AMENDMENT
AMENDMENT, effective as of August 10, 1995, to EMPLOYMENT AGREEMENT by
and between MUELLER INDUSTRIES, INC., a Delaware corporation having its
principle address at 2959 North Rock Road, Wichita, Kansas 67226 ( the
"Employer") and WILLIAM D. O'HAGAN, an individual residing at 1104 North
Linden Circle, Wichita, Kansas 67206 (the "Executive").
WITNESSETH:
WHEREAS, the parties desire to amend the Employment Agreement, dated as
of January 1, 1994, between Employer and Executive (the "Employment
Agreement"); the Employment Agreement, as amended effective as of August 10,
1995, being hereinafter called the "Agreement").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto covenant and agree as follows:
1. In section 1 of the Agreement the phrase "ending on December 31,
1996" is amended to read as follows: "ending on December 31, 1999".
2. Section 3 a (i) of the Agreement shall be revised to read as
follows: " a base salary for the first calendar year at a rate of $375,000.00
per annum to be paid in equal installments in accordance with normal payroll
practices of the Employer but not less frequently than monthly, provided that
in each subsequent calendar year or part thereof during which the Executive is
employed commencing in 1996, Executive's base salary shall be adjusted upward
annually from Executive's 1995 base salary in relation to increases granted to
other key executives (the "Base Salary");".
3. Section 3 a of the Agreement shall be amended by adding the
following clause iv to the end of Section 3a:
"iv. an option (the "Second Option") to acquire a total of fifty-five
thousand (55,000) shares of common stock of the Employer, of which eleven
thousand five hundred (11,500) shares has been granted pursuant to the 1991
Incentive Stock Option Plan, and forty-three thousand five hundred (43,500)
shares has been granted pursuant to the 1994 Stock Option Plan by the
Compensation Committee, such option to be in the form and subject to the terms
and conditions expressed in Exhibit A-1 attached hereto.
4. Section 4 c (i) of the Agreement shall be amended by changing the
word "1996" in the third and fifth line to "1999".
5. Section 4 d of the Agreement shall be amended by changing the word
"1996" in the second line to "1999".
6. Section 4 of the Agreement shall be amended by adding the
following subsections f and g to the end of Section 4:
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"f. If concurrent with, or at any time within six months after a
"Change in Control" either the Employer terminates the Executive's employment
or the Executive voluntarily terminates his employment, then:
(i) the Employer shall pay the Executive as severance pay in a lump
sum within thirty (30) days following the termination, the following amounts,
which shall not be discounted to take into account present value:
(1) the Executive's full Base salary through the date of
termination at the rate in effect immediately prior to the
termination date;
(2) in lieu of any further Base salary payments to Executive for
any period subsequent to the date of termination, an amount equal to
the period of (x) Executive's annual Base salary rate in effect
immediately prior to the date of termination, multiplied by (y) the
number of years (including partial years) then remaining in the
Term; and
(3) in lieu of any further bonus payments to Executive for any
period subsequently to the date of termination, an amount equal to
the product of (x) Executive's bonus for the immediately preceding
year, multiplied by (y) the number of years (treating any remaining
partial year as a full year) then remaining in the Term;
(ii) Employer shall, at Employer's expense, allow Executive to
continue to participate, for the number of years (including partial years)
then remaining in the Term, in all the Employer's employee benefits plans, to
the same extent and upon the same terms and conditions as the Executive
participated immediately prior to the termination, provided that Employee's
continued participation is permissible or otherwise practicable under the
general terms and provisions of such benefit plans; and
(iii) on the later of (x) the day the Executive notifies the
Employer he is terminating as a result of a Change in Control, and (y) ten
(10) days prior to the date the Executive's employment is terminated, all
remaining unvested options previously granted Executive shall become
exercisable on that date.
