EXECUTION COPY
EXHIBIT 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is dated as of this
August 24, 2006, between Belden CDT Inc., a Delaware corporation (the
"COMPANY"), and Gray Benoist (the "EXECUTIVE").
WITNESSETH:
WHEREAS, the Company desires to employ Executive as its Vice President and
Chief Financial Officer, and Executive desires to accept such employment; and
WHEREAS, the Company and Executive desire to enter into this Agreement to
set forth the terms of Executive's employment by the Company;
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. This Agreement shall be effective on the date hereof
and the initial term of Executive's employment with the Company shall commence
on such date as the Board and Executive agree, but not later than August 24,
2006 (the "EFFECTIVE
DATE") and 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. Commencing on the Effective Date, the Company shall pay
Executive a base salary (the "BASE SALARY") at an annual rate of $360,000,
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 BONUS. Commencing on the Effective Date, Executive shall be
eligible to participate in the Company's Management Incentive Plan and any
successor annual bonus plans. Executive shall have the opportunity to earn an
annual target bonus, measured against performance criteria to be determined by
the Board (or a committee thereof), of at least 85% of Base Salary. Executive
will receive a pro-rata bonus for fiscal 2006 equal to the bonus earned by
Executive for fiscal 2006 based upon actual Company and individual performance
multiplied by a fraction, the numerator of which is the number of days during
the period between the Effective Date and December 31, 2006, and the denominator
of which is 365.
5. EQUITY AWARDS.
(a) INDUCEMENT AWARDS.
(i) The Board or the Committee shall, in accordance with the form
of award attached hereto as Exhibit A, award Executive as of the Effective
Date such number of restricted stock units (the "INDUCEMENT RSUS") as
equals 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.
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(ii) The Board or the Committee shall, in accordance with the
form of award attached hereto as Exhibit B, 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, in accordance with the
form of award attached hereto as Exhibit C. 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.
(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
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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.
(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.
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(d) RELOCATION. Executive will relocate his residence to the vicinity
of the Company's headquarters within 2 years following the Effective Date.
Executive shall be entitled to relocation benefits in accordance with the
Company's relocation policy; provided, (i) the Company shall extend the period
for which Executive shall be eligible for reimbursement of his temporary housing
expenses to 120 days and (ii) 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 earlier of (A) 2 years following the
Effective Date, or (B) the date that Executive relocates the residence of
Executive and Executive's family to the vicinity of the Company's headquarters.
(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.
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
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.
(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:
(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 relocation expenses in accordance with Section
6(d) (collectively, "ACCRUED OBLIGATIONS"). Accrued Obligations payable
under clause (A) shall be payable within fifteen (15) days following
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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, and any restricted
stock units to be awarded with respect to Inducement PSUs shall be fully
vested immediately upon award. If Executive's termination of employment
occurs prior to 2007, then restricted stock units shall be awarded with
respect to Inducement PSUs based upon performance for all of calendar year
2006.
(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.
(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);
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(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) 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 payroll installments over a
period of twelve (12) months;
(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, and any restricted
stock units to be awarded with respect to Inducement PSUs shall be fully
vested immediately upon award. If Executive's termination of employment
occurs prior to 2007, then restricted stock units shall be awarded with
respect to Inducement PSUs based upon performance for all of calendar year
2006.
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 D 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.
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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 individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the 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
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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) INDUCEMENT AWARDS. Upon the occurrence of a Change in Control of
the Company, if Executive is employed by the Company at the time of such Change
in Control, the Inducement Awards, to the extent not vested, shall immediately
vest in full. Any restricted stock units awarded with respect to Inducement PSUs
based on achievement of applicable performance targets shall become immediately
fully vested, and any restricted stock units to be awarded with respect to
Inducement PSUs based on achievement of applicable performance targets shall be
fully vested immediately upon award, in each case, if Executive is employed by
the Company at the time of such Change in Control.
(c) 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 if Executive's employment is
voluntarily terminated by Executive for Good Reason, in either case only in
connection with the occurrence of a Change in Control or during the period
commencing on the occurrence of a Change in Control of the Company and ending on
the second anniversary of the date of the Change in Control (the "PROTECTION
PERIOD"), 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 target
performance 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;
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(iv) A lump sum severance payment in the aggregate amount equal
to the product of (A) the sum of (1) Executive's highest Base Salary during
the Protection Period plus (2) his annual target bonus multiplied by (B)
two (2);
(v) Subject to Executive's continued co-payment of premiums,
continued participation for two (2) years 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; and
(vi) All of Executive's unvested Long-Term Awards shall become
immediately fully vested. All then-unexercised stock options shall be
exercisable for the lesser of one year following the date of termination or
the exercise period stated in the award agreement. All then-unexercised
stock-settled or other stock appreciation rights shall be exercisable for
the lesser of one year following the date of termination or the exercise
period stated in the award agreement to the extent permissible under the
applicable award agreement and plan.
(d) EXCISE TAX.
(i) If it is determined that any amount, right or benefit paid or
payable (or otherwise provided or to be provided) to the Executive by the
Company or any of its affiliates under this Agreement or any other plan,
program or arrangement under which Executive participates or is a party,
other than amounts payable under this Section 10(d), (collectively, the
"PAYMENTS"), would constitute an "excess parachute payment" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "CODE"), subject to the excise tax imposed by Section 4999 of the
Code, as amended from time to time (the "EXCISE TAX"), and the present
value of such Payments (calculated in a manner consistent with that set
forth in the applicable regulations promulgated under Section 280G of the
Code) is equal to or less than 110% of the threshold at which such amount
becomes an "excess parachute payment," then the amount of the Payments
payable to the Executive under this Agreement shall be reduced (a
"REDUCTION") to the extent necessary so that no portion of such Payments
payable to the Executive is subject to the Excise Tax.
