ex10_11.htm


    
      
        

      
Exhibit 10.11

    MUELLER
INDUSTRIES, INC.

    AMENDMENT
NO. 3 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT

     

    This
Third Amendment (this “Amendment”) to the
Amended and Restated Employment Agreement (the “Employment
Agreement”), dated September 17, 1997, by and between Mueller Industries,
Inc. (the “Company”) and William
D. O’Hagan (the “Employee”) is entered
into as of this 26th day of November, 2008, to be effective as of the date
hereof.

     

    WHEREAS,
the Company and the Employee are parties to the Employment Agreement;
and

     

    WHEREAS,
each of the Company and the Employee wish to amend the Employment Agreement in
order to comply with the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”).

     

    NOW,
THEREFORE, the Employment Agreement is hereby amended as follows (with terms not
otherwise defined in this Amendment having the same meaning as set forth in the
Employment Agreement):

     

    §           Employment
Period.  Section 1 of the Employment Agreement shall be amended
in its entirety to read as follows:

     

    “The
Employer agrees to employ the Executive, and the Executive hereby accepts such
employment, for a term commencing on the date hereof and ending on March 31,
2009.  During the portion of the term commencing on the date hereof
and ending on December 31, 2008 (the “Employment Period”), the Executive shall
serve as President and Chief Executive Officer of the
Employer.  During the portion of the term commencing on January 1,
2009 and ending on March 31, 2009 (the “Transition Period”), the Executive shall
remain employed by the Employer as a special advisor to the Chief Executive
Officer of the Company, and shall provide such services as may be reasonably
requested by the Employer, but shall no longer serve as the President and Chief
Executive Officer of the Employer.”

     

    §           Compensation.  A
new Section 3(g) shall be added to the Employment Agreement, which shall read as
follows:

     

    “As
compensation for the Executive’s services during the Transition Period, the
Employer shall pay the Executive an amount equal to $1,000,000, payable in equal
installments in accordance with the Employer’s normal payroll
practices.  In addition, during the Transition Period, the Executive
shall participate in all disability and health plans and programs and all fringe
benefit plans maintained by or on behalf of the Employer and in which senior
executives of the Employer are entitled to participate.  The
compensation and benefits described in this Section 3(g) shall be the sole
compensation and benefits to which the Executive shall be entitled during the
Transition Period.”

     

    §           Timing of Bonus Payments
during Employment.  To the extent all or any portion of the
Bonus becomes earned and vested as a result of Employee’s continued service
through a specified date (e.g., December 31 of the year to which such Bonus
relates), such amount shall be paid at such time as otherwise provided in the
Employment Agreement, but in no event later than one day prior to the date that
is 21⁄2 months following of the last day of fiscal year in which such specified
date falls.

     

    §           Certain Payments Due on a
Termination of Employee’s Employment.  Notwithstanding anything
in the Employment Agreement to the contrary, the payment (or commencement of a
series of payments) under the Employment Agreement of any nonqualified deferred
compensation (within the meaning of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”)) that is subject to the permissible payment rules
of Section 409A of the Code (“Deferred Compensation”) and is made upon a
termination of employment shall be delayed until such time as Employee has also
undergone a “separation from service” as defined in Treas. Reg. § 1.409A-1(h),
at which time such nonqualified deferred compensation (calculated as of the date
of Employee’s termination of employment under the Employment Agreement) shall be
paid (or commence to be paid) to Employee on the schedule set forth in
Employment Agreement as if Employee had undergone such termination of employment
(under the same circumstances) on the date of his ultimate “separation from
service.”

     

    §           Severance Payments
Installments.  To the extent that the Employment Agreement
provides for any payments of Deferred Compensation to be made in installments,
each installment shall be deemed to be a separate payment pursuant to Treas.
Reg. § 1.409A-2(b)(2)(iii).

     

    §           Payment of Bonus Upon
Termination of Employee’s Employment.  Section 4(c)(i) of the
Employment Agreement shall be amended in its entirety to read as
follows:

     

    “the
Executive shall continue to receive (x) his then current Base Salary, payable in
accordance with Section 3 hereof as if his employment had continued for the
remainder of the Employment Period and (y) an annual bonus for each year
remaining in the Employment Period equal to the average Bonus for the three
calendar years immediately preceding the written notice, with the first such
bonus to be paid in the year following the year in which such termination
occurs, but in no event later than December 31 of such year, and each subsequent
bonus to be paid on a yearly basis thereafter, but in no event later than
December 31 of each such year.”

