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EXHIBIT 10.2
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 HARVEY KARP,
an
individual residing at West End Road, (P.O. Box 30) East Hampton,
New York
11937 (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, and amended as of even date herewith (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 in
this
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Effective Date.
This Agreement shall become effective (the "Effective Date")
upon the termination of Executive's employment as Chairman of the
Company,
provided that the Executive's employment has not been terminated by
the
Company for Cause or on account of Executive's death or
permanent
disability.
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 (2) 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.
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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 (6th) anniversary of
the
Effective Date (the "Consulting Period").
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 (i) the Executive's highest annual cash
compensation (consisting of base salary and annual bonus) for
the three-year
period from 2005 to 2007 or (ii) $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, 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.
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.
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.
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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 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.
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.
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7. Notices.
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-class mail on the next business day) and shall be
deemed
to have been delivered and rece
