|
Exhibit 10.2 AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT (this " Agreement ") is
executed on December 19, 2008, but effective as of
December 1, 2008, between Belden Inc., a Delaware corporation
(the " Company "), and Kevin Bloomfield (the "
Executive "). W I T N E
S S E T H :
WHEREAS , the Company and
Executive entered into an employment agreement dated July 23,
2007 ( the "Prior Agreement");
WHEREAS, the Company and
Executive desire to amend and fully restate the Prior Agreement and
to continue Executive’s employment with the Company as its
Vice President, Secretary and General Counsel, in accordance with
the terms hereof; and WHEREAS
, the Company and Executive desire to amend the Prior Agreement so
as to conform the existing terms of Executive’s employment
with Section 409A ("Section 409A") of the Internal
Revenue Code of 1986, as amended ( the "Code") and
the final Treasury Regulations related thereto, among other
amendments herein. NOW
THEREFORE , in consideration of the foregoing, of the mutual
promises contained herein and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. POSITION/DUTIES .
Executive shall serve as the Vice President, Secretary and General
Counsel of the Company. Executive shall use Executive’s best
efforts to perform faithfully and efficiently the duties and
responsibilities assigned to Executive hereunder and devote
substantially all of Executive’s business time to the
performance of Executive’s duties with the Company; provided,
the foregoing shall not prevent Executive from participating in
charitable, civic, educational, professional or community affairs
so long as such activities do not materially interfere with the
performance of Executive’s duties hereunder or create a
potential business conflict or the appearance thereof.
2. TERM OF AGREEMENT .
The Prior Agreement was effective on July 16, 2007 (the "
Effective Date ") and this Agreement shall end on the third
anniversary of the Effective Date. The term of this Agreement shall
be automatically extended thereafter for successive one
(1) year periods unless, at least ninety (90) days prior
to the end of the initial term of this Agreement or the then
current succeeding one-year extended term of this Agreement, the
Company or Executive has notified the other that the term hereunder
shall terminate upon its expiration date. The initial term of this
Agreement, as it may be extended from year to year thereafter, is
herein referred to as the " Term ." The foregoing to the
contrary notwithstanding, upon the occurrence of a Change in
Control (defined below) at any time after the first anniversary of
the Effective Date, the Term of this Agreement shall be extended to
the second anniversary of the date of the occurrence of such Change
in Control and shall be subject to expiration thereafter upon
notice by Executive or the Company to the other party or to
automatic
successive additional one-year periods, as the case may be, in
the manner provided above. If Executive remains employed by the
Company beyond the expiration of the Term, he shall be an employee
at-will; except that any provisions identified as surviving shall
continue. In all events hereunder, Executive’s employment is
subject to earlier termination pursuant to Section 7 hereof,
and upon such earlier termination the Term shall be deemed to have
ended. 3. BASE SALARY .
As of December 1, 2008, the Company shall continue to pay
Executive a base salary (the " Base Salary ") at an annual
rate of $310,000, payable in accordance with the regular payroll
practices of the Company. Executive’s Base Salary shall be
subject to annual review by the Company’s Chief Executive
Officer ( "CEO" ) and may be adjusted from time to time by
the CEO (as approved by the Compensation Committee of the Board of
Directors of the Company). The base salary as determined herein
from time to time shall constitute "Base Salary" for purposes of
this Agreement. 4. ANNUAL
CASH INCENTIVE COMPENSATION . As of the Effective Date,
Executive shall continue to be eligible to participate in the
Company’s annual cash incentive (bonus) plan and any
successor annual cash incentive plans. Executive shall have the
opportunity to earn an annual target cash incentive award, measured
against performance criteria to be determined by the
Company’s Board (or a committee thereof).
5. STOCK OWNERSHIP.
Executive shall be subject to, and shall comply with, the stock
ownership guidelines of the Company as may be in effect from time
to time. 6. EMPLOYEE
BENEFITS . As of the Effective Date:
(a) BENEFIT
PLANS. Executive shall continue to be entitled to participate in
all employee benefit plans of the Company including, but not
limited to, equity, pension, thrift, profit sharing, medical
coverage, education, or other retirement or welfare benefits that
the Company has adopted or may adopt, maintain or contribute to for
the benefit of its senior executives in accordance with the terms
of such plans and programs.