(ii) In the event it shall be determined that the amount of the
Payments payable to the Executive is more than 110% greater than the
threshold at which such amount becomes an "excess parachute payment," then
the Executive shall be entitled to receive an additional payment from the
Company (a "GROSS-UP PAYMENT") in an amount such that, after payment by the
Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income and
employment taxes and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
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(iii) All determinations required to be made under this Section
10(d), including whether and when a Gross-Up Payment or a Reduction is
required, the amount of such Gross-Up Payment or Reduction and the
assumptions to be utilized in arriving at such determination, shall be made
by an independent, nationally recognized accounting firm mutually
acceptable to the Company and the Executive (the "AUDITOR"); provided that
in the event a Reduction is determined to be required, the Executive may
determine which Payments shall be reduced in order to comply with the
provisions of this Section 10(d). The Auditor shall promptly provide
detailed supporting calculations to both the Company and Executive
following any determination that a Reduction or Gross-Up Payment is
necessary. All fees and expenses of the Auditor shall be paid by the
Company. Any Gross-Up Payment, as determined pursuant to this Section
10(d), shall be paid by the Company to the Executive within five (5) days
of the receipt of the Auditor's determination. All determinations made by
the Auditor shall be binding upon the Company and the Executive; provided
that if, notwithstanding the Auditor's initial determination, the Internal
Revenue Service (or other applicable taxing authority) determines that an
additional Excise Tax is due with respect to the Payments, then the Auditor
shall recalculate the amount of the Gross-Up Payment or Reduction Amount,
if applicable, based upon the determinations made by the Internal Revenue
Service (or other applicable taxing authority) after taking into account
any additional interest and penalties (the "RECALCULATED AMOUNT") and the
Company shall pay to the Executive the excess of the Recalculated Amount
over the Gross-Up Payment initially paid to the Executive or the amount of
the Payments after the Reduction, as applicable, within five (5) days of
the receipt of the Auditor's recalculation of the Gross-Up Payment.
11. LONG-TERM AWARDS. All of Executive's stock options, stock appreciation
rights, restricted stock units, performance share units and any other long-term
incentive awards granted under any long-term incentive plan of the Company,
whether granted before or after the Effective Date (collectively, "LONG-TERM
AWARDS"), shall remain in effect in accordance with their terms and conditions,
including with respect to the consequences of the termination of Executive's
employment or a Change in Control, and shall not be in any way amended, modified
or affected by this Agreement except as provided in Section 10(c)(vi) and except
as hereinafter provided. Upon termination of Executive's employment by the
Company for Cause, all vested Long-Term Awards will be immediately forfeited.
Upon a voluntary resignation by Executive for any reason at any time other than
during a Protection Period or by Executive without Good Reason during a
Protection Period, all vested Long-Term Awards will remain exercisable for
ninety (90) days following the effective date of such termination of employment.
Upon any termination by the Company for Cause, by the Executive for any reason
at any time other than during a Protection Period or by Executive without Good
Reason during a Protection Period, all unvested Long-Term Awards will be
immediately forfeited. The provisions of this Section 11 shall not apply to
Executive's Inducement Awards and shall not apply to any restricted stock units
awarded with respect to Inducement PSUs.
12. EXECUTIVE COVENANTS.
(a) CONFIDENTIALITY. Executive agrees that Executive shall not,
commencing on the date hereof and at all times thereafter, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of Executive's employment and for the benefit
of the Company, any nonpublic, proprietary or
12
confidential information, knowledge or data relating to the Company, any of its
subsidiaries, affiliated companies or businesses, which shall have been obtained
by Executive during Executive's employment by the Company. The foregoing shall
not apply to information that (i) was known to the public prior to its
disclosure to Executive; (ii) becomes known to the public subsequent to
disclosure to Executive through no wrongful act of Executive or any
representative of Executive; or (iii) Executive is required to disclose by
applicable law, regulation or legal process (provided that Executive provides
the Company with prior notice of the contemplated disclosure and reasonably
cooperates with the Company at its expense in seeking a protective order or
other appropriate protection of such information). Notwithstanding clauses (i)
and (ii) of the preceding sentence, Executive's obligation to maintain such
disclosed information in confidence shall not terminate where only portions of
the information are in the public domain.
(b) NONSOLICITATION. Commencing on the date hereof, and continuing
during Executive's employment with the Company and for the twelve (12) month
period following termination of Executive's employment for any reason (a
twenty-four (24) month post-employment period in the event of a termination of
Executive's employment for any reason at any time during a Protection Period)
("RESTRICTED PERIOD"), Executive agrees that Executive shall not, without the
prior written consent of the Company, directly or indirectly, individually or on
behalf of any other person, firm, corporation or other entity: (i) solicit,
recruit or employ (whether as an employee, officer, director, agent, consultant
or independent contractor) any person who was or is at any time during the six
(6) months preceding termination of Executive's employment an employee,
representative, officer or director of the Company; (ii) take any action to
encourage or induce any employee, representative, officer or director of the
Company to cease their relationship with the Company for any reason; or (iii)
knowingly solicit, aid or induce any customer of the Company or any of its
subsidiaries or affiliates to purchase goods or services then sold by the
Company or any of its subsidiaries or affiliates from another person, firm,
corporation or other entity or assist or aid any other persons or entity in
identifying or soliciting any such customer.
(c) NONCOMPETITION. Executive acknowledges that Executive performs
services of a unique nature for the Company that are irreplaceable, and that
Executive's performance of such services to a competing business will result in
irreparable harm to the Company. Accordingly, during the Restricted Period,
Executive agrees that Executive shall not, directly or indirectly, own, manage,
operate, control, be employed by (whether as an employee, consultant,
independent contractor or otherwise, and whether or not for compensation) or
render services to any person, firm, corporation or other entity, in whatever
form, engaged in any business of the same type as any business in which the
Company or any of its subsidiaries or affiliates is engaged on the date of
termination or in which they have proposed, within twelve (12) months prior to
such date, to be engaged in on or after such date at any time during the
Restricted Period, in any locale of any country in which the Company conducts
business. This Section 12(c) shall not prevent Executive from owning not more
than two percent (2%) of the total shares of all classes of stock outstanding of
any publicly held entity engaged in such business.
(d) NONDISPARAGEMENT. Each of Executive and the Company (for purposes
hereof, "the Company" shall mean only (i) the Company by press release or other
formally released announcement and (ii) the executive officers and directors
thereof and not any other employees) agrees not to make any public statements
that disparage the other party, or in
13
the case of the Company, its respective affiliates, employees, officers,
directors, products or services. Notwithstanding the foregoing, statements made
in the course of sworn testimony in administrative, judicial or arbitral
proceedings (including, without limitation, depositions in connection with such
proceedings) shall not be subject to this Section 12(d). Executive's provision
shall also not cover normal competitive statements which do not cite Executive's
employment by the Company.
