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EXHIBIT 10.8
AMENDED AND RESTATED
CHANGE OF CONTROL
EMPLOYMENT AGREEMENT
THIS
AGREEMENT is made and entered into as of the 31st day of
December,
2007, by and between LITTELFUSE, INC., a Delaware corporation
(hereinafter
referred to as the "Company"), and DAVID W. HEINZMANN (hereinafter
referred to
as the "Executive");
WITNESSETH:
WHEREAS, the Board of Directors of the Company (hereinafter
referred to as
the "Board") has determined that it is in the best interests of the
Company and
its stockholders to provide the Executive with certain protections
against the
uncertainties usually created by a Change of Control (as such term
is
hereinafter defined); and
WHEREAS, in order to better enable the Executive to devote his full
time,
attention and energy to the business of the Company prior to and
after a Change
of Control, thereby benefiting the Company and its stockholders,
the Company and
the Executive have entered into a Change of Control Employment
Agreement, dated
as of September 1, 2006 (the "Original Agreement"); and
WHEREAS, the Company and the Executive now wish to amend and
restate the
Original Agreement in order to comply with the requirements of
Section 409A of
the Internal Revenue Code (the "Code"), and the final regulations
issued to
implement said requirements ("Section 409A");
NOW,
THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged and confessed, the Company and the Executive hereby
agree that the
Original Agreement is amended and restated on the terms and
conditions set forth
below, which shall entirely supersede the terms and conditions of
the Original
Agreement:
Section 1. Certain Definitions. (a) The "Effective Date" shall mean
the
first date during the Change of Control Period (as defined in
Section 1(b)
hereof) on which a Change of Control (as defined in Section 2
hereof) occurs.
Notwithstanding anything to the contrary contained in this
Agreement, if a
Change of Control occurs and if the Executive's employment with the
Company is
terminated prior to the date on which the Change of Control occurs,
and if it is
reasonably demonstrated by the Executive that such termination of
employment (i)
was at the direct or indirect request of a third party who
theretofore had taken
any steps intended to effect a Change of Control or (ii) otherwise
arose in
connection with or in anticipation of a Change of Control, then for
all purposes
of this Agreement the "Effective Date" shall mean the date
immediately prior to
the date of such termination of employment.
(b)
The "Change of Control Period" shall mean the period commencing on
the
date hereof and ending on January 1, 2009.
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Section 2. Change of Control. For the purpose of this Agreement, a
"Change
of Control" shall mean:
(a) The acquisition in one or more transactions by any
individual,
entity or group (hereinafter referred to collectively as a
"Person") within
the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934,
as
amended (hereinafter referred to as the "Exchange Act"), of
beneficial
ownership (within the meaning of, and calculated in accordance
with, Rule
13d-3 promulgated under the Exchange Act) of 20% or more of either
(i) the
then
outstanding shares of common stock of the Company (hereinafter
referred to as the "Outstanding Company Common Stock") or (ii) the
combined
voting power of the then outstanding voting securities of the
Company
entitled to vote generally in the election of directors
(hereinafter
referred to as the "Outstanding Company Voting Securities");
provided,
however, that for purposes of this subsection (a), the
following
acquisitions shall not constitute a Change of Control: (i) any
acquisition
directly from the Company, (ii) any acquisition by the Company,
(iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or
maintained by the Company or any corporation controlled by the
Company, or
(iv)
any acquisition by any corporation pursuant to a transaction
which
complies with clauses (i), (ii) and (iii) of subsection (c) of this
Section
2;
or
(b) Individuals who, as of the date hereof, constitute the
Board
(hereinafter referred to as the "Incumbent Board") cease for any
reason to
constitute at least a majority of the Board; provided, however,
that any
individual becoming a director subsequent to the date hereof
whose
election, or nomination for election by the Company's stockholders,
was
approved by a vote of at least a majority of the directors then
comprising
the
Incumbent Board shall be considered as though such individual were
a
member of the Incumbent Board, but excluding, for this purpose, any
such
individual whose initial assumption of office occurs as a result of
an
actual or threatened election contest with respect to the election
or
removal of directors or other actual or threatened solicitation of
proxies
or
consents by or on behalf of a Person other than the Board; or
(c) Consummation of a reorganization, merger or consolidation or
sale
or
other disposition of all or substantially all of the assets of
the
Company (hereinafter referred to as a "Business Combination")
unless,
following such Business Combination, (i) all or substantially all
of the
individuals and entities who were the beneficial owners,
respectively, of
the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own,
directly or indirectly, more than 50% of, respectively, the
then
outstanding shares of common stock and the combined voting power of
the
then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting
from
such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company
or all
or substantially all
of the Company's assets either directly or through one
or
more subsidiaries) in substantially the same proportions as
their
ownership, immediately prior to such Business Combination of
the
Outstanding Company Common Stock and Outstanding Company Voting
Securities,
as
the case may be, (ii) no Person (excluding any corporation
resulting
from
such Business Combination or any employee benefit plan
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(or
related trust) of the Company or such corporation resulting from
such
Business Combination) beneficially owns, directly or indirectly,
20% or
more
of, respectively, the then outstanding shares of common stock of
the
corporation resulting from such Business Combination, or the
combined
voting power of the then outstanding voting securities of such
corporation
except to the extent that such ownership existed prior to the
Business
Combination and (iii) at least a majority of the members of the
board of
directors of the corporation resulting from such Business
Combination were
members of the Incumbent Board at the time of the execution of the
initial
agreement, or of the action of the Board, providing for such
Business
Combination; or
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company within one year after a
Business
Combination.
