EXHIBIT 10.3
RESTRICTED STOCK AGREEMENT
UNDER THE
WOLVERINE TUBE, INC.
2003 EQUITY INCENTIVE PLAN
(As amended as of July 24, 2003)
RESTRICTED STOCK AGREEMENT (the "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 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
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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 fifty
percent (50%) 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.
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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.
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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:
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Name: Dennis Horowitz
Title: Chairman, 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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