(e) RETURN OF COMPANY PROPERTY AND RECORDS. Executive agrees that upon
termination of Executive's employment, for any cause whatsoever, Executive will
surrender to the Company in good condition (reasonable wear and tear excepted)
all property and equipment belonging to the Company and all records kept by
Executive containing the names, addresses or any other information with regard
to customers or customer contacts of the Company, or concerning any proprietary
or confidential information of the Company or any operational, financial or
other documents given to Executive during Executive's employment with the
Company.
(f) COOPERATION. Executive agrees that, following termination of
Executive's employment for any reason, Executive shall upon reasonable advance
notice, and to the extent it does not interfere with previously scheduled travel
plans and does not unreasonably interfere with other business activities or
employment obligations, assist and cooperate with the Company with regard to any
matter or project in which Executive was involved during Executive's employment,
including any litigation. The Company shall compensate Executive for reasonable
expenses incurred in connection with such cooperation and assistance.
(g) ASSIGNMENT OF INVENTIONS. Executive will promptly communicate and
disclose in writing to the Company all inventions and developments including
software, whether patentable or not, as well as patents and patent applications
(hereinafter collectively called "INVENTIONS"), made, conceived, developed, or
purchased by Executive, or under which Executive acquires the right to grant
licenses or to become licensed, alone or jointly with others, which have arisen
or jointly with others, which have arisen or may arise out of Executive's
employment, or relate to any matters pertaining to, or useful in connection
therewith, the business or affairs of the Company or any of its subsidiaries.
Included herein as if developed during the employment period is any specialized
equipment and software developed for use in the business of the Company. All of
Executive's right, title and interest in, to, and under all such Inventions,
licenses, and right to grant licenses shall be the sole property of the Company.
Any such Inventions disclosed to anyone by Executive within one (1) year after
the termination of employment for any cause whatsoever shall be deemed to have
been made or conceived by Executive during the Term. As to all such Inventions,
Executive will, upon request of the Company execute all documents which the
Company deems necessary or proper to enable it to establish title to such
Inventions or other rights, and to enable it to file and prosecute applications
for letters patent of the United States and any foreign country; and do all
things (including the giving of evidence in suits and other proceedings) which
the Company deems necessary or proper to obtain, maintain, or assert patents for
any and all such Inventions or to assert its rights in any Inventions not
patented.
(h) EQUITABLE RELIEF AND OTHER REMEDIES. The parties acknowledge and
agree that the other party's remedies at law for a breach or threatened breach
of any of the provisions of this Section 12 would be inadequate and, in
recognition of this fact, the
14
parties agree that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the other party, without posting any bond,
shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, a temporary or permanent injunction or
any other equitable remedy which may then be available.
(i) REFORMATION. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 12 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
(j) SURVIVAL OF PROVISIONS. The obligations of Executive set forth in
this Section 12 shall survive the termination of Executive's employment by the
Company and the termination or expiration of this Agreement and shall be fully
enforceable thereafter.
13. BENEFICIARY. If Executive dies prior to receiving all of the amounts
payable to him in accordance with the terms and conditions of this Agreement,
such amounts shall be paid to the beneficiary ("Beneficiary") designated by
Executive in writing to the Company during Executive's lifetime, or if no such
Beneficiary is designated, to Executive's spouse, but if Executive is not
survived by a spouse then to Executive's estate. Such payments shall be made in
a lump sum to the extent so payable to Executive and, to the extent not so
payable in a lump sum, in accordance with the terms of this Agreement.
Executive, without the consent of any prior Beneficiary, may change his
designation of Beneficiary or Beneficiaries at any time or from time to time by
a submitting to Company a new designation in writing. Notwithstanding the
preceding provisions of this Section 13, any beneficiary provisions of any
employee benefit plan or program (including for the purpose, but not limited to,
the Company's Long-Term Performance Incentive Plan and award agreements
thereunder), shall apply for purposes of determining Executive's beneficiary
under any such employee benefit plan or program.
14. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto. Except
as provided in Section 14(b) below, no party may assign or delegate any rights
or obligations hereunder without first obtaining the written consent of the
other party hereto.
(b) The Company shall assign this Agreement to any successor to all or
substantially all of the business or assets of the Company provided that the
Company shall require such successor to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place and shall
deliver a copy of such assignment to Executive.
15. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given (a) on the date of delivery if delivered by hand,
(b) on the first business day following the date of deposit if delivered by
guaranteed overnight delivery service, or (d) on the fourth business day
following the date delivered or mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
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If to Executive:
At the address shown on the records of the Company
If to the Company:
Belden CDT Inc.
7701 Forsyth Boulevard
Suite 800
St. Louis, Missouri 63105
Attn: General Counsel
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
16. SECTION HEADINGS; INCONSISTENCY. The section headings used in this
Agreement are included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement. In the event of any
inconsistency between this Agreement and any other agreement (including but not
limited to any option, long-term incentive or other equity award agreement),
plan, program, policy or practice of the Company, the terms of this Agreement
shall control.
17. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
18. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement, other than injunctive relief under Section 12(h) hereof or
damages for breach of Section 12, shall be settled exclusively by arbitration,
conducted before a single arbitrator in St. Louis, Missouri, administered by the
American Arbitration Association ("AAA") in accordance with its Commercial
Arbitration Rules then in effect. The single arbitrator shall be selected by the
mutual agreement of the Company and Executive, unless the parties are unable to
agree to an arbitrator, in which case, the arbitrator will be selected under the
procedures of the AAA. The arbitrator will have the authority to permit
discovery and to follow the procedures that Executive or she determines to be
appropriate. The arbitrator will have no power to award consequential (including
lost profits), punitive or exemplary damages. The decision of the arbitrator
will be final and binding upon the parties hereto. Judgment may be entered on
the arbitrator's award in any court having jurisdiction. Each party shall bear
its own legal fees and costs and equally divide the forum fees and cost of the
arbitrator (unless otherwise awarded by the arbitrator).
19. INDEMNIFICATION; LIABILITY INSURANCE. The Company and Executive shall
enter into the Company's standard form of indemnification agreement governing
his conduct as an officer and director of the Company.