Section 3. Employment Period. The Company hereby agrees to continue
to
employ the Executive, and the Executive hereby agrees to remain as
an employee
of the Company, subject to the terms and conditions of this
Agreement, for the
period commencing on the Effective Date and ending on the second
anniversary of
such date (the "Employment Period").
Section 4. Terms of Employment.
(a)
Position and Duties. (i) During the Employment Period, (A) the
Executive's position (including status, offices, titles and
reporting
requirements), authority, duties and responsibilities shall be at
least
commensurate in all material respects with the most significant of
those held,
exercised and assigned at any time during the 120-day period
immediately
preceding the Effective Date and (B) the Executive's services shall
be performed
at the location where the Executive was employed immediately
preceding the
Effective Date or any office or location less than 20 miles from
such location.
(ii)
During the Employment Period, and excluding any periods of
vacation
and sick leave to which the Executive is entitled, the Executive
agrees to
devote reasonable attention and time during normal business hours
to the
business and affairs of the Company and, to the extent necessary to
discharge
the responsibilities assigned to the Executive hereunder, to use
the Executive's
reasonable best efforts to perform faithfully and efficiently
such
responsibilities. During the Employment Period it shall not be a
violation of
this Agreement for the Executive to (A) serve on corporate, civic
or charitable
boards or committees, (B) deliver lectures, fulfill speaking
engagements or
teach at educational institutions, and (C) manage personal
investments, so long
as such activities do not significantly interfere with the
performance of the
Executive's responsibilities as an employee of the Company in
accordance with
this Agreement. It is expressly understood and agreed that to the
extent that
any such activities have been conducted by the Executive prior to
the Effective
Date, the continued conduct of such activities (or the conduct of
activities
similar in nature and scope thereto) subsequent to the Effective
Date shall not
thereafter be deemed to interfere with the performance of the
Executive's
responsibilities to the Company.
(b)
Compensation. (i) Base Salary. During the Employment Period,
the
Executive shall receive an annual base salary (hereinafter referred
to as the
"Annual Base Salary"), which shall be paid at a monthly rate, equal
to at least
twelve times the highest monthly base salary paid
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or payable, including any base salary which has been earned but
deferred, to the
Executive by the Company and its affiliated companies in respect of
the
twelve-month period immediately preceding the month in which the
Effective Date
occurs. During the Employment Period, the Annual Base Salary shall
be reviewed
no more than 12 months after the last salary increase awarded to
the Executive
prior to the Effective Date and thereafter at least annually. Any
increase in
Annual Base Salary shall not serve to limit or reduce any other
obligation to
the Executive under this Agreement. Annual Base Salary shall not be
reduced
after any such increase and the term Annual Base Salary as used in
this
Agreement shall refer to Annual Base Salary as so increased. As
used in this
Agreement, the term "affiliated companies" shall include any
company controlled
by, controlling or under common control with the Company.
