Mueller Industries, Inc.
Deferred Compensation Plan
Amendment and Restatement
Effective December 1, 2000
Purpose
The purpose of this Plan is to provide specified benefits to a select group
of management or highly compensated employees who contribute materially to
the continued growth, development and future business success of MUELLER
INDUSTRIES, INC., a Delaware corporation, and its subsidiaries.
ARTICLE 1
Definitions
For purposes hereof, unless otherwise clearly apparent from the context,
the following phrases or terms shall have the following indicated meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, his or
her Elective Deferral Account. This account shall be a bookkeeping
entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to or in
respect of a Participant pursuant to the Plan.
1.2 "Annual Bonus" shall mean any compensation, in addition to Base
Annual Salary, paid annually in respect of a Plan Year to a
Participant as an employee under any Employer's annual bonus and
incentive plans. An annual Bonus for a Plan Year may, but need not,
be paid during such Plan Year.
1.3 "Annual Deferral Amount" shall mean that portion of a Participant's
Base Annual Salary and/or Annual Bonus that a Participant elects to
have and is deferred, in accordance with Article 3, for any one Plan
Year.
1.4 "Base Annual Salary" shall mean the annual compensation (excluding
bonuses, commissions, overtime, incentive payments, non-monetary
awards, Directors Fees, and other fees) paid to a Participant for
services rendered to any Employer, before reduction for compensation
deferred pursuant to all qualified, non-qualified and Code Section
125 plans of any Employer.
1.5 "Beneficiary" shall mean one or more persons, trusts, estates or
other entities, designated in accordance with Article 9, that are
entitled to receive benefits under the Plan upon the death of a
Participant.
1.6 "Beneficiary Designation Form" shall mean the form established from
time to time by the Committee that a Participant completes, signs and
returns to the Committee to designate one or more Beneficiaries.
1.7 "Board" shall mean the Board of Directors of the Company.
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1.8 "Change in Control" shall mean the first to occur of any of the
following events:
(a) Any "person" (as that term is used in Section 13 and
14(d)(2) of the Securities Exchange Act of 1934 ("Exchange Act")),
after the date hereof becomes the beneficial owner (as that term
is used in Section 13(d) of the Exchange Act), directly or
indirectly, of 50 percent or more of the Company's capital stock
entitled to vote in the election of directors;
(b) During any period of two consecutive years, individuals
who at the beginning of such period constitute the Board cease for
any reason to constitute at least a majority thereof, unless the
election or the nomination for election by the Company's
shareholders of each new director was approved by a vote of at
least three-quarters of the directors still in office who were
directors at the beginning of the period;
(c) Any consolidation or merger of the Company, other than a
consolidation or merger of the Company in which the holders of the
common stock of the company immediately prior to the consolidation
or merger hold more than 50 percent of the common stock of the
surviving corporation immediately after the consolidation or
merger;
(d) The shareholders of the Company approve any plan or proposal
for the liquidation or dissolution of the Company; or
(e) Substantially all of the assets of the Company are sold or
otherwise transferred to parties that are not within a "controlled
group of corporations" (as defined in Section 1563 of the Code) in
which the Company is a member.
1.9 "Claimant" shall have the meaning set forth in Section 13.1.
1.10 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.11 "Committee" shall mean the administrative committee appointed to
manage and administer the Plan in accordance with its provisions
pursuant to Article 12.
1.12 "Company" shall mean MUELLER INDUSTRIES, INC., a Delaware
corporation.
1.13 "Deduction Limitation" shall mean the following described limitation
on the annual benefit that may be distributed pursuant to the
provisions of this Plan. The limitation shall be applied to
distributions under this Plan as set forth in this Plan. If the
Company determines in good faith prior to a Change in Control that
there is a reasonable likelihood that any compensation paid to a
Participant for a taxable year of the Company would not be deductible
by the Company solely by reason of the limitation under Code Section
162(m), then to the extent deemed necessary by the Company to ensure
that the entire amount of any distribution to the Participant
pursuant to this plan prior to the Change in Control is deductible,
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the Company may defer all or any portion of the distribution. Any
amounts deferred pursuant to this limitation shall continue to be
credited with interest in accordance with Section 3.6 below. The
amounts so deferred and interest thereon shall be distributed to the
Participant or his or her Beneficiary (in the event of the
Participant's death) at the earliest possible date, as determined by
the Company in good faith, on which the deductibility of compensation
paid or payable to the Participant for the taxable year of the
Company during which the distribution is made will not be limited by
Section 162(m), or if earlier, the effective date of a Change in
Control.
