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
Stephen H. Johnson (the “ Executive
”).
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 Treasurer, 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 Treasurer of
Belden Inc. 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 $225,000, 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 Financial Officer (
“CFO” ) and may be adjusted from time to time by
the CFO (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
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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
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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.
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(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” ):
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(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.
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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
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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
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