Exhibit 10.1
WAIVER
AGREEMENT
THIS AGREEMENT (the
“Agreement” ), effective as of August 12,
2005, is made and entered into by and among Mueller Water
Products, Inc., a Delaware corporation (the
“Company” ), Mueller Group, Inc., a
Delaware corporation (“ Mueller Group ”), and
[
] ( “Executive” ).
WHEREAS, pursuant to the Agreement
and Plan of Merger (the “Merger Agreement ”)
dated as of June 17, 2005 among the Company, Walter
Industries, Inc., a Delaware corporation (“
Walter ”), JW MergerCo, Inc., a Delaware
corporation (“ MergerCo ”), and DLJ Merchant
Banking II, Inc., a Delaware corporation (“ DLJMB
”), the Company will merge with and into MergerCo (the
“Merger” );
WHEREAS, upon consummation of the
Merger, the Executive may be entitled to receive a transaction
bonus (the “ Transaction Payment ”) and, if the
Executive is terminated in connection with the Merger, the
Executive will be entitled to receive severance benefits (the
“ Severance Payments ”) under the Employment
Agreement dated as
of between
Mueller Group and the Executive (the “Employment
Agreement” );
WHEREAS, the consummation of the
Merger could result in the payment of the Transaction Payment and
Severance Payments to the Executive (Transaction Payments and
Severance Payments, together, the “Change of Control
Payments” );
WHEREAS, the payment of the Change
of Control Payments in connection with the Merger could constitute
“parachute payments” made in connection with a
“change in control” of a corporation, within the
meaning of Section 280G of the Internal Revenue Code of 1986,
as amended (the “Code” ), which could result in
the imposition of certain excise taxes on Executive under
Section 4999 of the Code and in the loss of certain income tax
deductions by the Company under Section 280G of the Code if
the value of any such “parachute payments” constitutes
“excess parachute payments,” within the meaning of
Section 280G of the Code;
WHEREAS,
Section 280G(b)(5)(B) of the Code provides that payments
which would otherwise be “parachute payments” will not
be subject to Sections 280G and 4999 of the Code if the payments
are disclosed to and approved by the shareholders of the
corporation which is subject to the “change in
control,” provided that such approval is a condition to the
recipient’s right to receive the payments in question;
and
WHEREAS, in order to ensure that the
Change of Control Payments are not subject to Sections 280G and
4999 of the Code, the Company and Executive have determined that it
is in their interest to enter into an agreement that limits the
amount of the Change of Control Payments and any other payments
which would otherwise constitute “parachute payments”
subject to Section 280G of the Code to amounts which would not
result in “excess parachute payments” under
Section 280G of the Code, and pursuant to which the Company
would undertake to formally obtain approval by the Company’s
shareholders pursuant to