1.14 "Deferral Amount" shall mean the sum of all of a Participant's Annual
Deferral Amounts.
1.15 "Directors Fees" shall mean the annual cash fees paid by any
Employer, including retainer fees and meetings fees, as compensation
for serving on the Board of Directors of an Employer.
1.16 "Disability shall mean a period of disability during which a
Participant qualifies for benefits under the Participant's Employer's
long-term disability plan, or, if a Participant does not participate
in such a plan, a period of disability during which the Participant
would have qualified for benefits under such a plan had the
Participant been a participant therein, as determined in the sole and
absolute discretion of the Committee.
1.17 "Enrollment Form" shall mean the form established from time to time
by the Committee that a Participant completes, signs and returns to
the Committee to make an election under the Plan.
1.18 "Elective Deferral Account" shall mean the sum of (i) a Participant's
Deferral Amount, plus (ii) earnings based on the Participant's
investment elections, net of all distributions from such account.
This account shall be a bookkeeping entry only and shall be utilized
solely as a device for the measurement and determination of the
amounts to be paid to the participant pursuant to the Plan.
1.19 "Employer" shall mean the Company and/or any of its subsidiaries that
have been selected by the Board to participate in the Plan.
1.20 "Moody's Corporate Bond Rate" shall mean the arithmetic average of
yields of representative bonds, including industrials, public
utilities, Aaa, Aa, A and Baa bonds, published by Moody's Investors
Service, Inc. or any successor to that service.
1.21 "Participant" shall mean any employee (i) who is selected to
participate in the Plan, (ii) who elects to participate in the Plan,
(iii) who signs an Enrollment Form and a Beneficiary Designation
Form, (iv) whose signed Enrollment Form and Beneficiary Designation
Form are accepted by the Committee, (v) who commences participation
in the Plan, and (vi) whose Plan participation and eligibility have
not terminated.
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1.22 "Plan" shall mean the Company's Deferred Compensation Plan, which
shall be evidenced by this instrument, as may be amended from time to
time.
1.23 "Plan Year" shall be the calendar year, starting with 1996.
1.24 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.25 "Retirement," "Retire," Retires," or "Retired" shall mean severance
from employment or service with all Employers for any reason other
than a leave of absence on or after the attainment of (a) age fifty
(50) and the completion of ten (10) Years of Service, (b) age fifty-
five (55) and the completion of five (5) Years of Service, (c) age
sixty-five (65), whichever is earliest.
1.26 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.27 "Short-Term Payout" shall mean the payout set forth in Section 4.1
1.28 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.29 "Termination of employment" shall mean the ceasing of employment with
all Employers, voluntarily or involuntarily, for any reason other
than Retirement, death or an authorized leave of absence.
1.30 "Trust" shall mean the trust established pursuant to that certain
Trust Agreement, dated as of January 1, 1996, between the Company and
the trustee named therein, as amended from time to time.
1.31 "Withdrawal Amount" shall mean all of a Participant's Account Balance
calculated as if such Participant were receiving a lump sum
Termination Benefit, less a penalty equal to 10 percent of the
Account Balance determined immediately prior to the date of the
Participant's election.
1.32 "Years of Service" shall mean the total number of years in which a
Participant has been employed by or in the service of an Employer.
For purposes of this definition only, a year of employment or service
shall be a 365 day period (or 366 day period in the case of a leap
year) that, for the first year of employment, commences on the
Participant's date of hire (or engagement) and that, for any
subsequent year, commences on an anniversary of that hiring date.
ARTICLE 2
Selection, Enrollment, Eligibility
2.1 Selection by Committee. Participation in the Plan shall be limited
to employees of an Employer who are part of a select group of
management or highly compensated employees. From the foregoing, the
Committee shall select, in its sole and absolute discretion,
employees to participate in the Plan.
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2.2 Enrollment Requirements. As a condition to participation, each
selected employee shall complete, execute and return to the Committee
within 30 days of selection for participation, an Enrollment Form and
a Beneficiary Designation Form. In addition, the Committee shall
establish from time to time such other enrollment requirements as it
determines in its sole and absolute discretion are necessary.
2.3 Eligibility; Commencement of Participation. An employee selected to
participate herein shall commence participation on the first day of
the Plan Year following the employee's completion of all enrollment
requirements set forth herein and required by the Committee,
including returning all required documents to the Committee and the
Committee's acceptance of all submitted documents. Under no
circumstances may participation commence in the middle of a Plan
Year.
