|
Exhibit 10.1
Execution Copy 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.
(formerly Belden CDT Inc.), a Delaware corporation (the "
Company "), and Gray Benoist (the " Executive ").
W I T N E S S
E T H :
WHEREAS, the Company and Executive entered into an
employment agreement dated August 24, 2006 (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 and Chief Financial Officer, 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 .
(a) Executive
shall serve as the Vice President and Chief Financial Officer of
the Company. In such capacity, Executive shall have active and
general supervision and management over the financial affairs of
the Company, including its treasury and accounting functions, and
shall report to the Company’s Chief Executive Officer ("
CEO ").
(b) 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 (i) participating in charitable, civic, educational,
professional, community or industry affairs or, with prior approval
of the Board of Directors of the Company (the "Board"), serving on
the board of directors or advisory boards of other companies, and
(ii) managing Executive’s and Executive’s
family’s personal investments, in all events 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. If at any time service on any
board of directors or advisory board would, in the good faith
judgment of the Board, conflict with Executive’s fiduciary
duty to the Company or create any appearance thereof, Executive
shall, as soon as reasonably practicable considering any
fiduciary duty to the other such company, resign from such other
board of directors or advisory board after written notice of the
conflict is received from the Board.
(c) Executive
further agrees to serve without additional compensation as an
officer and director of any of the Company’s subsidiaries and
agrees that any amounts received from any such corporation may be
offset against the amounts due hereunder.
2. TERM OF AGREEMENT .
The Prior Agreement was effective on August 24, 2006 and the
initial term of Executive’s employment with the Company
commenced on August 24, 2006 (the " Effective Date ")
and this Agreement shall end on the fifth 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 third 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
$400,000, payable in accordance with the regular payroll practices
of the Company. Executive’s Base Salary shall be subject to
annual review by the CEO and may be increased from time to time
upon the recommendation by the CEO and approval by the Compensation
Committee (the "Committee") of the Board. The base salary as
determined herein from time to time shall constitute "Base Salary"
for purposes of this Agreement.
4. ANNUAL CASH INCENTIVE
COMPENSATION. Commencing on the Effective Date, Executive shall
be eligible to participate in the Company’s annual cash
incentive (bonus) plan and any successor annual cash incentive
plans. Commencing with the 2009 fiscal year, Executive shall have
the opportunity to earn an annual target cash incentive award,
measured against performance criteria to be determined by the Board
(or a committee thereof), of at least 85% of Base Salary.
5. EQUITY AWARDS .
(a) INDUCEMENT
AWARDS.
(i) The
Board or the Committee shall award Executive as of the Effective
Date such number of restricted stock units (the " Inducement
RSUs ") as equals
2
the quotient of (A) $300,000 divided by (B) the Fair Market
Value (as defined under the Company’s 2001 Long-Term
Performance Incentive Plan (the " Plan ")) of one share of
Common Stock on the Effective Date, in accordance with the form of
award attached hereto as Exhibit A . The Inducement
RSUs shall vest in full on the fifth anniversary of the Effective
Date, provided that Executive has been continuously employed by the
Company through such date for the Inducement RSUs to so vest,
except as otherwise provided hereunder and in the award agreement.
(ii)
The Board or the Committee shall award Executive as of the
Effective Date such number of stock appreciation rights settled in
shares of the Company’s Common Stock (the " Inducement
SSARs ") as equals the quotient of (A) $500,000 divided by
(B) the Black-Scholes value (or other valuation method) of one
(1) share of Common Stock on the Effective Date as determined
by the Committee or the Board for the valuation of SSAR grants to
other senior executives during the 2006 fiscal year. The Inducement
SSARs will be granted with an exercise price equal to the Fair
Market Value of one (1) share of Common Stock on the Effective
Date. The Inducement SSARs shall vest and become exercisable in
three (3) equal installments on the first, second and third
anniversaries of the Effective Date, provided that Executive has
been continuously employed by the Company through each such vesting
date for such installment to so vest, except as otherwise provided
hereunder and in the award agreement.
(iii)
The Board or the Committee shall award Executive as of the
Effective Date such number of performance share units ("
Inducement PSUs ") as equals the quotient of (A) $500,000
divided by (B) the Fair Market Value of one share of Common
Stock on the Effective Date. Each Inducement PSU represents the
right to receive between zero and one and one-half (1.5) restricted
stock units, depending on attainment of Company performance
objectives during calendar year 2006. Each such restricted stock
unit represents the right to receive one share of Common Stock, and
shall vest as provided hereunder and in the award agreement.
(b) LONG-TERM
INCENTIVE AWARDS.
(i)
Commencing with annual awards granted to senior executives in 2007,
Executive shall be eligible for annual long-term incentive awards
throughout the Term under such long-term incentive plans and
programs as may be in effect from time to time in accordance with
the Company’s compensation practices and the terms and
provisions of any such plans or programs; provided, that
Executive’s participation in such plans and programs shall be
at a level and on terms and conditions consistent with
participation by other senior executives of the Company, as the
Board or the Committee shall determine in its sole discretion, with
due consideration of Executive’s position, awards granted to
other senior executives of the Company and competitive compensation
data. Notwithstanding, provided that Executive is employed by the
Company on the date of grant, Executive shall be granted an annual
long-term incentive equity award during the 2007 fiscal year (the "
2007 LTI Award ") having a value on the grant date of not
less than 200% of Base Salary.
