Exhibit 10.11
TERMINATION PROTECTION AGREEMENT
WHEREAS, a Termination Protection Agreement (the "Agreement") was
entered
into between Jimmy N. Raines ("Executive") and Thomas and Betts
Corporation and
its successors and assigns (the "Company") effective December 2,
2003; and
WHEREAS, Company and Executive desire to amend and restate the
Agreement,
effective January 1, 2005, to comply with section 409A of the
Internal Revenue
Code of 1986, as amended and the final regulations issued
thereunder; and
WHEREAS, the Board has approved the terms and provisions of this
Agreement
at its meeting on September 5, 2007;
NOW,
THEREFORE, the Company and Executive hereby agree as follows:
1.
Defined Terms.
Unless otherwise indicated herein, capitalized terms used in this
Agreement
which are defined in Schedule A shall have the meanings set forth
in Schedule A.
The
Company and Executive both agree that the definition of "Change
in
Control" listed in Schedule A shall be used for Executive in any
and all plans,
programs or agreements in which Executive participates or to which
Executive is
a party in lieu of any similar definition used in such plans,
programs or
agreements.
2.
Effective Date; Term.
This
Agreement commenced on December 2, 2003 (the "Effective Date") with
an
original term ending December 31, 2006; provided, however, that the
term of this
Agreement was automatically extended to December 31, 2007 and
shall
automatically be extended for one additional year beyond December
31, 2007 and
for successive one-year periods thereafter, unless, not later than
January 30 of
the third calendar year preceding the year in which the term would
otherwise
automatically extend (e.g., 2007 for the 2010 calendar year, 2008
for the 2011
calendar year, etc.), the Company shall have given written notice
to Executive
that it does not wish to extend this Agreement for an additional
year, in which
event this Agreement shall continue to be effective until December
31 of the
calendar year immediately preceding the calendar year in which the
term would
have otherwise automatically extended; provided, further, that,
notwithstanding
any such notice by the Company not to extend, if a Change in
Control occurs
during the original or any extended term of this Agreement, this
Agreement shall
remain in effect for a period of three (3) years after such Change
in Control.
3.
Change in Control Benefits.
Executive shall be
entitled to the benefits provided under this Agreement
if a Triggering Event occurs. In the event that Executive's
employment is
terminated as a result of death or Disability, Executive shall not
be entitled
to the benefits provided in this Section 3; however, Executive
and/or
Executive's family shall be entitled to receive benefits at least
equal to the
most favorable benefits provided by the Company under its plans,
programs and
policies relating to death and/or disability benefits as in effect
at any time
during the 90-day period immediately preceding the earlier of the
Change in
Control or the Termination Date.
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(a)
Severance Payment. The Company shall pay Executive the aggregate of
the
following amounts in one lump sum on the Payment Date:
(i) to the extent not paid before the Payment Date in accordance
with
the Company's ordinary payroll practices, Executive's earned but
unpaid base
salary through the date of the Triggering Event at the rate in
effect on the
date of such Triggering Event, or if higher, at the highest rate in
effect at
any time within the 90-day period preceding the Change in
Control;
(ii) to the extent not paid before the Payment Date in accordance
with
the terms of the Company's bonus plan, any unpaid annual bonus
payable to
Executive in respect of the calendar year ending prior to the
Triggering Event
(but not less than the Average Bonus);
(iii) an amount determined by multiplying the Average Bonus by
a
fraction, the numerator of which is the number of days elapsed in
the calendar
year in which the Triggering Event occurs up to and including the
date of such
Triggering Event and the denominator of which is 365;
(iv) a lump sum amount, in cash, equal to three (3) times
Executive's
Annual Compensation;
(v) any unpaid earned and/or accrued vacation; and
(vi) interest, for the period beginning on the date of the
Triggering
Event and ending on the Payment Date, at a rate equal to one
hundred twenty
(120) percent of the monthly compounded applicable federal rate, as
in effect
under Section 1274(d) of the Code for the month before the month in
which the
Triggering Event occurs.
Notwithstanding the foregoing, if the unpaid base salary or any
portion thereof or the unpaid annual bonus or any portion thereof
is subject to
a deferral election or if the bonus is subject to Section 409A of
the Code, such
amount shall be paid in accordance with the terms of such election
and/or the
terms of the plan pursuant to which such amount was deferred.
(b)
Health Care Coverage. The Company shall provide medical,
prescription
drug and dental coverage to Executive and, as applicable,
Executive's family
members eligible for such coverage (i) at the Company's expense
from the date of
the Triggering Event until the third anniversary of (A) the
Triggering Event or
(B) if the Termination Date occurs within three years after the
Triggering
Event, the Termination Date, and (ii) for 18 months thereafter at
Executive's
expense. Executive's cost shall be determined on the same basis as
the premium
cost is determined for COBRA coverage. The level of coverage to be
provided
shall be no less than the level of coverage provided immediately
before the
earlier of the Termination Date or the Change in Control. With
respect to
amounts subject to Section 409A of the Code, the Reimbursement and
In-Kind
Benefit Rule shall apply. If Executive becomes employed by a new
employer, the
coverages provided by Company under this Section 3(b) shall become
secondary to
those coverages provided by Executive's new employer.