ARTICLE 3
Deferrals, Earnings, and Distributions
3.1 Minimum Deferral. For each Plan Year, a Participant may elect to
defer Base Annual Salary and/or Annual Bonus payable in such Plan
Year. If no election is made, the amount deferred shall be zero.
3.2 Maximum Deferral. For each Plan Year, a Participant may elect to
defer Base Annual Salary and/or Annual Bonus up to the following
maximum amounts for each deferral elected:
Deferral Maximum Amount
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Base Annual Salary 100%
Annual Bonus 100%
3.3 Election to Defer; Effect of Enrollment Form. In connection with a
Participant's commencement of participation in the Plan, the
Participant shall make a deferral election by delivering to the
Committee a completed and signed Enrollment Form, which election and
form must be accepted by the Committee for a valid election to exist.
For each succeeding Plan Year, a new Enrollment Form for that Plan
Year must be delivered to the Committee, in accordance with its rules
and procedures, before the end of the Plan Year preceding the Plan
Year for which the election is made. If no Enrollment Form is timely
delivered for a Plan Year, no Annual Deferral Amount shall be
withheld for that Plan Year.
3.4 Withholding of Deferral Amounts. For each Plan Year, the Base Annual
Salary portion of the Annual Deferral Amount shall be withheld each
payroll period in equal amounts from the Participant's Base Annual
Salary. The Annual Bonus portion of the Annual Deferral Amount shall
be withheld at the time the Annual Bonus is or otherwise would be
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paid to the Participant. Each amount so withheld shall be credited
to the Participant's Elective Deferral Account. A Participant shall
at all times have a fully vested and nonforfeitable interest in his
or her Elective Deferral Account.
3.5 Earnings Prior to Distribution. Prior to any distributions of
benefits under Articles 4, 5, 6, or 7, earnings shall be credited to
a Participant's Account Balance, based on the actual performance of
the investments selected by said Participant. In the event of
Retirement, death, or a Termination of Employment, earnings will be
credited to the participant's Account Balance under this Section 3.5
to the end of the month in which such event occurs. If a
distribution is made under this plan, the Account Balance shall be
reduced as of the first day of the month in which the distribution is
made.
3.6 Installment Distributions. In the event a benefit is paid in
installments under articles 5, 6, or 7, earnings shall be credited
daily on the undistributed portion of the Participant's Account
Balance. The Participant shall receive installment distributions as
follows:
(a) Beginning with the month following the month during which the
participant Retires, Dies, or experiences a Termination of
Employment, and each month thereafter until the Participant's
Account Balance is paid in full but not to exceed the number of
months elected, the participant will receive a payment equal to
the participant's Account Balance on the first day of the month
divided by the number of months remaining in the period elected by
the Participant.
(b) Notwithstanding the above, the Participant may elect a level
payment for a period not to exceed the following based on the
number of months elected:
Number of Months Elected Months of Level Payments Allowed
------------------------ --------------------------------
60 months (5 years) 24 months
120 months (10 years) 36 months
180 months (15 years) 60 months
The level payment shall be determined by the Participant's Account
Balance at the beginning of the distribution period. Said level
payment will be determined by amortizing the Participant's Account
Balance as of the first day of the month during which distribution
commences, using an applied calculation factor to be determined by
the Committee from time to time but not to be less than the
Moody's Corporate Bond Rate in effect for October (as published in
the immediately following November) of the year preceding
commencement of the distribution.
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Beginning with the month following the end of the period of level
payments, if elected by the participant pursuant to this Section
3.6(b), the method of determining subsequent months' distributions
will be in accordance with Section 3.6(a), and the Participant's
Account Balance shall be reflective of the actual existing Account
Balance beginning with commencement of installment distributions
and as determined by the actual experience of the investments as
selected by the participant from time to time.
3.7 FICA Taxes. For each Plan Year in which an Annual Deferral Amount is
being withheld, the Participant's Employer(s) shall ratably withhold
from that portion of the Participant's Base Annual Salary and/or
Annual Bonus that is not being deferred, the Participant's share of
FICA and Medicare taxes on deferred amounts. If necessary, the
Annual Deferral Amount shall be reduced (a) in order to meet any
group benefit or similar commitment and/or applicable state
withholding taxes to be paid out of the Participant's Based Annual
Salary and/or Annual Bonus, and (b) in order to comply with this
Section.
ARTICLE 4
Short-Term Payout; Withdrawal Election
4.1 Short-Term Payout. Subject to the Deduction Limitation, in
connection with each election to defer an Annual Deferral Amount, a
Participant may elect to receive a future "Short-Term Payout" from
the Plan with respect to that Annual Deferral Amount. The Short-Term
Payout shall be a lump sum payment in an amount that is equal to the
Annual Deferral Amount plus interest credited on that amount based on
the performance of the investments selected by said Participant.