(ii)
Annual Bonus. In addition to the Annual Base Salary, the
Executive
shall be awarded, for each fiscal year ending during the Employment
Period, an
annual bonus (hereinafter referred to as the "Annual Bonus") in
cash at least
equal to the Executive's highest bonus under the Company's
incentive bonus
program or any comparable bonus under any predecessor or successor
plan, for the
last three full fiscal years prior to the Effective Date
(annualized in the
event that the Executive was not employed by the Company for the
whole of such
fiscal year) (hereinafter referred to as the "Recent Annual
Bonus"). Each such
Annual Bonus shall be paid no later than the fifteenth day of the
third month of
the fiscal year next following the fiscal year for which the Annual
Bonus is
awarded, unless the Executive shall elect to defer the receipt of
such Annual
Bonus. Any such deferral election shall be made not later than the
first day of
the fiscal year for which the Annual Bonus is paid, and shall be
made in
accordance with policies adopted by the Company in compliance with
Section 409A.
(iii) Incentive, Savings and Retirement Plans. During the
Employment
Period, the Executive shall be entitled to participate in all
incentive, savings
and retirement plans, practices, policies and programs applicable
generally to
other peer executives of the Company and its affiliated companies,
but in no
event shall such plans, practices, policies and programs provide
the Executive
with incentive opportunities (measured with respect to both regular
and special
incentive opportunities, to the extent, if any, that such
distinction is
applicable), savings opportunities and retirement benefit
opportunities, in each
case, less favorable, in the aggregate, than the most favorable of
those
provided by the Company and its affiliated companies for the
Executive under
such plans, practices, policies and programs as in effect at any
time during the
120-day period immediately preceding the Effective Date or if more
favorable to
the Executive, those provided generally at any time after the
Effective Date to
other peer executives of the Company and its affiliated
companies.
(iv)
Welfare Benefit Plans. During the Employment Period, the
Executive
and/or the Executive's family, as the case may be, shall be
eligible for
participation in and shall receive all benefits under welfare
benefit plans,
practices, policies and programs provided by the Company and its
affiliated
companies (including, without limitation, medical, prescription,
dental,
disability, employee life, group life, accidental death and travel
accident
insurance plans and programs) to the extent applicable generally to
other peer
executives of the Company and its affiliated companies, but in no
event shall
such plans, practices, policies and programs provide the Executive
with benefits
which are less favorable, in the aggregate, than the most favorable
of such
plans, practices, policies and programs in effect for the Executive
at any time
during the 120-day period immediately preceding the Effective Date
or, if more
favorable to the Executive,
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those provided generally at any time after the Effective Date to
other peer
executives of the Company and its affiliated companies.
(v)
Expenses. During the Employment Period, the Executive shall be
entitled
to receive prompt reimbursement for all reasonable expenses
incurred by the
Executive in accordance with the most favorable policies, practices
and
procedures of the Company and its affiliated companies in effect
for the
Executive at any time during the 120-day period immediately
preceding the
Effective Date or, if more favorable to the Executive, as in effect
generally at
any time thereafter with respect to other peer executives of the
Company and its
affiliated companies.
(vi)
Fringe Benefits. During the Employment Period, the Executive shall
be
entitled to fringe benefits, including, without limitation, tax and
financial
planning services, payment of club dues, and, if applicable, use of
an
automobile and payment of related expenses, in accordance with the
most
favorable plans, practices, programs and policies of the Company
and its
affiliated companies in effect for the Executive at any time during
the 120-day
period immediately preceding the Effective Date or, if more
favorable to the
Executive, as in effect generally at any time thereafter with
respect to other
peer executives of the Company and its affiliated companies.
(vii) Office and Support Staff. During the Employment Period, the
Executive
shall be entitled to an office or offices of a size and with
furnishings and
other appointments, and to exclusive personal secretarial and other
assistance,
at least equal to the most favorable of the foregoing provided to
the Executive
by the Company and its affiliated companies at any time during the
120-day
period immediately preceding the Effective Date or, if more
favorable to the
Executive, as provided generally at any time thereafter with
respect to other
peer executives of the Company and its affiliated companies.
(viii) Vacation. During the Employment Period, the Executive shall
be
entitled to paid vacation in accordance with the most favorable
plans, policies,
programs and practices of the Company and its affiliated companies
as in effect
for the Executive at any time during the 120-day period immediately
preceding
the Effective Date or, if more favorable to the Executive, as in
effect
generally at any time thereafter with respect to other peer
executives of the
Company and its affiliated companies.
Section 5. Termination of Employment.
(a)
Disability. If the Company determines in good faith that the
Disability
of the Executive has occurred during the Employment Period
(pursuant to the
definition of Disability set forth below), it may give written
notice to the
Executive of its intention to terminate the Executive's employment.