20. AMENDMENTS; WAIVER. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and
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signed by Executive and such officer or director as may be designated by the
Board. No waiver by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
21. ENTIRE AGREEMENT; MISCELLANEOUS. This Agreement together with all
exhibits hereto sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware without regard to its
conflicts of law principles. The descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement. The use of the word
"including" in this Agreement shall be by way of example rather than by
limitation and the word "or" shall be inclusive and not exclusive.
22. CODE SECTION 409A. It is intended that any amounts payable under this
Agreement and the Company's and Executive's exercise of authority or discretion
hereunder shall comply with the provisions of Section 409A of the Code and the
treasury regulations relating thereto so as not to subject Executive to the
payment of interest and tax penalty which may be imposed under Section 409A. In
furtherance of this interest, anything to the contrary herein notwithstanding,
no amounts shall be payable to Executive before such time as such payment fully
complies with the provisions of Section 409A and, to the extent that any
regulations or other guidance issued under Section 409A after the date of this
Agreement would result in Executive being subject to payment of interest and tax
penalty under Section 409A, the parties agree to amend this Agreement in order
to bring this Agreement into compliance with Section 409A.
23. FULL SETTLEMENT. Except as set forth in this Agreement, the Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including, without limitation, set-off, counterclaim, recoupment, defense or
other claim, right or action which the Company may have against Executive or
others, except to the extent any amounts are due the Company or its subsidiaries
or affiliates pursuant to a judgment against Executive. In no event shall
Executive be obliged to seek other employment or take any other action by way of
mitigation of the amounts payable to Executive under any of the provisions of
this Agreement, nor shall the amount of any payment hereunder be reduced by any
compensation earned by Executive as a result of employment by another employer,
except as set forth in this Agreement.
24. REPRESENTATION. Executive represents and warrants to the Company that
Executive has the legal right to enter into this Agreement and to perform all of
the obligations on Executive's part to be performed hereunder in accordance with
its terms and that Executive is not a party to any agreement or understanding,
written or oral, which prevents Executive from entering into this Agreement or
performing all of Executive's obligations hereunder.
17
25. WITHHOLDING. The Company may withhold from any and all amounts payable
under this Agreement such federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
26. AGREEMENT OF THE PARTIES. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto. Neither Executive nor the Company shall be entitled to any presumption
in connection with any determination made hereunder in connection with any
arbitration, judicial or administrative proceeding relating to or arising under
this Agreement.
27. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
BELDEN CDT INC.
By: /s/ JOHN STROUP
------------------------------------
John Stroup, Chief Executive Officer
/s/ GRAY BENOIST
----------------------------------------
Gray Benoist
18
EXHIBIT A
BELDEN CDT INC.
RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this "AGREEMENT") is effective
as of August 24, 2006 (the "GRANT DATE") by and between Belden CDT Inc., a
Delaware corporation (the "COMPANY") and Gray Benoist ("GRANTEE").
WHEREAS, pursuant to the Executive Employment Agreement between the Grantee
and the Company dated August 24, 2006, (the "EMPLOYMENT AGREEMENT") the Grantee,
by action of the Board of Directors of the Company (the "BOARD"), or by action
of the Compensation Committee (the "COMMITTEE") of the Board, is to receive a
grant of 9,090 restricted stock units ("RSUS") representing 9,090 shares (the
"SHARES") of the Company's common stock, $0.01 par value per share (the "COMMON
STOCK"), subject to the provisions of the Employment Agreement, and to enter
into a Restricted Stock Unit Award Agreement in the form hereof;
NOW THEREFORE, the Company and the Grantee hereby agree as follows:
1. GRANT OF RSUS. The Company hereby grants to the Grantee on the Grant
Date 9,090 RSUs. Each RSU represents the right to receive one (1) Share. Each
RSU shall vest and become nonforfeitable ("VEST") in accordance with Section 2
below. The Company shall hold the RSUs in book-entry form. The Grantee shall
have no direct or secured claim in any specific assets of the Company or the
Shares of Common Stock to be issued to Grantee under Section 4(a) hereof and
will have the status of a general unsecured creditor of the Company. The RSUs
are granted under the Company's 2001 Long-Term Performance Incentive Plan (the
"PLAN") and shall be subject to the terms and conditions of the Plan.
Capitalized terms used in this Agreement without further definition shall have
the same meanings given to such terms in the Plan.
2. VESTING.
(a) Generally. Subject to the acceleration of the Vesting pursuant to
Section 2(b), (c) or (e) below, or the forfeiture and termination of the RSUs
pursuant to Section 2(d) below, all of the RSUs shall Vest on the fifth (5th)
anniversary of the Grant Date. All Vested RSUs shall be paid to the Grantee as
provided in Section 4 hereof.
(b) Death, Disability or Retirement. If Grantee terminates employment
with the Company on account of death or Disability (as defined in Section 7(a)
of the Employment Agreement), or if after one year from the Grant Date Grantee
retires from employment with the Company under any Company retirement plan then
in effect, then any and all unvested RSUs shall immediately Vest in full.
(c) Termination by Company Without Cause. If Grantee's employment with
the Company is terminated by the Company without Cause (as defined in Section
7(c) of the
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Employment Agreement), other than for Disability, prior to Grantee's attainment
of age 65, then any and all unvested RSUs shall immediately Vest in full.
(d) Other Employment Termination. If the Grantee or the Company
terminates the Grantee's employment other than under Section 2(b) or (c) hereof,
then any and all RSUs that are not Vested at such time shall be forfeited,
cancelled and terminated upon such termination.
(e) Change of Control. If Grantee is employed at the time of a Change
in Control of the Company (as defined in Section 10(a) of the Employment
Agreement), then upon such Change in Control, any and all unvested RSUs shall
immediately Vest in full.
3. NO TRANSFER OR ASSIGNMENT OF RSUS; RESTRICTIONS ON SALE. Except as
otherwise provided in this Agreement, the RSUs and the rights and privileges
conferred thereby shall not be sold, pledged or otherwise transferred (whether
by operation of law or otherwise) and shall not be subject to sale under
execution, attachment, levy or similar process until the Shares underlying the
RSUs are delivered to the Grantee or his designated representative. The Grantee
agrees not to sell any Shares at any time when applicable laws or Company
policies prohibit a sale. This restriction shall apply as long as the Grantee is
an employee of the Company.