Subject to the other terms and conditions of this Plan, each Short-
Term Payout elected shall be paid within 60 days of the first day of
the elected Plan Year that is 3 or more years after the first day of
the Plan Year in which the Annual Deferral Amount is actually
deferred. Notwithstanding the foregoing, should an event occur that
triggers a benefit under Article 5, 6, or 7, any Annual Deferral
Amount, plus interest thereon, that is subject to a Short-Term Payout
election under this Section 4.1 shall not be paid in accordance with
Section 4.1, but shall be paid in accordance with the other
applicable Article.
4.2 Withdrawal Election. A Participant may elect, at any time, to
withdraw the Withdrawal Amount, as defined in Section 1.31. No
partial withdrawals shall be allowed. The Participant shall make
this election by giving the Committee advance written notice of the
election in the form determined from time to time by the Committee.
Once the Withdrawal Amount is paid, the Participant shall be
suspended from eligibility to participate in the Plan until the
beginning of the third Plan Year following the date such amount is
paid, and the Participant may only resume participation at such time
or a later Plan Year by completing again the enrollment requirements
specified in Article 2 hereof.
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ARTICLE 5
Retirement Benefit
5.1 Retirement Benefit. Subject to the Deduction Limitation, a
Participant who retires shall receive, as a Retirement Benefit, his
or her Account Balance with interest credited in accordance with
Section 3.5 hereof.
5.2 Payment of Retirement Benefits. A Participant, in connection with
his or her commencement of participation in the Plan, shall elect on
an Enrollment Form to receive the Retirement Benefit in a lump sum or
in monthly payments over a period of 60, 120 or 180 months (as
determined in accordance with Section 3.6 above). If no election is
made payments shall be made over a 180 month period. The Participant
may change this election to an allowable alternative payout period by
submitting a new Enrollment Form to the Committee, provided that any
such Enrollment Form is submitted at least two (2) years prior to the
Participant's Retirement. The Enrollment Form most recently accepted
by the Committee, which meets the requirement of the preceding
sentence, shall govern the payout of the Retirement Benefit. The
lump sum payment shall be made, or installment payments shall
commence, no later than 60 days from the date the Participant
Retires.
5.3 Death Prior to Completion of Retirement Benefits. If a Participant
dies after Retirement but before the Retirement Benefit is paid in
full, the Participant's unpaid Retirement Benefit payments shall
continue and shall be paid to the Participant's Beneficiary (a) over
the remaining number of months and in the same amounts as that
benefit would have been paid to the Participant had the participant
survived, or (b) in a lump sum, if requested by the beneficiary and
allowed at the sole and absolute discretion of the Committee. The
lump sum payment will be the Participant's Account Balance at the
time of his or her death, or, if later, at the time the lump sum
payment is actually made.
ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction
Limitation, if a Participant dies before he or she Retires or has a
Termination of Employment, the Participant's Beneficiary shall
receive a Pre-Retirement Survivor Benefit equal to the participant's
Account Balance with interest credited in accordance with Section 3.5
hereof.
6.2 Payment of Pre-Retirement Survivor Benefits. The Pre-Retirement
Survivor Benefit shall be paid in the payment period previously
elected by the Participant for the payment of the Retirement Benefit,
or, if no election was made, monthly for 15 years. However, the Pre-
Retirement Survivor Benefit payment may be made as a lump sum at the
request of the Beneficiary and at the sole and absolute discretion of
the Committee. The first (or only payment, if made in lump sum)
shall be made within 60 days of the Committee's receiving proof of
the Participant's death.
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ARTICLE 7
Termination Benefit
7.1 Termination Benefits. Subject to the Deduction Limitation, if a
Participant experiences a Termination of Employment prior to his or
her Retirement, the Participant shall receive a Termination Benefit,
which shall be equal to the Participant's Account Balance with
interest credited in accordance with Section 3.5 hereof.
7.2 Payment of Termination Benefit. A Participant, in connection with
his or her commencement of participation in the Plan, shall elect on
an Enrollment Form to receive the Termination Benefit in a lump sum
or in monthly payments over a period of 60, 120, or 180 months (as
determined in accordance with Section 3.6 above). The Participant
may change the selection to an allowable alternative pay out period
by submitting a new Enrollment Form to the Committee, provided that
any such Enrollment Form is submitted at least two (2) years prior to
the Participant's Termination of Employment. The Enrollment Form
most recently accepted by the Committee, which meets the requirement
of the preceding sentence, shall govern the payout of the Termination
Benefit. The lump sum payment shall be made, or installment payments
shall commence, no later than 60 days from the date of the
Participant's Termination of Employment.
