MUELLER INDUSTRIES, INC. AMENDMENT NO. 1 TO AMENDED AND RESTATED CONSULTING AGREEMENT
XXXXXXX
INDUSTRIES, INC.
AMENDMENT
NO. 1 TO AMENDED AND RESTATED CONSULTING AGREEMENT
This
Amendment No. 1 to the Amended and Restated Consulting Agreement (the “Amendment”) is made
as of December 2, 2008, by and between Xxxxxxx Industries, Inc., a Delaware
corporation (the “Company”), and Xxxxxx
Xxxx (“Executive”).
WHEREAS, the Company and
Executive are parties to an Amended and Restated Consulting Agreement dated as
of October 25, 2007 (the “Consulting
Agreement”); and
WHEREAS, the Company and
Executive desire to amend the Consulting Agreement.
NOW, THEREFORE, the parties
agree as follows:
1. Section
1 of the Consulting Agreement shall be amended in its entirety to read as
follows:
“This
Agreement shall become effective (the “Effective Date”) upon the termination of
Executive’s employment as Chairman of the Company, provided that the Executive’s
employment has not been terminated by the Company for Cause or on account of the
Executive’s death or permanent disability, and provided further that such
termination of Executive’s employment also constitutes a “separation from
service” as defined in Treas. Reg. § 1.409A-1(h).
2. Section
4(b) of the Consulting Agreement shall be amended in its entirety to read as
follows:
“The
Executive shall be entitled to reimbursement for reasonable business and travel
expenses incurred in the performance of his duties in accordance with the
Company’s normal reimbursement practices. To the extent that any
right to reimbursement of expenses under this Agreement constitutes nonqualified
deferred compensation (within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”)), such expense reimbursement shall
be made by the Company no later than the last day of the taxable year following
the taxable year in which such expense was incurred by the
Executive.”
3. Section
4(c) of the Consulting Agreement shall be amended in its entirety to read as
follows:
“During
the Consulting Period, the Company shall pay the Executive an amount equal to
the Executive’s monthly cost of continuation health, major medical,
hospitalization and dental insurance coverage under the Company’s health plans
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986, as
amended, for each month of the Consulting Period, including any increases in
such monthly cost which may occur during the Consulting Period. Such
amounts shall be paid on a monthly basis until December 31 of the year in which
such termination occurs, and thereafter, on or after January 1 of each calendar
year following the year in which such termination occurs, but in no event later
than December 31 of each such calendar year. In addition, during the
Consulting Period, the Executive will be entitled to continue to participate in
the Company’s health, major medical, hospitalization and dental insurance plans
as are generally made available to the other executive officers of the Company
from time to time, provided he pays the premium amounts associated with such
continued participation.”
4. Section
8(b) of the Consulting Agreement shall be amended in its entirety to read as
follows:
“Subject
to the provisions of Section 8(c), all determinations required to be made under
this Section 8, including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by the nationally recognized
accounting firm then auditing the accounts of the Company (the “Accounting
Firm”) which shall provide detailed supporting calculations both to the Company
and the Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is requested by
the Company. In the event that the Accounting Firm is unwilling or
unable to perform its obligations pursuant to this Section 8, the Executive
shall appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to hereunder as the Accounting Firm). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up
Payment, determined pursuant to this Section 8, shall be paid by the Company to
the Executive within five days of the receipt of the Accounting Firm’s
determination, but in no event later than the end of the taxable year next
following the taxable year in which the Excise Tax is remitted to the Internal
Revenue Service. Any determination by the Accounting Firm shall be
binding upon the Company and the Executive. The parties hereto
acknowledge that, as a result of the potential uncertainty in the application of
Section 4999 of the Code (or any successor provision) at the time of the initial
determination by the Accounting Firm hereunder, it is possible that the Company
will not have made Gross-Up Payments which should have been made consistent with
the calculations required to be made hereunder (an
“Underpayment”). In the event that the Employer exhausts its remedies
pursuant to Section 8(c) and the Executive thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of the Executive.”
5. The
following shall be added after the fourth sentence of Section 8(c) of the
Consulting Agreement:
“Any
costs and expenses to be paid by the Company in connection with contesting any
such claim shall be paid no later than the last day of the taxable year
immediately following the taxable year in which such Excise Tax and income tax
are remitted to the taxing authority or where as a result of such proceedings or
litigation no such taxes are remitted, the end of the taxable year immediately
following the taxable year in which there is a final non-appealable settlement
or other resolution of the claim.”
6. In
Section 7 of the Consulting Agreement, the name “Xxxxxx X. Xxxxx” shall be
replaced by “Xxxxx Xxxxxxxxxx.”
7. To
the extent not amended hereby, the Consulting Agreement shall continue with full
force and effect in accordance with its terms.
IN
WITNESS WHEREOF, this Amendment has been entered into as of the date first set
forth above.
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XXXXXXX
INDUSTRIES, INC.
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XXXXXX
XXXX
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/S/
Xxxxxxx X. Xxxxxxxxxxx
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/S/
Xxxxxx Xxxx
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By:
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Signature
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Title:
CEO
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Printed
Name
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