(b) VACATION.
Executive shall continue to be entitled to annual paid vacation in
accordance with the Company’s policy applicable to senior
executives.
(c) BUSINESS
AND ENTERTAINMENT EXPENSES. Upon presentation of appropriate
documentation, Executive shall be reimbursed in accordance with the
Company’s expense reimbursement policy for all reasonable and
necessary business expenses incurred in connection with the
performance of Executive’s duties hereunder.
(d) CERTAIN
AMENDMENTS. Nothing herein shall be construed to prevent the
Company from amending, altering, terminating or reducing any plans,
benefits or programs. 7.
TERMINATION . Executive’s employment and the Term
shall terminate on the first of the following to occur:
(a) DISABILITY.
Upon written notice by the Company to Executive of termination due
to Disability, while Executive remains Disabled. For purposes of
this
2
Agreement, " Disability " shall have the meaning defined
under the Company’s then-current long-term disability
insurance plan in which Executive participates.
(b) DEATH.
Automatically on the date of death of Executive.
(c) CAUSE.
Immediately upon written notice by the Company to Executive of a
termination of Executive’s employment for Cause. "
Cause " shall mean:
(i)
Executive’s willful and continued failure to perform
substantially his duties owed to the Company or its affiliates
after a written demand for substantial performance is delivered to
him specifically identifying the nature of such unacceptable
performance, which is not cured by Executive within a reasonable
period, not to exceed thirty (30) days;
(ii)
Executive is convicted of (or pleads guilty or no contest to) a
felony or any crime involving moral turpitude; or
(iii)
Executive has engaged in conduct that constitutes gross misconduct
in the performance of his employment duties. An act or omission by
Executive shall not be "willful" if conducted in good faith and
with Executive’s reasonable belief that such conduct is in
the best interests of the Company.
(d) WITHOUT
CAUSE. Upon written notice by the Company to Executive of an
involuntary termination of Executive’s employment other than
for Cause (and other than due to his Disability).
(e) GOOD
REASON. Upon written notice by Executive to the Company of a
voluntary termination of Executive’s employment at any time
during a Protection Period (defined in Section 10 below), for
Good Reason. " Good Reason " shall mean, without the express
written consent of Executive, the occurrence of any of the
following events during a Protection Period:
(i)
Executive’s Base Salary or annual target bonus opportunity is
materially reduced;
(ii)
Executive’s duties or responsibilities are negatively and
materially changed in a manner inconsistent with Executive’s
position (including status, offices, titles, and reporting
responsibilities) or authority; or
(iii)
The Company requires Executive’s principal office to be
relocated more than 50 miles from its location as of the date
immediately preceding the Change in Control.
Prior
to any termination by Executive for "Good Reason," he shall provide
the Board not less than thirty (30) nor more than ninety
(90) days’ notice, with specificity, of the grounds
constituting Good Reason and an opportunity within such notice
period for the
3
Company to cure such grounds. Such notice shall be given within
ninety (90) days following the initial existence of such
grounds constituting Good Reason for such notice and subsequent
termination, if not so cured above, to be effective.
(f) VOLUNTARY
TERMINATION FOR ANY REASON (WITHOUT GOOD REASON DURING A PROTECTION
PERIOD). Upon at least thirty (30) days’ prior written
notice by Executive to the Company of Executive’s voluntary
termination of employment (i) for any reason prior to or after
a Protection Period or (ii) without Good Reason during a
Protection Period, in either case which the Company may, in its
sole discretion, make effective earlier than any termination date
set forth in such notice. 8.