7.3 Death Prior to Completion of Termination Benefits. If a Participant
dies after Termination of Employment but before the Termination
Benefit is paid in full, the Participant's unpaid termination benefit
payments shall continue and shall be paid to the Participant's
beneficiary (a) over the remaining number of months and in the same
amounts as the benefit would have been paid to the Participant had
the Participant survived, or (b) in a lump sum, if requested by the
beneficiary and allowed at the sole and absolute discretion of the
committee. The lump sum payment will be the Participant's Account
Balance at the time of his or her death, or, if later, at the time
the lump sum payment is actually made.
ARTICLE 8
Disability Waiver and Benefit
8.1 Disability Waiver.
(a) Eligibility. By participating in the Plan, all Participants
are eligible for this waiver.
(b) Waiver of Deferral; Credit for Plan Year of Disability. A
Participant who is determined by the Committee to be suffering
from a Disability shall be excused from fulfilling that portion of
the Annual Deferral Amount commitment that would otherwise have
been withheld from a participant's Base Annual Salary and/or
Annual Bonus for the Plan Year during which the Participant first
suffers a Disability. During the period of Disability, the
Participant shall not be allowed to make any additional deferral
elections.
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(c) Return to Work. If a Participant returns to employment with an
Employer after a Disability ceases, the Participant may elect to
defer an Annual Deferral Amount for the Plan Year following his or
her return to employment or service and for every Plan Year
thereafter while a Participant in the Plan; provided such deferral
elections are otherwise allowed and an Election Form is delivered
to and accepted by the Committee for each such election in
accordance with Section 3.3 above.
8.2 Benefit Eligibility. A Participant suffering a Disability shall, for
benefit purposes under this Plan, but subject to Section 8.1 above,
continue to be considered to be employed and shall be eligible for
the benefits provided for in Articles 4, 5, 6, and 7 in accordance
with the provisions of those Articles. Employee shall be considered
an active employee for purposes of Section 1.32 hereof during a
Disability. Notwithstanding the above, the Committee shall have the
right, in its sole and absolute discretion and for purposes of this
Plan only, to terminate a Participant's employment at any time after
such Participant is determined to be permanently and totally disabled
under the Participant's employer's long-term disability plan or would
have been determined to be permanently and totally disabled had he or
she participated in such plan. In such case, the participant's
Termination Benefit under Article 7 hereof shall, if payable in
installments, be computed in accordance with Section 3.6 hereof.
ARTICLE 9
Beneficiary Designation
9.1 Beneficiary. Each Participant shall have the right, at any time to
designate his or her Beneficiary (both primary as well as contingent)
to receive any benefits payable under the Plan to a Beneficiary upon
the death of a Participant. The Beneficiary designated under this
Plan may be the same as or different from the Beneficiary designation
under any other plan of an Employer in which the Participant
participates.
9.2 Beneficiary Designation; Change; Spousal Consent. A Participant
shall designate his or her Beneficiary by completing and signing the
Beneficiary Designation Form, and returning it to the committee or
its designated agent. A Participant shall have the right to change a
Beneficiary by completing, signing and otherwise complying with the
terms of the Beneficiary Designation form and the Committee's rules
and procedures, as in effect from time to time. Where required by
law or by the Committee, in its sole and absolute discretion, if the
Participant names someone other than his or her spouse as a
Beneficiary, a spousal consent, in the form designated by the
Committee, must be signed by the Participant's spouse and returned to
the Committee. Upon the acceptance by the Committee of a new
Beneficiary Designation Form, all Beneficiary designations previously
filed shall be canceled. The Committee shall be entitled to rely on
the last Beneficiary Designation Form filed by the Participant and
accepted by the Committee prior to his or her death.
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9.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received, accepted and
acknowledged in writing by the Committee or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2, and 9.3 above, or, if
all designated Beneficiaries predecease the Participant, then the
Participant's designated Beneficiary shall be his or her surviving
spouse. If the Participant has no surviving spouse, the benefits
remaining under the Plan shall be paid to the Participant's estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the
proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the right, exercisable in its sole and absolute
discretion, to cause the participant's Employer to withhold such
payments until this matter is resolved to the Committee's
satisfaction.