     

    §           Continuation of Benefits
Upon Termination of Employee’s Employment.  The third sentence
of Section 4(c) of the Employment Agreement shall be amended in its entirety to
read as follows:

     

    “Following
such termination, the Employer shall pay the Executive an amount equal to the
Executive’s monthly cost of continuation health, major medical, hospitalization
and dental insurance coverage under the Employer’s health plans pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1986, as amended, for each
month until and including the month that the Executive reaches age 65, including
any increases in such monthly cost which may occur from the date of termination
until the Executive reaches age 65.  Such amounts shall be paid on a
monthly basis until December 31 of the year in which such termination occurs,
and thereafter, on or after January 1 of each calendar year following the year
in which such termination occurs, but in no event later than December 31 of each
such calendar year.  In addition, the Executive will be entitled to
continue to participate in the Employer’s health, major medical, hospitalization
and dental insurance plans as are generally made available to the other
executive officers of the Employer from time to time until he reaches age 65,
provided he bears the full cost of the premium amounts associated with such
continued participation.”

     

    §           Definition of Change in
Control.  The definition of “Change in Control” as set forth in
Section 4(h)(iii) of the Employment Agreement shall be amended in its entirety
to read as follows:

     

    “Change
in Control,” as used in Section 4(h) of the Agreement, is defined to mean the
occurrence of either of the following two events:  (i) when any
“person,” as such term is used in Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended, acquires ownership of the Employer’s
securities that, together with securities already held by such person,
constitute more than 50% of the total voting power of the Employer’s then
outstanding securities; provided, that if any one person is considered to own
more than 50% of the total voting power of the Employer’s securities, the
acquisition of additional securities by the same person will not be considered
to cause a Change in Control; or (ii) the date a majority of members of the
Employer’s Board is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
Employer’s Board of Directors before the date of the appointment or
election.”

     

    §           Expenses
Reimbursement. To the extent that any right to reimbursement of expenses
under the Employment Agreement constitutes Deferred Compensation, 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
Employee.

     

    §           280G
Gross-Up.  The fourth sentence of Section 6(b) of the
Employment Agreement shall be amended in its entirety to read as
follows:

     

    “Any
Gross-Up Payment, determined pursuant to this Section 6, shall be paid by the
Employer to the Executive within five days of the receipt of the Accounting
Firm’s determination, but in no event later than the end of the taxable year
next following the taxable year in which the Excise Tax is remitted to the
Internal Revenue Service.”

     

    §           Payment of Legal
Fees.  The following shall be added after the first sentence of
Section 6(c)(iv) of the Employment Agreement:

     

    “Any
costs and expenses to be paid by the Employer in connection with contesting any
such claim shall be paid no later than the last day of the taxable year
immediately following the taxable year in which such Excise Tax and income tax
are remitted to the taxing authority or where as a result of such proceedings or
litigation no such taxes are remitted, the end of the taxable year immediately
following the taxable year in which there is a final non-appealable settlement
or other resolution of the claim.”

     

    §           Delay of Certain Payments
for Specified Employees.  Notwithstanding anything herein to
the contrary, any payment of Deferred Compensation that is otherwise required to
be made under the Employment Agreement to the Employee upon Employee’s
separation from service shall be delayed for such period of time as may be
necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the Code (the
“Delay Period”).  On the first business day following the expiration
of the Delay Period, Employee shall be paid, in a single cash lump sum, an
amount equal to the aggregate amount of all payments delayed pursuant to the
preceding sentence and any remaining payments not so delayed shall continue to
be paid pursuant to the payment schedule set forth herein.

     

    §           Notices.  In
Section 5 of the Employment Agreement, the name “Robert B. Hodes” shall be
replaced by “Serge Benchetrit.”

     

    To the
extent not amended hereby, the Employment Agreement shall continue with full
force and effect in accordance with its terms.  The other provisions
and cross-references of the Employment Agreement shall be renumbered accordingly
as a consequence of the additions and deletions described herein.

     

    IN
WITNESS WHEREOF, this Amendment has been entered into as of the date first set
forth above.

     

    


     

    


    
      	 
      	
              ESTATE
      OF WILLIAM D. O’HAGAN

            
	 
      	
              By:
      /S/ Geoffrey L. Jones

            
	 
      	
              Geoffrey
      L. Jones, as Co-Personal Representative of the Estate of William
      O’Hagan

            
	 
      	 
      
	 
      	
              THE
      COMPANY

            
	 
      	
              /S/
      Harvey L. Karp

            
	 
      	
              By:
      Harvey Karp

            
	 
      	
              Title:
      Chairman