4. DELIVERY OF SHARES.
(a) Issuance of Shares. As of the date in which the RSUs Vest, the
Company shall issue to the Grantee a stock certificate (or register Shares of
Common Stock in book-entry form) representing a number of Shares of Common Stock
equal to the number of RSUs then vested.
(b) Withholding Taxes. At the time Shares of Common Stock are issued
to the Grantee, the Company shall satisfy the statutory Federal, state and local
withholding tax obligation (including the FICA and Medicare tax obligation)
required by law with respect to the distribution of Shares from one or more of
the following methods, as the Grantee elects: (i) the Company shall withhold
cash compensation then accrued and payable to the Grantee of such required
withholding amount, (ii) the Grantee may tender a check or other payment of cash
to the Company of such required withholding amount, or (iii) by withholding from
Shares issuable to the Grantee hereunder having an aggregate fair market value
equal to the amount of such required withholding.
5. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued unless and until
the Company has determined that:
(a) It and the Grantee, at Company's expense, have taken any actions
required to register the Shares under the Securities Act of 1933, as amended or
to perfect an exemption from the registration requirements thereof;
(b) Any applicable listing requirement of any stock exchange or other
securities market on which the Common Stock is listed has been satisfied; and
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(c) Any other applicable provision of state or federal law has been
satisfied.
6. MISCELLANEOUS PROVISIONS.
(a) Rights as a Stockholder. Neither the Grantee nor the Grantee's
representative shall have any rights as a stockholder with respect to any Shares
underlying the RSUs until the date that the Company is obligated to deliver such
Shares to the Grantee or the Grantee's representative.
(b) Dividends. Between the Grant Date and the date of Vesting of the
RSUs (the "ACCRUAL PERIOD"), any dividends or distributions payable with respect
to the number of Shares equal to the number of RSUs held by the Grantee shall be
accumulated and deferred until the Vesting of the RSUs. After such Vesting of
the RSUs, the Company shall promptly distribute to the Grantee all such
dividends and distributions accrued during the Accrual Period.
(c) No Retention Rights. Nothing in this Agreement shall confer upon
the Grantee any right to continue in the employment or service of the Company
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Company or of the Grantee, which rights are hereby
expressly reserved by each, to terminate his employment or service at any time
and for any reason, with or without cause.
(d) Employment by Subsidiary, etc. For purposes of this Agreement,
employment by a parent or subsidiary of or a successor to the Company shall be
considered employment by the Company.
(e) Anti-Dilution. In the event that any change in the outstanding
Shares of Common Stock of the Company (including an exchange of Common Stock for
stock or other securities of another corporation) occurs by reason of a Common
Stock dividend or split, recapitalization, merger, consolidation, combination,
exchange of Shares or other similar corporate changes, other than for
consideration received by the Company therefor, the number of RSUs awarded
hereunder, and the number of Shares distributable pursuant to Vested RSUs, shall
be appropriately adjusted by the Committee whose determination shall be
conclusive, final and binding; provided, however that fractional Shares shall be
rounded to the nearest whole share. In the event of any other change in the
Common Stock, the Committee shall in its sole discretion determine whether such
change equitably requires a change in the number or type of Shares subject to
RSUs and any adjustment made by the Committee shall be conclusive, final and
binding.
(f) Incorporation of Plan. The provisions of the Plan are incorporated
by reference into these terms and conditions.
(g) Inconsistency. To the extent any terms and conditions herein
conflict with the terms and conditions of the Plan, the terms and conditions of
the Plan shall control. In the event of any inconsistency between either this
Agreement or the Plan, and the Employment Agreement, the Employment Agreement
shall control.
(h) Notices. Any notice required by the terms of this Agreement shall
be given in writing and shall be deemed effective upon personal delivery, upon
deposit with the
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United States Postal Service, by registered or certified mail, with postage and
fees prepaid or upon deposit with a reputable overnight courier. Notice shall be
addressed to the Company at its principal executive office and to the Grantee at
the address that he most recently provided to the Company.
(i) Entire Agreement; Amendments. This Agreement, together with the
Employment Agreement, constitutes the entire contract between the parties hereto
with regard to the subject matter hereof. This Agreement and the Employment
Agreement supersede any other agreements, representations or understandings
(whether oral or written and whether express or implied) which relate to the
subject matter hereof. The Committee shall have authority, subject to the
express provisions of the Plan, to interpret this Agreement and the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, to
modify the terms and provisions of this Agreement, and to make all other
determinations in the judgment of the Committee necessary or desirable for the
administration of the Plan, provided no such action may be contrary to the
provisions of the Employment Agreement or may otherwise modify this Agreement in
a manner adverse to Grantee without his prior written consent. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in the
Plan or in this Agreement in the manner and to the extent it shall deem
necessary or desirable to carry it into effect. All action by the Committee
under the provisions of this paragraph shall be final, conclusive and binding
for all purposes.
(j) Choice of Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, as such laws are applied
to contracts entered into and performed in such State, without giving effect to
the choice of law provisions thereof.
(k) Successors.
(i) This Agreement is personal to the Grantee and, except as
otherwise provided in Section 3 above, shall not be assignable by the Grantee
otherwise than by will or the laws of descent and distribution, without the
written consent of the Company. This Agreement shall inure to the benefit of and
be enforceable by the Grantee's legal representatives.
(ii) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors. It shall not be assignable except in
connection with the sale or other disposition of all or substantially all the
assets or business of the Company.
(l) Severability. If any provision of this Agreement for any reason
should be found by any court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality or enforceability of any remaining provision or portion
hereof, which remaining provision or portion hereof shall remain in full force
and effect as if this Agreement had been adopted with the invalid, illegal or
unenforceable provision or portion hereof eliminated.
(m) Headings. The headings, captions and arrangements utilized in this
Agreement shall not be construed to limit or modify the terms or meaning of this
Agreement.
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(n) Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
A-5
This Agreement is executed by the Company as of the date and year first
written above.
BELDEN CDT INC.