9.6 Discharge of Obligations. The payment of benefits under the Plan to
a Beneficiary shall fully and completely discharge all Employers and
the Committee from all Further obligations under this Plan with
respect to the Participant, and that Participant's Plan Agreement
shall terminate upon such full payment of benefits.
ARTICLE 10
Leave of Absence
10.1 Paid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take a paid leave of absence
from the employment of the Employer, the Participant shall continue
to be considered actively employed by the Employer for purposes of
Section 1.32 hereof and the Annual Deferral Amount shall continue to
be withheld during such paid leave of absence in accordance with
Section 3.3.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of
absence from the employment of the Employer, the Participant shall
continue to be considered actively employed by the Employer for
purposes of Section 1.32 hereof, but the Participant shall be excused
from making deferrals until the earlier of the date the leave of
absence expires or the date the Participant returns to paid
employment status. Upon such expiration or return, deferrals shall
resume for the remaining portion of the Plan Year in which the
expiration or return occurs, based on the deferral election, if any,
made for that Plan Year. If no election was made for that Plan Year,
no deferral shall be withheld.
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ARTICLE 11
Termination, Amendment or Modification
11.1 Termination. Any Employer reserves the right to terminate the Plan
at any time with respect to Participants employed by the Employer.
Upon the termination of the Plan, the Participant's Account Balance
shall be paid out as though the Participant had experienced a
Termination of Employment on the date of Plan termination, or, if
Plan termination occurs after the date upon which the Participant was
eligible to Retire, the Participant had Retired on the date of Plan
termination, or, if Plan termination occurs after the Participant
Retired or had a Termination of Employment and commenced (but not
completed) distribution hereunder, benefits shall continue to the
Participant pursuant to the terms hereof without regard to the Plan
termination.
11.2 Amendment. Any Employer may, at any time, amend or modify the Plan
in whole or in part with respect to that Employer; provided, however,
that no amendment or modification shall be effective to decrease a
Participant's Account Balance, calculated as though the Participant
had experienced a Termination of Employment as of the effective date
of the amendment or modification, or, if the amendment or
modification occurs after the date upon which the Participant was
eligible to Retire, the Participant had Retired as of the effective
date of the amendment or modification. In addition, no amendment or
modification of the Plan shall affect the right of any Participant or
Beneficiary who was eligible to or did Retire or who did have a
Termination of Employment on or before the effective date of such
amendment or modification to received benefits over the time period
he or she elected in accordance with Section 5.2 hereof.
11.3 Interest Rate in the Event of a Change in Control and Interest. In
connection with a Termination of employment or a Plan termination,
amendment or modification under Sections 11.1 and 11.2 above,
occurring within two (2) years following a Change in Control, the
interest rate for an installment payment shall in all events be
determined in accordance with Section 3.6 hereof.
11.4 Effect of Payment. The full payment of the applicable benefit under
Articles 4, 5, 6, or 7 of the Plan shall completely discharge all
obligations to a Participant under this Plan and the Participant's
Plan agreement shall terminate.
ARTICLE 12
Administration
12.1 Committee Duties. This Plan shall be administered by a Committee, to
be known as the Mueller Deferred Compensation Plan Committee, which
shall consist of individuals approved by the Board. The initial
members shall include the Chairman of the Board, and the Chief
Executive Officer and Chief Financial Officer of the Company.
Members of the Committee may be Participants under this Plan. The
Committee shall also have the discretion and authority to make,
amend, interpret, and enforce all appropriate rules and regulations
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for the administration of this Plan and decide or resolve any and all
questions including interpretations of this Plan, as may arise in
connection with the Plan. Any committee member must recuse himself
or herself on any matter of personal interest to such member that
comes before the Committee.
12.2 Agents. In the administration of this Plan, the Committee may, from
time to time, employ agents and delegate to them such administrative
duties as it sees fit and may from time to time consult with counsel
who may be counsel to any Employer.
12.3 Binding Effect of Decisions. The decision or action of the Committee
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the
rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the
Plan.
12.4 Indemnity of Committee. All Employers shall indemnify and hold
harmless the members of the Committee against any and all claims,
losses, damages, expenses or liabilities arising from any action or
failure to act with respect to this Plan to the fullest extent
permitted by applicable law.
12.5 Employer Information. To enable the Committee to perform its
functions, each Employer shall supply full and timely information to
the Committee on all matters relating to the compensation of its
Participants, the date and circumstances of the Retirement,
Disability, Death or Termination of Employment of its Participants,
and such other pertinent information as the Committee may reasonably
require.