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<PAGE>
(c)
Other Welfare Benefits. The Company shall provide disability,
group
term life and accidental death and dismemberment insurance and
travel accident
insurance at the Company's expense to Executive from the date of
the Triggering
Event until the third anniversary of (i) the Triggering Event or
(ii) if the
Termination Date occurs within three years after the Triggering
Event, the
Termination Date. The level of coverage to be provided shall be no
less than the
level of coverage provided immediately before the earlier of the
Termination
Date or the Change in Control. To the extent that any such benefit
is subject to
Section 409A of the Code and to the Delayed Payment Date, Executive
shall be
responsible for the payment of all expenses, including, but not
limited to, the
cost of the premiums for such coverage until the Delayed Payment
Date. The
Company shall reimburse Executive on the Delayed Payment Date for
all such costs
and expenses incurred prior to such Delayed Payment Date, provided
proof of
payment has been provided and shall assume the obligation to pay
all future
costs and expenses until the third anniversary of (A) the
Triggering Event or
(B) if the Termination Date occurs within three years after the
Triggering
Event, the Termination Date. The Reimbursement and In-Kind Benefit
Rule shall
apply to amounts subject to Section 409A of the Code.
(d)
Full Vesting of All Stock Options and Restricted Shares.
Notwithstanding any provision to the contrary in the Company's
equity incentive
plans (the "Equity Plans") or any award agreement under the Equity
Plans, (i)
any outstanding, unexercisable stock options or unvested restricted
shares shall
become fully exercisable and vested as of the Triggering Event and
(ii) all
stock options, whether or not such stock options first become
exercisable
pursuant to this Agreement, shall remain exercisable until the
earlier of (A)
the tenth anniversary of the original date of grant, or (B) the
latest date upon
which the option could have expired by its original terms under
any
circumstances; provided, however, that this sentence shall not
restrict the
Company's ability to adjust or settle outstanding stock options
pursuant to the
terms of the Equity Plans, so long as Executive is treated in any
such
adjustment or settlement no less favorably than any other employee
of the
Company.
(e)
Retirement Benefits. Executive shall be entitled to receive
retirement
benefits in accordance with the provisions of the Company's
Executive Retirement
Plan.
(f)
Outplacement Services. The Company shall pay the reasonable
expenses
incurred with respect to executive outplacement services provided
by any one
qualified outplacement agency selected by Executive and reasonably
satisfactory
to the Company from the Termination Date until the first
anniversary of (i) the
Triggering Event or (ii) if the Termination Date occurs within
three years after
the Triggering Event, the Termination Date.
(g)
Grantor Trust. Within ninety (90) days following execution of
this
Agreement, the Company shall establish a grantor trust, known as a
rabbi trust,
which shall provide for the Company to make an irrevocable
contribution to fully
fund the cash payments provided for under this Agreement in the
event of a
Change in Control. Notwithstanding the foregoing, such funding
shall not be
required if it would result in the imposition of additional tax
under Section
409A(b)(5) of the Code.
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<PAGE>
4.
Mitigation.
Executive shall not be required to mitigate damages or the amount
of any
payment provided for under this Agreement by seeking other
employment or
otherwise, and compensation earned from such employment or
otherwise shall not
reduce the amounts otherwise payable under this Agreement. No
amounts payable
under this Agreement shall be subject to reduction or offset in
respect of any
claims which the Company (or any other person or entity) may have
against
Executive.
5.
Code Section 4999 Tax Gross-Up.
