Exhibit 10.1
AMENDED AND RESTATED CONSULTING AGREEMENT
This
AMENDED AND RESTATED CONSULTING AGREEMENT,(the "Agreement"), is
made
by and between MUELLER INDUSTRIES, INC., a Delaware corporation
having its
principal address at 8285 Tournament Drive, Suite 150, Memphis,
Tennessee 38125
(the "Company"), and WILLIAM D. O'HAGAN, an individual residing at
8648
Southwind Drive, Memphis, TN 38125 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is currently employed with the Company
pursuant to
an Amended and Restated Employment Agreement, effective as of
September 17,
1997, amended as of May 12, 2000 (the "Employment Agreement"), and
the Company
desires to retain the Executive to provide certain consulting
services to the
Company following termination of his employment;
WHEREAS, the Company and the Executive are parties to that
certain
Consulting Agreement, dated June 21, 2004 (the "Prior Consulting
Agreement");
and
WHEREAS, the Company and the Executive wish to amend and restate
the Prior
Consulting Agreement on the terms set forth herein.
NOW
THEREFORE, in consideration of the mutual covenants hereinafter
set
forth, the Executive and the Company hereby agree as follows:
1.
Effective
Date.
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This
Agreement shall become effective (the "Effective Date") on January
1,
2009.
2.
Appointment as
Independent Consultant.
-------------------------------------
On
the Effective Date, Executive shall be appointed as an
independent
consultant and advisor to the Company. As an independent consultant
and advisor
to the Company, the Executive shall be available upon reasonable
notice given by
the Company to consult with and advise the Company on matters
within his
expertise and for which he had responsibility for during his
employment with the
Company, provided that the Executive shall not be required to
devote more than
20 hours per month to such consulting services during the first
four (4) years
of the Consulting Period (as defined below) and not more than 10
hours per month
to such consulting services during the last two years of the
Consulting Period.
Executive shall not be required to render consulting services from
any
particular location and shall not be required to travel or be
present at the
Company's principal offices.
3.
Consulting
Period.
-----------------
The
Executive shall be available to provide the consulting and
advisory
services set forth in Section 1 above for a period commencing on
the Effective
Date and ending on the sixth anniversary of the Effective Date (the
"Consulting
Period").
<PAGE>
4.
Consulting Fee
and Benefits.
---------------------------
a.
As compensation
for the Executive's consulting and advisory services
during the Consulting Period, the Company shall pay the Executive
as follows:
(i) for each of the first four (4) years of the Consulting
Period, an annual consulting fee equal to two-thirds of the
Executive's Final Base Compensation, which shall be defined as
the
lesser of (A) the Executive's highest annual cash compensation
(consisting of base salary and annual bonus) during the last
three
years of his employment with the Company or (B) $2 million;
(ii) for each of the final two (2) years of the Consulting
Period, an annual consulting fee equal to one-third of the Final
Base
Compensation; and
(iii) such consulting fee shall be paid in equal installments
in
accordance with the normal payroll practices of the Company, but
not
less frequently than monthly, except that compensation for the
first
six months of the Consulting Period shall be paid in a lump sum
six
months and one day following the Effective Date.
b.
The Executive
shall be entitled to reimbursement for reasonable
business and travel expenses incurred in the performance of his
duties in
accordance with the Company's normal reimbursement practices. To
the extent that
any right to reimbursement of expenses under this Agreement
constitutes
nonqualified deferred compensation (within the meaning of Section
409A of the
Internal Revenue Code of 1986, as amended (the "Code")), such
expense
reimbursement shall be made by the Company no later than the last
day of the
taxable year following the taxable year in which such expense was
incurred by
the Executive.
c.
For each
calendar year during the Consulting Period, the Company shall
pay the Executive an amount equal to the Executive's cost of
obtaining private
health insurance coverage having terms, substantially equivalent to
the health
coverage provided to executive officers of the Company as in effect
from time to
time during the Consulting Period. Such amounts shall be made on or
after
January 1 of each calendar year of the Consulting Period, but in no
event later
than December 31 of each calendar year of the Consulting
Period.
5.
Termination of
the Consulting Relationship.
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a.
The Executive
may terminate his consulting and advisory relationship
with the Company hereunder, with or without Good Reason, upon
thirty (30) days'
advance written notice to the Company. The Company may terminate
the Executive's
consulting and advisory relationship with the Company hereunder,
with or without
Cause, upon thirty (30) days' advance written notice to the
Executive.
b.
The Company shall have
Cause to terminate the Executive's consulting
and advisory relationship with the Company hereunder upon (i) the
Executive's
willful and continued failure to substantially perform his
obligations
hereunder, (ii) the engaging by the Executive in willful misconduct
which is
demonstrably and materially injurious to the Company, or (iii) the
Executive's
conviction of a felony for a crime of moral turpitude. For purposes
of this
-2-
<PAGE>
Section 5.b., no act, or failure to act, on the Executive's part
shall be
considered "willful" unless done, or omitted to be done, by him not
in good
faith and without reasonable belief that his action or omission was
in the best
interest of the Company. The Executive's consulting and advisory
relationship
may not be terminated for Cause in the case of actions or omissions
described in
clauses (i) or (ii) of this Section 5(b) unless the Company shall
have given the
Executive an opportunity to cure any such actions or omissions
during the 30-day
period after the Executive's receipt of written notice.
c.
The Executive
shall have Good Reason to terminate his consulting and
advisory relationship with the Company hereunder upon any breach of
this
Agreement by the Company, other than an immaterial, isolated and
inadvertent
breach which did not occur in bad faith and is cured by the Company
within 10
days of notice thereof from the Executive.
d.
Upon the
Company's termination of Executive's consulting and advisory
relationship by the Company hereunder for Cause or by the Executive
without Good
Reason, neither the Executive nor the Company shall have any
further obligations
hereunder.
e.
If the Company
terminates the Executive's consulting and advisory
relationship hereunder without Cause, or if the Executive
terminates such
relationship for Good Reason, the Company shall continue to pay to
the Executive
the amounts which would have been payable to the Executive pursuant
to Sections
4(a) and 4(c) of this Agreement for the remaining term of the
Consulting Period
had such relationship not been so terminated, which amounts shall
be paid at the
same time or times as they would have been paid had such
relationship not been
so terminated.
6.
Noncompetition.
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During the Consulting Period, the Executive shall not, without
the
Company's consent, directly or indirectly engage in any Competitive
Activity (as
defined below). "Competitive Activity" shall mean the participation
in or
becoming an employee, director, officer, consultant, independent
contractor or
advisor of or to, or otherwise providing services to any business,
partnership,
firm, association, corporation or other entity which conducts
business that is
the same as or substantially similar to and is or would be
competitive with the
business of the Company at the time. Nothing herein, however, shall
prohibit
Executive from acquiring or holding any issue of stock or
securities of any
business, individual, partnership, firm, or corporation
(collectively "Entity")
which has any securities listed on a national securities exchange
or quoted in
the daily listing of over-the- counter market securities, provided
that at any
one time he and members of his immediate family do not own more
than five
percent of the voting securities of any such Entity.
7.
Notices.
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Any
notice or other communication hereunder shall be made in writing
by
hand-delivery or telecopier (and, if by telecopier, followed by a
copy either
delivered by hand within three days thereafter or sent by
registered first-
cla