ARTICLE 13
Claims Procedure
13.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below
as a "Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such
Claimant, from the Plan. If such a claim relates to the contents of
a notice received by the Claimant, the claim must be made within 60
days after such notice was received by the Claimant. All other
claims must be made within 180 days of the date on which the event
that caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
13.2 Notification of Decision. The Committee shall consider a Claimant's
claim within 60 days of the making of the claim, and shall notify the
Claimant in writing:
(a) That the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
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(b) That the Committee has reached a conclusion contrary, in whole
or in part, to the Claimant's requested determination, and such
notice must set forth in a manner calculated to be understood
by the Claimant:
(i) the specific reasons(s) for the denial of the claim, or
any part of it;
(ii) specific reference(s) to pertinent provisions of the Plan
upon which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is
necessary; and
(iv) an explanation of the claim review procedure set forth in
Section 13.3. below.
13.3 Review of Denied Claim. Within 60 days after receiving a notice from
the Committee that a claim has been denied, in whole or in part, a
Claimant (or the Claimant's duly authorized representative) may file
with the Committee a written request for a review of the denial of
the claim. Thereafter, but not later than 30 days after the review
procedure begins, the Claimant (or the Claimant's duly authorized
representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
13.4 Decision on Review. The Committee shall render its decision on
review promptly, and not later than 60 days after the filing of a
written request for review of the denial, unless a hearing is held or
other special circumstances require additional time, in which case
the Committee's decision must be rendered within 120 days after such
date. Such decision must be written in a manner calculated to be
understood by the Claimant, and it must contain.
(a) Specific reasons for the decision;
(b) Specific reference(s) to the pertinent Plan provisions upon
which the decision was based; and
(c) Such other matters as the Committee deems relevant.
13.5 Legal Action. A Claimant's compliance with the foregoing provisions
of the Article 13 is a mandatory prerequisite to a Claimant's right
to commence any legal action with respect to any claim for benefits
under this Plan.
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ARTICLE 14
Trust
14.1 Establishment of Trust. The Company shall establish the Trust.
While no Employer guarantees the level of funding, it is the
Employers' intention that sufficient assets be transferred to the
Trust so that the value of the Trust at all times equals or exceeds
the aggregate value of Account Balances.
14.2 Interrelationship of the Plan and the Trust. The provisions of the
Plan shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust
shall govern the rights of the participant and the creditors of the
Employers to the assets transferred to the Trust. The Employers
shall at all times remain liable to carry out their obligations under
the Plan. The Employers' obligations under the Plan may be satisfied
with Trust assets distributed pursuant to the terms of the Trust.
ARTICLE 15
Miscellaneous
15.1 Unsecured General Creditor. Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable right,
interest or claim in any specific property or assets of an Employer.
Any and all of an Employer's assets shall be, and remain, the general
unpledged and unrestricted assets of the Employer. An Employer's
obligation under the Plan shall be merely that of an unfunded and
unsecured promise to pay money in the future.
15.2 Employer's Liability. An Employer's liability for the payment of
benefits shall be defined only by the Plan. An Employer shall have
no obligation to a Participant under the Plan except as expressly
provided in the Plan.
15.3 Nonassignability. Neither a Participant nor any other person shall
have any right to commute, sell, assign, transfer, pledge,
anticipate, mortgage, or otherwise encumber, transfer, hypothecate or
convey in advance of actual receipt, the amounts, if any payable
hereunder, or any part thereof, which are, and all rights to which
are expressly declared to be unassignable and non- transferable. No
part of the amounts payable shall, prior to actual payment, be
subject to seizure or sequestration for the payment of any debts,
judgements, alimony or separate maintenance owed by a Participant or
any other person, nor be transferable by operation of law in the
event of a Participant's or any other person's bankruptcy or
insolvency.
15.4 Coordination with Other Benefits. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in
addition to any other benefits available to such Participant under
any other plan or program for employees of the Participant's
Employer. The Plan shall supplement and shall not supersede, modify
or amend any other such plan or program except as may otherwise be
expressly provided.
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15.5 Not a Contract of Employment. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between
any Employer and the Participant. Such employment is hereby
acknowledged to be an "at will" employment relationship that can be
terminated at any time for any reason, with or without cause, unless
expressly provided in a written employment agreement. Nothing in
this Plan shall be deemed to give a Participant the right to be
retained in the service of any Employer, either as an employee or a
director, or to interfere with the right of any Employer to
discipline or discharge the Participant at any time.
