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Mueller Industries, Inc.
Deferred Compensation Plan
Amendment and Restatement
Effective January 1, 1997
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, the sum
of (i) his or her Elective Deferral Account plus (ii) his or her
Employer Matching Contribution 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 "Company Matching Contribution" shall mean any contribution made and
credited to Employer Matching Contribution Accounts by the Company in
accordance with Section 3.5 below.
1.14 "Crediting Rate" shall mean, for each Plan Year as selected by the
Participant on the Election Form for such year, a rate equal to (a) an
interest rate represented by the "Moody's Corporate Bond Rate" in
effect for October (as published in the immediately following November)
of the prior year or (b) the rate of return of any benchmark fund
selected by the Committee. For purposes of the foregoing, the "Moody's
Corporate Bond Rate" is an 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.
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1.15 "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, 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.
1.16 "Deferral Amount" shall mean the sum of all of a Participant's Annual
Deferral Amounts.
1.17 "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.
1.18 "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.
1.19 "Election 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.
1.20 "Elective Deferral Account" shall mean the sum of (i) a Participant's
Deferral Amount, plus (ii) interest thereon credited in accordance with
all the applicable interest crediting provisions of the Plan, 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.
1.21 "Employer" shall mean the Company and/or any of its subsidiaries that
have been selected by the Board to participate in the Plan.
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1.22 "Employer Matching Contribution Account" shall mean the sum of (i) a
Participant's share of Company Matching Contributions plus (ii)
interest thereon credited in accordance with the applicable interest
crediting provisions of the Plan, 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.
1.23 "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 a Plan Agreement, an Election Form and a Beneficiary
Designation Form, (iv) whose signed Plan Agreement, Election Form and
Beneficiary Designation Form are accepted by the Committee, (v) who
commences participation in the Plan, and (vi) whose Plan Agreement has
not terminated.
1.24 "Plan" shall mean the Company's Deferred Compensation Plan, which shall
be evidenced by this instrument and, with respect to each Participant,
by his or her Plan Agreement, as each may be amended from time to time.
1.25 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between one or more
Employers and a Participant. Each Plan Agreement executed by a
Participant shall provide for the entire benefit to which such
Participant is entitled to under the Plan, and shall specify the
Employer or Employers liable for the Participant's benefits hereunder
and the magnitude or extent of such liability. The Plan Agreement
bearing the latest date of acceptance by the Committee shall govern
such entitlement and each Employer's liability. Upon the complete
payment of a Participant's Account Balance, each individual's Plan
Agreement and his or her status as a Participant shall terminate.
1.26 "Plan Year" shall be the calendar year, starting with 1996.
1.27 "Preferred Rate" for a Plan Year shall be 120% of the Crediting Rate
for such year.
1.28 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.29 "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.
1.30 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.31 "Short-Term Payout" shall mean the payout set forth in Section 4.1.
1.32 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.33 "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.
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1.34 "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.
1.35 "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.
1.36 "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.
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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.
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 a Plan Agreement, an Election 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.
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ARTICLE 3
Deferral Commitments/Interest Crediting
3.1 Minimum Deferral. For each Plan Year, a Participant may elect to defer
Base Annual Salary and/or Annual Bonus paid in respect of such Plan Year
in the following minimum amounts for each deferral elected:
Deferral Minimum Amount
Base Annual Salary $2,000
Annual Bonus $2,000
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
Base Annual Salary 100%
Annual Bonus 100%
3.3 Election to Defer; Effect of Election 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 Election Form, which election and form must be
accepted by the Committee for a valid election to exist. For each
succeeding Plan Year, a new Election Form 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 Election 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 paid to
the Participant. Each amount so withheld shall be credited to the
Participant's Elective Deferral Account, as of the first day of the
month in which the amount is withheld. The Annual Deferral Amount 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 Company Matching Contribution. Each Plan Year the Company shall make a
Company Matching Contribution on behalf of the Participant. Such
contribution shall be equal to the matching contribution the Company
would have made to its qualified Section 401(k) plan, assuming no
antidiscrimination limitations applied, had the Participant's Annual
Deferral Amount hereunder been contributed to the Section 401(k) plan,
less the actual matching contribution, if any, made to such qualified
plan. These contributions shall be deemed credited to the Participant's
Employer Matching Contribution Account on the first day of the Plan Year
in respect of which they are made. A Participant will at all times have
a fully vested and nonforfeitable interest in each year's contribution
(including interest to be credited thereto).
