CONSULTANT AGREEMENT
AN
AGREEMENT by and between Wolverine Tube, Inc. (“Company”) and Xxxxx X. Xxxxxx,
an individual with an address at 0000 Xxx Xxxx Xxxxxx Xxxxxxxxxx, Xxxxxxx 00000
(“Consultant”):
WHEREAS,
Company desires Consultant to provide certain financial and accounting
consulting services following his retirement; and
WHEREAS,
Consultant is willing to provide such services and the Company is willing to
provide certain benefits to Consultant;
NOW,
THEREFORE, the parties hereto, in consideration of the mutual promises recited
herein, agree as follows:
1. Consultant
shall provide such financial and accounting consulting services as the President
and Chief Operating Officer, the Chief Financial Officer or the Board of
Directors may request for the consideration outlined in Section 2, herein below.
2. As
full
and total compensation for services rendered under this Agreement Company shall
pay Consultant One Hundred Sixty-Five Thousand Eighty-Three and no/100 Dollars
($165,083.00), payable in monthly installments of Thirteen Thousand Seven
Hundred Fifty-Seven and no/100 Dollars ($13,757.00) on the first day of each
month during the term of this Agreement. Company shall also provide retiree
medical insurance coverage to Consultant and his spouse under Company’s group
health plan at the active employee rate.
Company
shall not be responsible for deducting from any consideration paid under this
Agreement any taxes, unemployment, social security, or other expense. Moreover,
Consultant, his employees, agents, and independent contractors shall have no
authority, nor shall they represent themselves as having any authority, to
bind
Company in any manner whatsoever.
No
additional compensation or fee shall be payable by Company to Consultant by
reason of any benefit gained by Company directly or indirectly through
Consultant's efforts in Company's behalf, nor shall Company be liable in any
way
for any additional compensation, fee or expenses unless the parties have
expressly agreed thereto in writing.
3. Company
shall reimburse Consultant for reasonable travel expenses in accordance with
the
expense account policies of Company. Consultant shall submit application for
such reimbursement in a form acceptable to the Company and shall include all
backup documentation.
4. Consultant
is an independent contractor and neither an agent nor employee of Company.
Consultant shall not represent himself as an agent of Company and may not commit
or
obligate Company in any way to other parties. Consultant hereby waives any
entitlement to any benefits or privileges provided by Company to its
employees.
5. In
view
of the services to be performed hereunder, Consultant agrees that:
(a) Except
as
an authorized representative of Company may otherwise consent in writing,
Consultant will not disclose to any third party at any time, either during
or
subsequent to the term of this Agreement, any information, knowledge, or data
of
Company which he may receive or develop during said term relating to inventions,
discoveries, formulas, processes, methods, machines, compositions, computer
programs, accounting methods, financial information, or business plans and
information systems, or other matters which are of a proprietary or confidential
nature, including any information or data of others which Company is obligated
to maintain in confidence, and that it will not use such information, knowledge,
or data for purposes beyond the scope of this Agreement except as an authorized
officer of Company may otherwise consent in writing.
(b) All
written or otherwise documented information and information-bearing materials
which may be prepared by or furnished to Consultant under this Agreement shall
be and remain the exclusive property of Company and shall be delivered to
Company upon termination of this Agreement or upon earlier request of
Company.
(c) Company
shall have the full and unrestricted right to use and publish any information,
knowledge, or data disclosed by Consultant to Company subject only to such
prior
rights as may arise under the patent and copyright statutes, except that
Consultant shall not be entitled to assert against Company any such rights
belonging to Consultant unless it shall have notified Company in writing thereof
prior to the effective date of this Agreement.
6. Consultant
hereby represents and warrants that:
(a) With
respect to any information, knowledge, or data disclosed by Consultant to
Company in the performance of this Agreement, Consultant has the full and
unrestricted right to disclose the same.
(b) Consultant
is free to undertake the services required by this Agreement, and that there
is
no conflict of interest between his performance of this Agreement and any
obligation he may have to other parties.
7. The
services to be provided under this Agreement are to be performed entirely at
Consultant’s risk. The parties shall indemnify one another and hold one another
harmless from any liability, cost, or expense, including attorneys’ fees,
arising out of, or in connection with, any wrongful or negligent action or
failure to act by the other, its employees, agents, or independent contractors.
8.
The
Consultant’s rights and obligations under this Agreement may not be assigned
without prior written consent of Company.
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9. This
Agreement shall be effective January 1, 2008. It shall terminate no later than
December 31, 2008 unless it is extended by mutual agreement. This Agreement
may
be earlier terminated by Company or the Consultant for the convenience of either
with thirty (30) days’ written notice, and upon the date of termination by
either party for convenience, the Company’s payment obligations under Section 2
hereinabove shall cease. The obligations of Consultant under Sections 5 and
7,
hereinabove, shall survive and not be affected by any termination of this
agreement, or by its expiration.
10. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Alabama.
11. This
Agreement shall constitute the sole agreement between the parties hereto with
respect to the subject matter hereof and shall supersede any and all prior
agreements or understandings relating to the subject matter hereof and between
Wolverine Tube, Inc. and Xxxxx X. Xxxxxx, specifically including: (i) the 2002
Change in Control, Severance and Non-Competition Agreement dated July 12, 2002;
(ii) the Consultant Agreement between Wolverine Tube, Inc. and Xxxxx X. Xxxxxx
dated March 31, 2005; and (iii) the Offer Letter to Xxxxx X. Xxxxxx dated
November 7, 2005; provided, however, Section 2 of Appendix A of the Offer Letter
to Xxxxx X. Xxxxxx dated November 7, 2005 (“Secrecy, Non-Solicitation and
Non-Competition”) shall remain in full force and effect. No change or amendment
to this Agreement shall be binding unless in writing and signed by both
parties.
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be signed
as
of the date indicated below.
Xxxxx X. Xxxxxx | Wolverine Tube, Inc. | |||
Consultant | Company | |||
By: | /s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxxx X. Xxxx | |
Signature | Signature | |||
Name: | Xxxxx X. Xxxxxx | Name: | Xxxxxx X. Xxxx | |
Printed | Printed | |||
Title: | Title: | President & Chief Operating Officer | ||
Date: | 2/21/2008 | Date: | 2/29/2008 |
Consultant
Agreement Between Xx. Xxxxx X. Xxxxxx and Wolverine Tube, Inc. Effective
January
1, 2008
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