By: /s/ John Stroup
-----------------------------------
John Stroup
Title: Chief Executive Officer
The undersigned Grantee hereby acknowledges receipt of an executed original
of this Agreement and accepts the RSUs granted hereunder, and further agrees to
the terms and conditions hereinabove set forth.
/s/ Gray Benoist
----------------------------------------
Gray Benoist, Grantee
Date: August 25, 2006
A-6
EXHIBIT B
BELDEN CDT INC.
STOCK APPRECIATION RIGHT AWARD AGREEMENT
THIS STOCK APPRECIATION RIGHT AWARD AGREEMENT (this "AGREEMENT") is
effective as of August 24, 2006 (the "GRANT DATE") by and between Belden CDT
Inc., a Delaware corporation (the "COMPANY") and Gray Benoist ("GRANTEE").
WHEREAS, pursuant to the Executive Employment Agreement between the Grantee
and the Company dated August 24, 2006 (the "EMPLOYMENT AGREEMENT"), the Grantee,
by action of the Board of Directors of the Company (the "BOARD"), or by action
of the Compensation Committee (the "COMMITTEE") of the Board, is to receive a
grant of stock appreciation rights corresponding to 29,446 shares (the "SHARES")
of the Company's common stock, $0.01 par value per share (the "COMMON STOCK"),
subject to the provisions of the Employment Agreement, and is to enter into a
Stock Appreciation Right Award Agreement in the form hereof;
NOW THEREFORE, the Company and the Grantee hereby agree as follows:
1. GRANT OF SARS. The Company hereby grants to the Grantee, on the Grant
Date, stock appreciation rights corresponding to 29,446 Shares (such Stock
Appreciation Rights with respect to such number of Shares being the "SARS"). The
SARs have an exercise price of $33.00 per Share (the "EXERCISE PRICE"), which is
the fair market value of a Share on the Grant Date (such fair market value
representing the average of the high and low publicly-traded price of a Share on
the Grant Date). The SARs shall vest and become exercisable ("VEST") in
accordance with Section 2 below. The Grantee shall have no direct or secured
claim in any specific assets of the Company or the Shares to be issued to
Grantee under Section 4 hereof and will have the status of a general unsecured
creditor of the Company. The SARs are granted under the Company's 2001 Long-Term
Performance Incentive Plan (the "PLAN") and shall be subject to the terms and
conditions of the Plan. Capitalized terms used in this Agreement without further
definition shall have the same meanings given to such terms in the Plan.
2. VESTING OF SARS. One-third (1/3) of the SARs shall Vest on the first
anniversary of the Grant Date, one-third (1/3) shall Vest on the second
anniversary of the Grant Date, and the remainder shall Vest on the third
anniversary of the Grant Date. Such vesting rights with respect to the SARs are
further subject to the following conditions:
(a) Employment. During the Grantee's lifetime, the SARs are exercisable
only by the Grantee, and, except as otherwise provided in clause (c)
below, only if the Grantee has remained continuously employed by the
Company from the Grant Date.
(b) Term of SARs. The SARs shall expire ten years following the Grant Date
(the period between the Grant Date and such expiration date being the
"SAR TERM"), or earlier if clause (c) of this Section 2 applies.
B-1
(c) Exceptions. Subject to the exceptions noted in subparts (i)-(v) below,
the SARs shall be forfeited, cancelled and terminated immediately if
the Grantee is no longer employed by the Company.
(i) Retirement. If after one year from the Grant Date the Grantee
retires from employment with the Company in accordance with any
Company retirement plan then in effect, the Grantee may at any
time within the three-year period following such retirement (but
within the SAR Term) exercise all SARs, including those SARs that
had not previously vested which shall Vest upon retirement. The
Grantee's right to exercise SARs upon retirement in such fashion
is expressly conditioned on the Grantee's furnishing to the
Company a non-compete covenant (the form of which must be
reasonably acceptable to the Company) that would prevent the
Grantee from competing against the Company during such three-year
period following retirement (or, if shorter, through the end of
the SAR Term). The non-compete covenant will contain a provision
that will require the Grantee to pay the Company damages if the
Grantee breaches such non-compete covenant. The damages shall
include any gain the Grantee may receive from the exercise of an
SAR in violation of such non-compete covenant.
(ii) Disability. If the Grantee is no longer with the Company due to
Disability, the Grantee may at any time within one year following
the Grantee's leaving the Company (but within the SAR Term)
exercise all SARs, including those SARs that had not previously
vested which shall Vest upon the date of Disability.
(iii) Termination of Employment by Company Without Cause; Voluntary
Termination. If Grantee's employment with the Company is
terminated by the Company without Cause (as defined in Section
7(c) of the Employment Agreement) other than for Disability,
prior to Grantee's attainment of age 65, then Grantee may at any
time within one (1) year following Grantee's leaving the Company
(but within the SAR Term) exercise all SARs, including those SARs
that had not previously vested which shall Vest upon the date of
such termination of Grantee's employment. If after one year from
the Grant Date the Grantee voluntarily terminates the Grantee's
employment, the Grantee may at any time within ninety (90) days
following the Grantee's leaving the Company (but within the SAR
Term) exercise the Grantee's SARs to the extent the Grantee was
entitled to exercise such SARs prior to leaving the Company, but
not otherwise.
(iv) Death. If the Grantee dies while employed by the Company (or if
the Grantee were to die during the post-employment period covered
by Section 2(c)(ii) (Disability) above), the person entitled by
will or the applicable laws of descent and distribution may,
within one year from the Grantee's death (but within the SAR
Term), exercise the Grantee's SARs, including those SARs that had
not previously vested which shall Vest upon the date of death.
B-2
(v) Change in Control. If Grantee is employed at the time of a Change
in Control of the Company (as defined in Section 10(a) of the
Employment Agreement), then upon such Change in Control, any and
all unvested SARs shall immediately Vest in full. If, in the
event of a Change in Control of the Company, during the
Protection Period (as defined in Section 10(c) of the Employment
Agreement) and prior to Grantee's attainment of age 65, Grantee's
employment is involuntarily terminated by the Company without
Cause (and other than due to his Disability) or is voluntarily
terminated by the Grantee for Good Reason (as defined in Section
7(e) of the Employment Agreement), the Grantee may at any time
within one (1) year following such termination of employment (but
within the SAR Term) exercise all SARs.
