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
Denis Suggs (the “ Executive ”).
WHEREAS,
the Company and Executive entered into an employment agreement
dated June 11, 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, Operations and President of
Belden Americas, 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:
(a) Executive
shall serve as Vice President of Operations and President of its
Belden Americas Division. In such capacity, Executive shall have
active and general supervision and management over the business
affairs of Belden Americas.
(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 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
June 11, 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 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 $355,000, 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. 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 70% of Base Salary.
(i)
The Board or the Committee shall award Executive as of the
Effective Date, 7,250 restricted stock units (the “
Buy-Out RSUs ”). The Buy-Out 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 Buy-Out RSUs to so vest, except as otherwise
provided hereunder and in the award agreement.
(i)
The Board or the Committee shall award Executive as of the
Effective Date such number of performance share units (the “
2007 PSUs ”) as equals the quotient of (A) $180,000
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 2007. 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.
(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 “2007
SSARs” ) as equal to the quotient of (A)
$180,000
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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 2007 fiscal year. The 2007 SSARs
will be granted with an exercise price equal to the Fair Market
Value of one share of Common Stock on the Effective Date. The 2007
SSARs shall vest and become exercisable in three (3) equal
installments on the first, second and third anniversaries of the
Effective Date, provided that the 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.
(c) LONG-TERM
INCENTIVE AWARDS.
(i)
Commencing with annual awards granted to senior executives in 2008,
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 2008 fiscal year having
a value on the grant date of not less than 120% of Base
Salary.
(ii)
All long-term incentive awards to Executive shall be granted
pursuant to and shall be subject to all of the terms and conditions
imposed upon such awards granted under the Plan.
(d) 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. 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.
(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).
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(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 a luncheon club membership in
Indianapolis, annual executive physical examinations, annual tax
preparation/review by the Company’s designated service
provider and for his reasonable professional fees incurred in
connection with the negotiation and finalization of this Agreement,
not in excess of $7,500.
(d) RELOCATION.
[Intentionally Omitted.] .
(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 and
6(b) of this Agreement.
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 or reasonable progress toward a
cure 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.
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.
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(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
RSUs, SSARs 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 Buy-Out Awards under Section 5(a) and the 2007 PSUs
and the 2007 SSARS awards under Section 5(b) (the “
Inducement Awards ”). 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:
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(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; and (C) reimbursement for any unreimbursed expenses,
incurred and documented in accordance with applicable Company
policy, through the date of termination (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 clause (C) 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 2007 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 unvested Inducement Awards
and any vested unexercised 2007 SSARs will be immediately
forfeited.
(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
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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” ).
(2)
To the extent that, upon such “involuntary separation from
service,” the amount of payments and benefits that would have
been payable to
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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 (1) year following the date of termination
or the exercise period stated in the award agreement. Any
restricted stock units awarded with respect to the 2007 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;
(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
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(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 22 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 by a vote of at least a
majority of the directors then comprising the Incumbent Board shall
be considered as though such ind
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