and
Chief Executive Officer
By:
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Name: James E. Deason
Title: Executive Vice President and
Chief Financial Officer
PARTICIPANT
By: _____________________________________
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EXHIBIT A
[To be conformed from First Union employee form]
EXHIBIT B
DESIGNATION OF BENEFICIARY
FOR THE
NON-QUALIFIED OPTION AGREEMENT
UNDER THE
WOLVERINE TUBE, INC.
2003 EQUITY INCENTIVE PLAN, AS AMENDED
Note to Participants: Completion of this form is only necessary if you wish to
designate a beneficiary other than your estate. If you do not submit this form,
all rights to the Options granted under this Agreement that you hold at your
death will be transferred to your estate.
Name of Participant: EMPLOYEE
Date of Option Agreement: DATE
If my employment with the Company terminates by reason of my death, or if I die
after I have terminated my employment with the Company, but prior to the
expiration of the Options (as provided in this Agreement), then all rights to
the Options granted under this Agreement that I hold upon my death, to the
extent not previously terminated or forfeited, shall be transferred to my
primary beneficiary designated below, or to my secondary beneficiary designated
below if my primary beneficiary is unable to accept transfer, in the manner
provided for in the Plan and this Agreement.
Primary Beneficiary: _______________________________
Relationship: _______________________________
Address: _______________________________
Phone: _______________________________
Secondary Beneficiary: _______________________________
Relationship: _______________________________
Address: _______________________________
Phone: _______________________________
_______________________________
Participant
_______________________________
Date
Receipt acknowledged on behalf of Wolverine Tube, Inc. by:
_______________________________
_______________________________
Date