15.6 Furnishing Information. A Participant or his or her Beneficiary
will cooperate with the Committee by furnishing any and all
information requested by the Committee and take such other actions as
may be reasonably requested in order to facilitate the administration
of the Plan and the payments of benefits hereunder, including but not
limited to taking such physical examinations as the Committee may
deem necessary.
15.7 Terms. Whenever any words are used herein in the singular or in
the plural, they shall be construed as though they were used in the
plural or the singular, as the case may be in all cases where they
would so apply. The masculine pronoun shall be deemed to include the
feminine and vice versa, unless the context clearly indicates
otherwise.
15.8 Captions. The captions of the articles, sections and paragraphs of
this Plan are for convenience only and shall not control or affect
the meaning or construction of any of its provisions.
15.9 Governing Law. Subject to ERISA, the provisions of this Plan shall
be construed and interpreted according to the laws of the State of
Tennessee.
15.10 Notice. Any notice or filing required or permitted to be given to
the Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to:
Director of Human Resources
MUELLER INDUSTRIES, INC.
8285 Tournament Drive, Suite 150
Memphis, TN 38125
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification. The committee may from
time to time change its address for the purpose of notice or filing
required or permitted to be given to the Committee under this Plan by
giving written notice to the Participants specifying a new address.
Any such notice or filing required or permitted to be given to a
Participant under this Plan shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of the
Participant.
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15.11 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns
and the Participant, the Participant's Beneficiaries, and their
permitted successors and assigns.
15.12 Spouse's Interest. The interest in the benefits hereunder of a
spouse of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable
by such spouse in any manner, including but not limited to such
spouse's will, nor shall such interest pass under the laws of
intestate succession.
15.13 Validity. In case any provision of this Plan shall be illegal or
invalid for any reason, said illegality or invalidity shall not
affect the remaining parts hereof, but this Plan shall be construed
and enforced as if such illegal or invalid provision had never been
inserted.
15.14 Incompetent. If the Committee determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of
that person's property, the Committee may direct payment of such
benefit to the guardian, legal representative or person having the
care and custody of such minor, incompetent or incapable person. The
Committee may require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate prior to distribution of the
benefit. Any payment of a benefit shall be a payment for the account
of the Participant and the participant's Beneficiary, as the case may
be, and shall be a complete discharge of any liability under the Plan
for such payment amount.
15.15 Distribution in the Event of Taxation. If, for any reason, all or
any portion of a Participant's benefit under this Plan becomes
taxable to the Participant prior to receipt, a participant may
petition the Committee for a distribution of assets sufficient to
meet the participant's tax liability (including additions to tax,
penalties and interest). Upon the grant of such a petition, which
grant shall not be unreasonably withheld, a participant's employer
shall distribute to the participant immediately available funds in an
amount equal to that Participant's federal, state and local tax
liability associated with such taxation (which amount shall not
exceed the Participant's vested Account Balance), which liability
shall be measured by using that Participant's then current highest
federal, state and local marginal tax rate, plus the rates or amounts
for the applicable additions to tax, penalties and interest. If the
petition is granted, the tax liability distribution shall be made
within 90 days of the date when the participant's petition is
granted. Such a distribution shall reduce the benefits to be paid
under this Plan.
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15.16 Legal Fees to Enforce Rights After Change in Control. The Company is
aware that upon the occurrence of a Change in Control, the Board
(which might then be composed of new members) or a shareholder of the
Company, or of any successor corporation might then cause or attempt
to cause the Company or such successor to refuse to comply with its
obligations under the Plan and might cause or attempt to cause the
Company to institute, or may institute, litigation seeking to deny
Participants the benefits intended under the Plan. In these
circumstances, the purpose of the Plan could be frustrated.
Accordingly, if, following a Change in Control, it should appear to
any Participant that the Company or the Committee has failed to
comply with any of its obligations under the Plan or any agreement
thereunder or, if the Company or any other person takes any action to
declare the Plan void or unenforceable or institutes any litigation
or other legal action designed to deny, diminish or to recover from
any Participant or Beneficiary the benefits intended to be provided,
then the Company irrevocably authorizes such person to retain counsel
of his or her choice at the expense of the Company to represent such
person in connection with the initiation or defense of any litigation
or other legal action, whether by or against the Company, the
Committee, or any director, officer, shareholder or other person
affiliated with the Company or any successor thereto in any
jurisdiction
IN WITNESS WHEREOF, the Company has signed this amended and restated Plan
document as of December 1, 2000.
MUELLER INDUSTRIES, INC.
A Delaware Corporation
By:/S/John P. Fonzo
Its:Vice President
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