CONSEQUENCES OF TERMINATION . Any termination payments made
and benefits provided under this Agreement to Executive shall be in
lieu of any termination or severance payments or benefits for which
Executive may be eligible under any of the plans, policies or
programs of the Company or its affiliates, it being understood that
stock options and other Long-Term Awards (as defined in
Section 11 hereof) shall be treated as addressed in
Section 11 hereof. Upon termination of Executive’s
employment, the following amounts and benefits shall be due to
Executive:
(a) DEATH;
DISABILITY. If Executive’s employment terminates due to
Executive’s death or Disability, then the Company shall pay
or provide Executive (or the legal representative of his estate in
the case of his death) with:
(i)
(A) any accrued and unpaid Base Salary through the date of
termination and any accrued and unused vacation in accordance with
Company policy; and (B) reimbursement for any unreimbursed
expenses, incurred and documented in accordance with applicable
Company policy, through the date of termination (collectively, "
Accrued Obligations ");
(ii)
Any unpaid bonus earned with respect to any fiscal year ending on
or preceding the date of termination, payable when bonuses are paid
generally to senior executives for such year;
(iii)
A pro-rated annual bonus for the fiscal year in which such
termination occurs, the amount of which shall be based on actual
performance under the applicable bonus plan and a fraction, the
numerator of which is the number of days elapsed during the
performance year through the date of termination and the
denominator of which is 365, which pro-rated bonus shall be
paid when bonuses are paid generally to senior executives for such
year; and
(iv)
Any disability insurance benefits, or life insurance proceeds, as
the case may be, as may be provided under the Company plans in
which Executive participates immediately prior to such termination.
(b) VOLUNTARY
TERMINATION (INCLUDING VOLUNTARY TERMINATION WITHOUT GOOD REASON
DURING A PROTECTION PERIOD); INVOLUNTARY TERMINATION WITHOUT CAUSE
AT OR AFTER AGE 65; INVOLUNTARY TERMINATION FOR CAUSE.
4
(i)
If Executive’s employment should be terminated (i) by
Executive for any reason at any time other than during a Protection
Period, or (ii) by Executive without Good Reason during a
Protection Period, then the Company shall pay to Executive any
Accrued Obligations in accordance with Section 8(a)(i).
(ii) If
Executive’s employment is terminated by the Company without
Cause and other than for Disability at or after Executives’
attainment of age 65, the Company shall pay to Executive any
Accrued Obligations.
(iii)
If Executive’s employment is terminated by the Company for
Cause, the Company shall pay to Executive any Accrued Obligations.
(c) TERMINATION
WITHOUT CAUSE. If at any time (A) prior to Executive’s
attainment of age 65 and (B) other than during a Protection
Period, Executive’s employment by the Company is terminated
by the Company without Cause (and other than a termination for
Disability), then the Company shall pay or provide Executive with:
(i)
Executive’s Accrued Obligations, payable in accordance with
Section 8(a)(i);
(ii)
Any unpaid bonus earned with respect to any fiscal year ending on
or preceding the date of termination, payable when bonuses are paid
generally to senior executives for such year;
(iii) A
pro-rated annual bonus for the fiscal year in which such
termination occurs, the amount of which shall be based on actual
performance under the applicable bonus plan and a fraction, the
numerator of which is the number of days elapsed during the
performance year through the date of termination and the
denominator of which is 365, which pro-rated bonus shall be
paid when bonuses are paid generally to senior executives for such
year; and
(iv)
Severance payments in the aggregate amount equal to the sum of
(A) Executive’s then Base Salary plus (B) his
annual target bonus, which amount shall be payable to Executive in
equal semi-monthly payroll installments over a period of twelve
(12) months.
For
purposes of this subparagraph (iv) each installment severance
payment to Executive under this subparagraph (iv) shall be
treated as a separate payment (within the meaning of
Section 409A).
Provided,
anything herein to the contrary notwithstanding, if on the date of
termination Executive is a "specified employee" of the Company (as
defined in Treasury Regulation Section 1.409A-1(i)), to
the extent that such severance payments (and any other payments and
benefits provided in Section 8) constitute a "deferral of
compensation" under a "nonqualified deferred compensation plan"
under Section 409A and Treasury Regulation Section
1.409A-1, the following provisions shall apply ( "Safe Harbor
and Postponement" ):
5
(1)
If such payments and benefits are payable on account of
Executive’s "involuntary separation from service" (as defined
in Treasury Regulation Section 1.409A-1(n)), Executive
shall receive such amount of his severance payments during the six
(6)-month period immediately following the date of termination as
equals the lesser of: (x) such severance payment amount due
Executive under Section 8 during such six (6)-month period or
(y) two (2) multiplied by the compensation limit in
effect under Section 401(a)(17) of the Code, for the calendar
year in which the date of termination occurs and as otherwise
provided under Treasury
Regulation Section 1.409A-1(b)(9)(iii) and shall be
entitled to such of his benefits as satisfy the exception under
Treasury Regulation Section 1.409A-1(b)(9)(v) ( "Limitation
Amount" ).