3
(ii)
Fifty percent (50%) of the 2007 LTI Award will be provided in stock
appreciation rights settled in shares of the Company’s Common
Stock (the " 2007 SSARs "). The 2007 SSARs will be granted
with an exercise price equal to the Fair Market Value of one
(1) share of Common Stock on the date of grant and shall vest
and become exercisable in three (3) equal installments on the
first, second and third anniversaries of the grant date, provided
that Executive has been continuously employed by the Company
through each such vesting date for such installment to so vest,
except as otherwise provided hereunder. The number of 2007 SSARs
granted shall be equal to the quotient of (A) the dollar value
to be awarded divided by (B) the Black-Scholes value (or other
valuation method) of one (1) share of Common Stock on the
grant date as determined by the Committee or the Board for the
valuation of 2007 SSAR grants to other senior executives during the
2007 fiscal year.
(iii)
The remaining fifty percent (50%) of the 2007 LTI Award will be
provided in performance-based restricted stock (the " Restricted
Stock "). Such Restricted Stock shall vest in two
(2) equal installments on the second and third anniversaries
of the grant dated, provided that Executive has been continuously
employed by the Company through each such vesting date for such
installment to so vest, except as otherwise provided hereunder. The
actual number of shares of Common Stock awarded to Executive as
Restricted Stock will be based on attainment of 2007 financial
performance goals, which will be determined by the Committee.
(iv)
All long-term incentive awards to Executive shall be granted
pursuant to and, to the extent not contrary to the terms of this
Agreement, shall be subject to all of the terms and conditions
imposed upon such awards granted under the Plan.
(c) 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, which presently provide that (i) the
projected after-tax value of Executive’s vested and unvested
Inducement RSUs and vested and unvested restricted stock units that
are awarded in connection with the Inducement PSUs, (ii) the
after-tax intrinsic value of Executive’s vested Inducement
SSARs, to the extent not exercised, and (iii) the intrinsic
value of vested, in-the-money stock options held by Executive shall
be included in the calculation of Executive’s stock
ownership. Under the Company’s current stock ownership
guidelines, Executive shall have five (5) years to satisfy the
stock ownership guidelines applicable to Executive; provided, that
the annual interim target for share accumulation by Executive is
20%. 6. EMPLOYEE
BENEFITS . Commencing on the Effective Date:
(a) BENEFIT
PLANS. Executive shall 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, on a basis no less favorable than other senior
executives of the Company, in accordance with the terms of such
plans and programs.
4
(b) VACATION.
Executive shall be entitled to annual paid vacation in accordance
with the Company’s policy applicable to senior executives,
but in no event less than four (4) weeks per year (as prorated
for partial years of employment).
(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. The Company
shall reimburse Executive for his reasonable professional fees
incurred in connection with the negotiation and finalization of
this Agreement, not in excess of $7,500.
(d) REIMBURSEMENT
FOR COMMUTING. The Company will reimburse Executive for the
reasonable cost of commuting between the Company’s
headquarters in St. Louis and Chicago (grossed-up for any
income taxable to Executive (and employment taxes) arising from
such reimbursement) until the expiration of the initial term of
this Agreement.
(e) CERTAIN
AMENDMENTS. Nothing herein shall be construed to prevent the
Company from amending, altering, terminating or reducing any plans,
benefits or programs so long as Executive continues to receive
compensation and benefits consistent with Sections 4, 5, 6(b)
and 6(d). 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 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;
(iii)
Executive breaches his representation or covenant under
Section 24; or
(iv)
Executive has engaged in conduct that constitutes gross misconduct
in the performance of his employment duties.
5
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 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 except as otherwise provided hereunder with
respect to the inducement awards under Section 5(a) (the "
Inducement Awards "). Upon termination of Executive’s
employment, the following amounts and benefits shall be due to
Executive:
6
(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; (B) any accrued and unpaid benefits through
the date of termination in accordance with the applicable plan or
program; (C) reimbursement for any unreimbursed expenses,
incurred and documented in accordance with applicable Company
policy, through the date of termination; and (D) reimbursement
for any unpaid reimbursement expenses in accordance with Section
6(d) (collectively, " Accrued Obligations "). Accrued
Obligations payable under clause (A) shall be payable within
fifteen (15) days following the date of termination, under
clause (B) shall be paid in accordance with the applicable
plan or program, and under clauses (C) and (D) shall be
paid within fifteen (15) days after Executive shall have
provided the Company all required documentation therefor;
(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;
(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;
and
(v)
Executive’s Inducement Awards shall become immediately fully
vested. Executive’s Inducement SSARs shall be exercisable for
the lesser of one year following the date of termination or the
exercise period stated in the award agreement. Any restricted stock
units awarded with respect to Inducement PSUs shall become
immediately fully vested.
(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. If
Executive’s employment should be terminated (i) by
Executive for any reason at any time other than during a Protection
Period, (ii) by Executive without Good Reason during a
Protection Period, (iii) by the Company without Cause and
other than for Disability at or after Executive’s attainment
of age 65, or (iv) by the Company for Cause, then the Company
shall pay to Executive any Accrued Obligations in accordance with
Section 8(a)(i). Upon termination of Executive’s
employment by the Company for Cause, all vested and unvested
Inducement Awards will be immediately forfeited.
7
(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" ):
(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" ).
8
(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 the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended (" COBRA "
) ; and
(vi)
Executive’s Inducement Awards shall become immediately fully
vested. Executive’s Inducement SSARs shall be exercisable for
the lesser of one year following the date of termination or the
exercise period stated in the award agreement. Any restricted stock
units awarded with respect to Inducement PSUs shall become
immediately fully vested. 9.
CONDITIONS . Any payments or benefits made or provided to
Executive pursuant to any subsection of Section 8 or
Section 10(b), other than Accrued Obligations are subject to
Executive’s:
(a) compliance
with the provisions of Section 12 hereof;
9
(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 un
|