(a)
In the event that any payment or benefit received or to be received
by
Executive pursuant to the terms of this Agreement (the "Contract
Payments") or
otherwise in connection with Executive's termination of employment
or contingent
upon a change in ownership or control pursuant to any plan or
arrangement or
other agreement with the Company (or any affiliate), ("Other
Payments" and,
together with the Contract Payments, the "Payments") would be
subject to the
excise tax (the "Excise Tax") imposed by Section 4999 of the Code,
as determined
as provided below, the Company shall pay to Executive, at the time
specified in
Section 5(b) below, an additional amount (the "Gross-Up Payment")
such that the
net amount retained by Executive, after deduction of the Excise Tax
on the
Payments and any federal, state and local income or other tax and
excise tax
upon the payment provided for by this Section 5(a), and any
interest, penalties
or additions to tax payable by Executive with respect thereto,
shall be equal to
the total value of the Payments at the time such Payments are to be
made. For
purposes of determining whether any of the Payments will be subject
to the
Excise Tax and the amounts of such Excise Tax, (1) the total amount
of the
Payments shall be treated as "parachute payments" within the
meaning of Section
280G(b)(2) of the Code, and all "excess parachute payments" within
the meaning
of Section 280G(b)(1) of the Code shall be treated as subject to
the Excise Tax,
except to the extent that, in the opinion of independent tax
counsel selected by
the Company's independent auditors and reasonably acceptable to
Executive ("Tax
Counsel"), a Payment (in whole or in part) does not constitute a
"parachute
payment" within the meaning of Section 280G(b)(2) of the Code, or
such "excess
parachute payments" (in whole or in part) are not subject to the
Excise Tax, (2)
the amount of the Payments that shall be treated as subject to the
Excise Tax
shall be equal to the lesser of (A) the total amount of the
Payments or (B) the
amount of "excess parachute payments" within the meaning of Section
280G(b)(1)
of the Code (after applying clause (1) hereof), and (3) the value
of any
non-cash benefits or any deferred payment or benefit shall be
determined by Tax
Counsel in accordance with the principles of Sections 280G(d)(3)
and (4) of the
Code. For purposes of this Section 5, any additional tax under
Section 409A of
the Code shall not be taken into account for purposes of
determining the amount
of any payment due to or on behalf of Executive.
(b)
The Gross-Up Payments provided for in Section 5(a) hereof shall be
made
upon the earlier of (i) the payment to Executive of any Payment or
(ii) the
imposition upon Executive or payment by Executive of any Excise
Tax, provided,
however, if the Gross-Up Payment is subject to the Delayed Payment
Date, on the
Delayed Payment Date, if later. In no event shall any amount due to
Executive
under this Section 5 be paid later than the end of the Executive's
taxable year
following Executive's taxable year in which such taxes are
remitted..
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<PAGE>
(c)
Executive shall notify the Company in writing of any claim by
the
Internal Revenue Service that, if successful, would require the
payment by the
Company of a Gross-Up Payment. Such notification shall be given as
soon as
practicable but no later than 10 business days after Executive is
informed in
writing of such claim and shall apprise the Company of the nature
of such claim
and the date on which such claim is requested to be paid. Executive
shall not
pay such claim prior to the expiration of the 30-day period
following the date
on which Executive gives such notice to the Company (or such
shorter period
ending on the date that any payment of taxes with respect to such
claim is due).
If the Company notifies Executive in writing prior to the
expiration of such
period that it desires to contest such claim, Executive shall:
(i) give the Company any information reasonably requested by
the
Company relating to such claim;
(ii) take such action in connection with contesting such claim as
the
Company shall reasonably request in writing from time to time,
including,
without limitation, accepting legal representation with respect to
such
claim by an attorney reasonably selected by the Company and
reasonably
satisfactory to Executive;
(iii) cooperate with the Company in good faith in order to
effectively
contest such claim; and
(iv) permit the Company to participate in any proceedings relating
to
such
claim;
provided, however, that the Company shall bear and pay directly all
costs and
expenses (including, but not limited to, additional interest and
penalties and
related legal, consulting or other similar fees) incurred in
connection with
such contest and shall indemnify and hold Executive harmless, on an
after-tax
basis, for any Excise Tax or other tax (including interest and
penalties with
respect thereto) imposed as a result of such representation and
payment of costs
and expenses. All such costs and expenses incurred due to a tax
audit or
litigation addressing the existence of or amount of a tax liability
under this
Section 5 shall be paid by the Company within thirty (30) days of
the date
payment of such expenses is due or if such payment is subject to
the Delayed
Payment Date, on the Delayed Payment Date, if later, but in any
event not later
than (A) December 31 of the year following the year in which the
taxes are
remitted to the taxing authority, or (B) where as a result of such
audit or
litigation no taxes are remitted, December 31 of the year following
the year in
which the audit is complete or there is a final and nonappealable
settlement or
other resolution of the litigation. Any Gross-Up Payment as a
result of any
Excise Tax or other tax (including interest and penalties with
respect thereto)
imposed shall be paid at the time of imposition of such Excise Tax
or other tax
or if such amount is subject to the Delayed Payment Date, on the
Delayed Payment
Date, if later.
(d)
The Company shall control all proceedings taken in connection with
such
contest and, at its sole option, may pursue or forego any and all
administrative
appeals, proceedings, hearings and conferences with the taxing
authority in
respect of such claim and may, at its sole option, either direct
Executive to
pay the tax claimed and sue for a refund or contest the claim in
any permissible
manner, and Executive agrees to prosecute such contest to a
determination before
any administrative tribunal, in a court of initial jurisdiction and
in one or
more appellate courts, as the Company shall determine; provided,
however, that
if the Company directs Executive to pay such claim and sue for a
refund, the
Company shall reimburse the Executive the amount of the claimed tax
within five
(5) days of remittance of such amount to the Internal Revenue
Service or, if
such reimbursement is subject to the Delayed Payment Date, on the
Delayed
Payment Date, if later and shall indemnify and h