(2)
To the extent that, upon such "involuntary separation from
service," the amount of payments and benefits that would have been
payable to Executive under Section 8 during the six (6)-month
period following the last day of his employment exceeds the
Limitation Amount, such excess shall be paid on the first regular
semi-monthly payroll date following the expiration of such six
(6)-month period.
(3)
If the Company reasonably determines that such employment
termination is not such an "involuntary separation from service,"
all such payments and benefits that would have been payable to the
Executive under Section 8 during the six (6)-month period
immediately following the date of termination, but for such
determination, shall be paid on the first regular semi-monthly
payroll date immediately following the expiration of such six
(6)-month period following the date of termination.
(4)
Any payments under this Section 8(c) that are postponed
pursuant to the Safe Harbor and Postponement shall accrue interest
at an annual rate (compounded monthly) equal to the short-term
applicable federal rate (as in effect under Section 1274(d) of the
Code on the last day of the Executive’s employment) plus 100
basis points, which interest shall be paid on the first regular
semi-monthly payroll date immediately following the expiration of
the six (6)-month period following the date of termination.
(v)
Subject to Executive’s continued co-payment of premiums,
continued participation for twelve (12) months in the
Company’s medical benefits plan which covers Executive and
his eligible dependents upon the same terms and conditions (except
for the requirements of Executive’s continued employment) in
effect for active employees of the Company. In the event Executive
obtains other employment that offers substantially similar or more
favorable medical benefits, such continuation of coverage by the
Company under this subsection shall immediately cease. The
continuation of health benefits under this subsection shall reduce
the period of coverage and count against Executive’s right to
healthcare continuation benefits under COBRA.
6
9. CONDITIONS . Any
payments or benefits made or provided to Executive pursuant to any
subsection of Section 8, other than Accrued Obligations, are
subject to Executive’s:
(a) compliance
with the provisions of Section 12 hereof;
(b) delivery
to the Company of an executed Agreement and General Release (the
"General Release "), which shall be substantially in the
form attached hereto as Exhibit A within twenty-one
(21) days after presentation thereof by the Company to
Executive; and
(c) delivery
to the Company of a resignation from all offices, directorships and
fiduciary positions held by Executive with the Company, its
affiliates and employee benefit plans. Notwithstanding the due date
of any post-employment payments, any amounts due following a
termination under this Agreement (other than Accrued Obligations)
shall not be payable until after the expiration of any statutory
revocation period applicable to the General Release without
Executive having revoked such General Release, and, subject to the
provisions of Section 21 hereof, any such amounts shall be
paid to Executive within thirty (30) days thereafter.
Notwithstanding the foregoing, Executive shall be entitled to any
Accrued Obligations, payable without regard for the conditions of
this Section 9. 10.
CHANGE IN CONTROL; EXCISE TAX .
(a) CHANGE
IN CONTROL. A "Change in Control" of the Company shall be
deemed to have occurred if any of the events set forth in any one
of the following subparagraphs shall occur:
(i)
The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act" )) (a
"Person" ) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of more than
50% of either (i) the then-outstanding shares of common stock
of the Company (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 (the "Outstanding Company Voting
Securities" ); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a
Change of Control: (1) any acquisition directly from the
Company, (2) any acquisition by the Company, (3) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company, or (4) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(1) and (2) of subsection (iii) of this definition;
(ii)
individuals who, as of the date hereof, constitute the Board (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
shareholders, was approved
7
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;
(iii)
consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of
the Company (a "Business Combination" ), in each case,
unless, following such Business Combination, (1) 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) and 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, and (2) 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
(iv)
approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(b) QUALIFYING
TERMINATION . If, prior to Executive’s
attainment of age 65, Executive’s employment is involuntarily
terminated by the Company without Cause (and other than due to his
Disability) or is voluntarily terminated by Executive for Good
|