3. NON-ASSIGNMENT OF RIGHTS. The Grantee may not assign or transfer any
SARs except by will or by the laws of descent and distribution or by a qualified
domestic relations order.
4. EXERCISE OF SARS.
(a) Exercise. Vested SARs may be exercised by following the procedures
the Company has in place at the time of exercise. For Vested SARs to be
exercised by a person other than the Grantee (as provided above), the Company
must have appropriate documentation evidencing the rights of the Grantee's
beneficiary(s). The Grantee shall designate the number of Shares subject to the
Vested SARs that are being exercised, and upon exercise shall be entitled to
receive that number of Shares having an aggregate fair market value equal to the
excess of the fair market value of one Share, at the time of such exercise, over
the Exercise Price, multiplied by the number of Shares subject to the SARs which
are so exercised. For purposes of this Section 4(a), fair market value shall be
determined by calculating the average of the high and low publicly-traded price
of a Share on the date of exercise.
(b) Issuance of Shares. The Company shall issue Shares to the Grantee
upon exercise of SARs pursuant to Section 4(a) above by issuing to the Grantee a
stock certificate (or register Shares of Common Stock in book-entry form)
representing a number of requisite number of Shares. No fractional shares may be
delivered, but in lieu thereof a cash or other adjustment shall be made as
determined by the Committee in its discretion.
(c) Withholding Taxes. At the time Shares of Common Stock are issued
to the Grantee, the Company shall satisfy the statutory Federal, state and local
withholding tax obligation (including the FICA and Medicare tax obligation)
required by law with respect to the distribution of Shares from one or more of
the following methods, as the Grantee elects: (i) the Company shall withhold
cash compensation then accrued and payable to Grantee of such required
withholding amount, (ii) the Grantee may tender a check or other payment of cash
to the Company of such required withholding amount, or (iii) by withholding from
Shares issuable to the Grantee hereunder having an aggregate fair market value
equal to the amount of such required withholding.
5. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued unless and until
the Company has determined that:
B-3
(a) It and the Grantee, at Company's expense, have taken any actions
required to register the Shares under the Securities Act of 1933, as amended, or
to perfect an exemption from the registration requirements thereof;
(b) Any applicable listing requirement of any stock exchange or other
securities market on which the Common Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been
satisfied.
6. MISCELLANEOUS PROVISIONS.
(a) Rights as a Stockholder. Neither the Grantee nor the Grantee's
representative shall have any rights as a stockholder with respect to any Shares
subject to the SARs until the date that the Company is obligated to deliver
Shares to the Grantee or the Grantee's representative pursuant to Section 4
above, and then only with respect to the Shares so delivered.
(b) No Retention Rights. Nothing in this Agreement shall confer upon
the Grantee any right to continue in the employment or service of the Company
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Company or of the Grantee, which rights are hereby
expressly reserved by each, to terminate his employment or service at any time
and for any reason, with or without cause.
(c) Employment by Subsidiary, etc.. For purposes of this Agreement,
employment by a parent or subsidiary of or a successor to the Company shall be
considered employment by the Company.
(d) Anti-Dilution. In the event that any change in the outstanding
Shares of Common Stock of the Company (including an exchange of Common Stock for
stock or other securities of another corporation) occurs by reason of a Common
Stock dividend or split, recapitalization, merger, consolidation, combination,
exchange of Shares or other similar corporate changes, other than for
consideration received by the Company therefor, the number of Shares subject to
the SARs hereunder shall be appropriately adjusted by the Committee whose
determination shall be conclusive, final and binding; provided, however that
fractional Shares shall be rounded to the nearest whole share. In the event of
any other change in the Common Stock, the Committee shall in its sole discretion
determine whether such change equitably requires a change in the number or type
of Shares subject to the SARs and any adjustment made by the Committee shall be
conclusive, final and binding.
(e) Incorporation of Plan. The provisions of the Plan are incorporated
by reference into these terms and conditions.
(f) Inconsistency. To the extent any terms and conditions herein
conflict with the terms and conditions of the Plan, the terms and conditions of
the Plan shall control. In the event of any inconsistency between either this
Agreement or the Plan, and the Employment Agreement, the Employment Agreement
shall control.
B-4
(g) Notices. Any notice required by the terms of this Agreement shall
be given in writing and shall be deemed effective upon personal delivery, upon
deposit with the United States Postal Service, by registered or certified mail,
with postage and fees prepaid or upon deposit with a reputable overnight
courier. Notice shall be addressed to the Company at its principal executive
office and to the Grantee at the address that he most recently provided to the
Company.
(h) Entire Agreement; Amendments. This Agreement, together with the
Employment Agreement, constitutes the entire contract between the parties hereto
with regard to the subject matter hereof. This Agreement and the Employment
Agreement supersede any other agreements, representations or understandings
(whether oral or written and whether express or implied) which relate to the
subject matter hereof. The Committee shall have authority, subject to the
express provisions of the Plan, to interpret this Agreement and the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, to
modify the terms and provisions of this Agreement, and to make all other
determinations in the judgment of the Committee necessary or desirable for the
administration of the Plan, provided no such action may be contrary to the
provisions of the Employment Agreement or may otherwise modify this Agreement in
a manner adverse to Grantee without his prior written consent. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in the
Plan or in this Agreement in the manner and to the extent it shall deem
necessary or desirable to carry it into effect. All action by the Committee
under the provisions of this paragraph shall be final, conclusive and binding
for all purposes.
(i) Choice of Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, as such laws are applied
to contracts entered into and performed in such State, without giving effect to
the choice of law provisions thereof.
(j) Successors.
(i) This Agreement is personal to the Grantee and, except as
otherwise provided in Section 2 above, shall not be assignable by the Grantee
otherwise than by will or the laws of descent and distribution, without the
written consent of the Company. This Agreement shall inure to the benefit of and
be enforceable by the Grantee's legal representatives.
(ii) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors. It shall not be assignable except in
connection with the sale or other disposition of all or substantially all the
assets or business of the Company.
(k) Severability. If any provision of this Agreement for any reason
should be found by any court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality or enforceability of any remaining provision or portion
hereof, which remaining provision or portion hereof shall remain in full force
and effect as if this Agreement had been adopted with the invalid, illegal or
unenforceable provision or portion hereof eliminated.
