ex10_5.htm


    
      

    

    Exhibit
10.5

     

    MUELLER
INDUSTRIES, INC.

    AMENDMENT
NO. 4 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT

     

    This
Fourth 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 Harvey
Karp (the “Employee”) is entered
into as of this 2nd day of December, 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 further 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):

    


    §           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, such bonus to be paid in the normal course at the time other executive
bonuses are normally paid, 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 for the remainder of the Employment Period, including any increases in
such monthly cost which may occur from the date of termination until the end of
the Employment Period.  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 for the remainder of the Employment Period,
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(g)(iii) of the Employment Agreement shall be amended in its
entirety to read as follows:

     

    “Change
in Control,” as used in Section 4(g) 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 7(b) of the
Employment Agreement shall be amended in its entirety to read as
follows:

     

    “Any
Gross-Up Payment, determined pursuant to this Section 7, 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 in
Connection with Gross-Up.  The following shall be added after
the fourth sentence of Section 7(c) 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.”

    


    §           Notices.  Section
5(b) of the Employment Agreement shall be amended in its entirety to read as
follows:

     

    “if to
the Employer at the address shown at the beginning of this Agreement, attention
of the Board of Directors, with copies to the Employer at the same address,
Attention:  General Counsel, and to Willkie Farr & Gallagher LLP,
787 Seventh Avenue, new York, New York, 10019, Attention:  Serge
Benchetrit, Esq., or to such other person(s) or address(es) as such persons or
the Employer shall have furnished to the Executive in writing.”

    To the
extent not amended hereby, the Employment Agreement shall continue with full
force and effect in accordance with its terms.

     

     

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

    


     

    
      	 
      	
              EMPLOYEE

            
	 
      	
              /S/ Harvey
      Karp

            
	 
      	
              Harvey
      Karp

            
	 
      	 
      
	 
      	
              THE
      COMPANY

            
	 
      	
              /S/
      Gregory L. Christopher

            
	 
      	
              By:
      Gregory L. Christopher

            
	 
      	
              Title:
      Chief Executive Officer