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3.6 Earnings Crediting Prior to Distribution. Prior to any distributions of
benefits under Articles 4, 5, 6 or 7, earnings shall be credited and
compounded monthly to a Participant's Account Balance, as such balance
is determined each month in accordance with Section 3.4 above. The rate
for crediting shall be the Preferred Rate, except as otherwise expressly
provided herein. If the Crediting or Preferred Rate is based on Section
1.14 (a) hereof, such rate shall be determined each month by dividing
the applicable Preferred Rate (or , if expressly provide otherwise, the
Crediting Rate) by 12. If the Crediting or Preferred Rate is based on
Section 1.14 (b) hereof, such rate will be determined each month based
on the actual performance of the applicable benchmark fund for such
month. In the event of Retirement, death, or a Termination of
Employment, earnings will be credited to the Participant's Account
Balance under this Section 3.6 to the end of the month in which such
event occurs. If a distribution is made under this Plan, for purposes
of crediting earnings, the Account Balance shall be reduced as of the
first day of the month in which the distribution is made.
3.7 Interest Crediting for Installment Distributions. In the event a
benefit is paid in installments under Articles 5, 6, or 7, interest
shall be credited and compounded monthly on the undistributed portion of
the Participant's Account Balance in the following manner. Beginning
with the first day of the month following the month during which the
Participant Retires, dies, or experiences a Termination of Employment,
the Participant's Account Balance shall be amortized over the months
elected, using the applicable Crediting or Preferred Rate specified
below, in either case based on Section 1.14 (a) hereof. As of the first
day of the subsequent Plan Year and each Plan Year thereafter until the
Participant's Account Balance is paid in full, the Participant's
remaining Account Balance, determined as of the first day of the Plan
Year, shall be reamortized over the remaining payment period using the
applicable monthly interest rate specified below. The applicable
monthly rate of interest for crediting shall be the current Preferred
Rate in the case of distributions under Article 5 and 6, and the
Crediting Rate in the case of distributions under Article 7, divided by
12 and compounded over the remaining period of distribution.
3.8 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 Base Annual Salary and/or Annual Bonus, and (b)
in order to comply with this Section.
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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 at the Preferred Rate on that amount. 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. No partial withdrawals shall be allowed. The
Participant shall make this election by giving the Committee advance
written notice of the election in a 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 on 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 3.6 hereof
and, if applicable, Section 3.7 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
Election 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 3.7 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
Election Form to the Committee, provided that any such Election Form is
submitted at least two (2) years prior to the Participant's Retirement.
The Election 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, the time the lump sum payment is actually made.
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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 3.6 hereof and, if
applicable 3.7 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 3.6 hereof and, if applicable,
Section 3.7 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
Election 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 3.7 above). The Participant may change the
selection to an allowable alternative pay out period by submitting a new
election form to the Committee, provided that any such Election Form is
submitted at least two (2) years prior to the Participant's Termination
of Employment. The Election 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, the time the lump sum payment is actually
made.
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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.
(c) Return to Work. If a Participant returns to employment with an
Employer after a Disability ceases, the Participant may elect to
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 1.36 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, notwithstanding Section 3.7 hereof, using the Preferred Rate
for the Plan Year in which the particular installment is paid.
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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 that
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.
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.
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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
1.36 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 1.36 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
receive benefits in the manner he or she elected.
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 years following a Change in Control, the interest
rate for an installment payment shall in all events, notwithstanding
Section 3.7 hereof, be the Preferred Rate for the Plan Year in which
the installment payments commence.
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.
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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 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.
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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
(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
he Claimant:
(i) the specific reason(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 a 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.
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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
this 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.
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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, judgments, 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.
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.
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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:
Vice President, Human Resources
MUELLER INDUSTRIES, INC.
8001 Centerview Parking, Suite 103
Cordova, TN 38018
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 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.
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 herein.
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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, incompetency, 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.
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.
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IN WITNESS WHEREOF, the Company has signed this amended and restated Plan
document as of ______________________, 1997.
MUELLER INDUSTRIES, INC.
a Delaware corporation
By:_____________________________
Its:____________________________