"Change in Control", as used in clause 4 f of the Agreement, is defined
to mean the occurrence of any of the following three events:
(i) a change in control of a nature that would be required to
be reported in response to any form or report to the Securities and
Exchange Commission or any stock exchange on which the Employer's
shares are listed which requires the reporting of a change in
control of the Employer;
(ii) when a "person", as such term is used in Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), is or becomes the "beneficial owner", as defined in
Rule 13d-3 under the Exchange Act, directly or indirectly, of 20%
or more of the voting power of the Employer's then outstanding
securities, other than (x) any person who is a beneficial owner of
more than 5% of Employer's Common Stock on August 10, 1995, (y)
"Exempted Persons" as defined in Section 1(a) of Employer's Rights
Agreement, dated as of November 10, 1994, or (z) mutual funds,
banks, investment advisors registered under the Investment Adviser
Act of 1940, as amended, and other institutional investors, which
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either (i)became 20% beneficial owners as a result of an acquisition
of Common Stock by the Employer which, by reducing the number of
such shares then outstanding, increases the proportionate number of
shares beneficially owned by such person to 20% or more of the
outstanding Common Stock, except that if such person, after such
share purchases by the Employer, becomes the beneficial owner of any
additional shares of Common Stock, then this exception shall not
apply and a Change in Control shall be deemed to occur on the date
such person becomes the beneficial owner of such additional shares,
or (ii) were exempted from the operation of this provision with the
prior approval of eighty percent of the Board of Directors of the
Employer; or
(iii) when the individual who, on August 10, 1995, constitute
the Board of Directors of Employer cease for any reason to
constitute at least a majority thereof, provided, however, that a
director who was not a director on August 10, 1995 shall be deemed
to have been a director at that date if such director was elected
by, or on the recommendation of or with the approval of, at least
sixty percent of the directors on August 10, 1995 (either directly
or by prior operation of this provision);
provided, however, that a Change in Control shall not be deemed to
occur until, as to clause (i), a change in control form or report is
actually filed, and as to clause (ii), a beneficial owner discloses
in a public filing that it has crossed the 20% threshold.
g. In no event may the Employer terminate the Executive's employment
hereunder upon less than thirty (30) days prior written notice."
7. Except as expressly amended by this Agreement, the remaining terms
and provisions of the Employment Agreement shall remain unchanged and continue
in full force and effect.
8. This Agreement may be executed in counterparts, each of which
shall be deemed an original but which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Amendment as of the date first above written.
MUELLER INDUSTRIES, INC.
By:/ s / Harvey L. Karp / s / William D. O'Hagan
Name: Harvey L. Karp William D. O'Hagan
Title: Chairman
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EXHIBIT A-1
1. Except as provided in Section 3 of this Exhibit A-1, the 11,500 shares
granted pursuant to the 1991 Incentive Stock Option Plan, would vest as
follows:
11,000 shares August 10, 1996
500 shares August 10, 1997
2. Except as provided in Section 3 of this Exhibit A-1, the 43,500 shares
granted pursuant to the 1994 Stock Option Plan, would vest as follows:
10,500 shares August 10, 1997
11,000 shares August 10, 1998
11,000 shares August 10, 1999
11,000 shares June 15, 2000
3. If Employer and Executive do not enter into a new employment agreement
prior to September 30, 1999, all remaining unvested options shall
become immediately exercisable on that date. The options shall also
vest earlier, if and to the extent provided for in Section 4 (f) of the
Employment Agreement.
4. Executive may exercise his options referenced in Section 1 of this
Exhibit A-1 by paying (i) cash or, at Executive's option, (ii)
executing a promissory note in favor of the Employer, in the form
attached as Exhibit 1 to the Agreement, and containing the following
terms: (i) the note would be secured by the stock, which could not
otherwise be sold, assigned, pledged, encumbered, transferred or
otherwise hypothecated by Executive as long as the note was
outstanding, provided, however, that Executive would be free to sell
any or all such shares so long as the Executive paid down the note in
an amount equal to the option price times the number of shares sold;
(ii) the note would be down in three years from the date of exercise of
the option; (iii) interest would be payable quarterly; (iv) the
interest rate would be fixed at the three year treasury rate in effect
when the options were exercised; and (v) the note would be prepayable,
at any time, in whole or in part without penalty.
5. If Executive elects to pay cash for his option referenced in Section 1
of this Exhibit A-1, the shares so acquired may immediately be sold,
assigned, pledged, encumbered, transferred or otherwise hypothecated by
Executive.
6. Options for the first 50,000 shares which vest shall be priced using
fair market value on the date of grant as determined under the 1991
Incentive Stock Option Plan and the 1994 Stock Option Plan, which grant
date was July 27, 1995.
7. Options for the last 5,000 shares, which vest on June 15, 2000, shall
be based using the fair market value on the date of grant as determined
under the 1994 Stock Option Plan, which grant date was August 10, 1995.