In such
event, the Executive's employment with the Company shall terminate
effective on
the 30th day after delivery of such notice to the Executive (the
"Disability
Effective Date"), provided that, within the 30 days after such
delivery, the
Executive shall not have returned to full-time performance of the
Executive's
duties. For purposes of this Agreement, "Disability" shall mean the
absence of
the Executive from the Executive's duties with the Company on a
full-time basis
for 180 consecutive business days as a result of incapacity due to
mental or
physical illness which is determined to be total and permanent by a
physician
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selected by the Company or its insurers and reasonably acceptable
to the
Executive or the Executive's legal representative.
(b)
Cause. The Company may terminate the Executive's employment during
the
Employment Period for Cause. For purposes of this Agreement,
"Cause" shall mean:
(i) the willful and continued failure of the Executive to
perform
substantially the Executive's duties with the Company (other than
any such
failure resulting from incapacity due to physical or mental
illness), after
a
written demand for substantial performance is delivered to the
Executive
by
the Board which specifically identifies the manner in which the
Board
believes that the Executive has not substantially performed the
Executive's
duties and such failure is not cured within sixty (60) calendar
days after
receipt of such written demand; or
(ii) the willful engaging by the Executive in illegal conduct or
gross
misconduct which is materially and demonstrably injurious to the
Company.
For
purposes of this provision, any act or failure to act on the part
of
the Executive in violation or contravention of any order,
resolution or
directive of the Board of Directors of the Company shall be
considered "willful"
unless such order, resolution or directive is illegal or in
violation of the
certificate of incorporation or by-laws of the Company; provided,
however, that
no other act or failure to act on the part of the Executive, shall
be considered
"willful," unless it is done, or omitted to be done, by the
Executive in bad
faith or without reasonable belief that the Executive's action or
omission was
in the best interests of the Company. Any act, or failure to act,
based upon
authority given pursuant to a resolution duly adopted by the Board
or upon the
instructions of the Chief Executive Officer or a senior officer of
the Company
or based upon the advice of counsel for the Company shall be
conclusively
presumed to be done, or omitted to be done, by the Executive in
good faith and
in the best interests of the Company. The cessation of employment
of the
Executive shall not be deemed to be for Cause unless and until
there shall have
been delivered to the Executive a copy of a resolution duly adopted
by the
affirmative vote of not less than three-quarters of the entire
membership of the
Board at a meeting of the Board called and held for such purpose
(after
reasonable notice is provided to the Executive and the Executive is
given an
opportunity, together with counsel, to be heard before the Board),
finding that,
in the good faith opinion of the Board, the Executive is guilty of
the conduct
described in subparagraph (i) or (ii) above, and specifying the
particulars
thereof in detail.
(c)
Good Reason. The Executive's employment may be terminated by
the
Executive for Good Reason. For purposes of this Agreement, "Good
Reason" shall
mean:
(i) the Executive is not elected to, or is removed from, any
elected
office of the Company which the Executive held immediately prior to
the
Effective Date;
(ii) the assignment to the Executive of any duties inconsistent in
any
respect with the Executive's position, authority, duties or
responsibilities as contemplated by Section 4(a) hereof, or any
other
action by the Company which results in a diminution in such
position,
authority, duties or responsibilities, excluding for this purpose
an
isolated,
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insubstantial and inadvertent action not taken in bad faith and
which is
remedied by the Company promptly after receipt of notice thereof
given by
the
Executive;
(iii) any failure by the Company to comply with any of the
provisions
of
this Agreement, other than an isolated, insubstantial and
inadvertent
failure not occurring in bad faith and which is remedied by the
Company
promptly after receipt of notice thereof given by the
Executive;
(iv) the Company's requiring the Executive to travel on Company
business to a substantially greater extent than required
immediately prior
to
the Effective Date; or
(v) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this
Agreement.
For
purposes of this Section 5(c), any good faith determination of
"Good
Reason" made by the Executive shall be conclusive.
(d)
Notice of Termination. Any termination by the Company for Cause, or
by
the Executive for Good Reason, shall be communicated by Notice of
Termination to
the other party hereto given in accordance with Section 12(b)
hereof. For
purposes of this Agreement, a "Notice of Termination" means a
written notice
which (i) indicates the specific termination provision in this
Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts
and circumstances claimed to provide a basis for terminat