(l) Headings. The headings, captions and arrangements utilized in this
Agreement shall not be construed to limit or modify the terms or meaning of this
Agreement.
B-5
(m) Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
B-6
This Agreement is executed by the Company as of the date and year first
written above.
BELDEN CDT INC.
By: /s/ John Stroup
------------------------------------
John Stroup
Title: Chief Executive Officer
The undersigned Grantee hereby acknowledges receipt of an executed original
of this Agreement and accepts the SARs granted hereunder, and further agrees to
the terms and conditions hereinabove set forth.
/s/ Gray Benoist
----------------------------------------
Gray Benoist, Grantee
Date: August 25, 2006
B-7
EXHIBIT C
BELDEN CDT INC.
PERFORMANCE SHARE AWARD AGREEMENT
THIS PERFORMANCE SHARE AWARD AGREEMENT (this "AGREEMENT") is effective as
of August 24, 2006 (the "GRANT DATE") by and between Belden CDT Inc., a Delaware
corporation (the "COMPANY") and Gray Benoist ("GRANTEE").
WHEREAS, pursuant to the Executive Employment Agreement between Grantee and
the Company dated August 24, 2006 (the "EMPLOYMENT AGREEMENT"), the Grantee, by
action of the Board of Directors of the Company (the "BOARD"), or by action of
the Compensation Committee (the "COMMITTEE") of the Board, is to receive a grant
of 15,151 performance share units ("PSUS") subject to the provisions of the
Employment Agreement and representing, subject to certain restrictions, a
certain number of shares (the "SHARES") of the Company's common stock, $0.01 par
value per share (the "COMMON STOCK"), such number to be based on the attainment
of performance objectives as provided below, and is to enter into a Performance
Share Award Agreement in the form hereof;
NOW THEREFORE, the Company and the Grantee hereby agree as follows:
1. GRANT OF PSUS. The Company hereby grants to the Grantee on the Grant
Date 15,151 PSUs. Each PSU represents the right to receive between zero (0) and
one and one-half (1.5) of a Restricted Stock Unit ("RSU"), depending on the
attainment of Company performance objectives in accordance with Section 2 below.
Each RSU in turn represents the right to receive one (1) Share, which RSUs shall
vest and become nonforfeitable ("VEST") in accordance with Section 3 below. The
Company shall hold any awarded RSUs in book-entry form. The Grantee shall have
no direct or secured claim in any specific assets of the Company or the Shares
of Common Stock to be issued to Grantee under Section 5(a) hereof and will have
the status of a general unsecured creditor of the Company. The PSUs and RSUs are
granted under the Company's 2001 Long-Term Performance Incentive Plan (the
"PLAN") and shall be subject to the terms and conditions of the Plan.
Capitalized terms used in this Agreement without further definition shall have
the same meanings given to such terms in the Plan.
2. PERFORMANCE OBJECTIVES.
(a) Award Period; Performance Objectives. The award period ("AWARD
PERIOD") during which performance shall be measured is calendar year 2006. The
Committee has established performance objectives for such Award Period based on
the attainment of 2006 financial performance goals. The financial performance
goals are those the Committee has established for the Company's 2006 annual cash
incentive plan. If Company performance during the Award Period is at 100% of
targeted objectives, then the Grantee shall be entitled to receive one (1) RSU
for each PSU. If Company performance during the Award Period is at 80% of
targeted objectives, then the Grantee shall be entitled to receive one-half (.5)
of an RSU for each PSU. If Company performance during the Award Period is at
120% of targeted objectives, then the Grantee shall be entitled to receive one
and one-half (1.5) of an RSU for each PSU. The
C-1
number of RSUs shall be prorated for performance between the foregoing
standards. If Company performance during the Award Period is at less than 80% of
targeted objectives, then the Grantee shall not be entitled to receive any RSUs
for the PSUs, and this Performance Share Award and the PSUs shall have no value
and shall be deemed forfeited, cancelled and terminated. After the Award Period,
the Committee shall determine the number (if any) of RSUs to be awarded for each
PSU based on Company performance during the Award Period, which determination
shall be final, conclusive and binding (the date on which the Committee makes
such determination is the "PERFORMANCE DETERMINATION DATE", and the RSUs that
are so awarded are the "AWARDED RSUS").
(b) Death or Disability During Award Period. If prior to the
Performance Determination Date and while employed by the Company the Grantee
dies or becomes Disabled (as defined in Section 7(a) of the Employment
Agreement) and leaves the Company, then the Grantee (or, as the case may be, the
person entitled by will or the applicable laws of descent and distribution)
shall, after the Award Period, be entitled to receive the RSUs that would
otherwise (but for such death or Disability) be awarded to the Grantee after the
Award Period pursuant to Section 2(a) above based upon performance for the
entire Award Period. Such Awarded RSUs shall immediately Vest in full.
(c) Termination by Company Without Cause. If prior to the Performance
Determination Date, Grantee's employment with the Company is terminated by the
Company without Cause (as defined in Section 7(c) of the Employment Agreement)
prior to Grantee's attainment of age 65 other than for Disability, then after
the Award Period Grantee shall be entitled to receive the RSUs that would
otherwise (but for such termination) be awarded to the Grantee after the Award
Period pursuant to Section 2(a) above based upon performance for the entire
Award Period. Such Awarded RSUs shall immediately Vest in full.
(d) Other Employment Termination Prior to Performance Determination
Date. If the Grantee or the Company otherwise terminates the Grantee's
employment, other than under Sections 2(b) or 2(c) prior to the Performance
Determination Date, any and all PSUs shall be forfeited, cancelled and
terminated upon such termination.
3. VESTING OF AWARDED RSUs.
(a) Generally. Subject to the acceleration of the Vesting pursuant to
Sections 2(b) or 2(c) above or Sections 3(b), 3(c) or 3(e) below, or the
forfeiture and termination of the Awarded RSUs pursuant to Section 3(d) below,
one-half (1/2) of the Awarded RSUs shall Vest on the first anniversary of the
Performance Determination Date, and the remaining one-half (1/2) shall Vest on
the second anniversary of the Performance Determination Date. All Vested Awarded
RSUs shall be paid to the Grantee as provided in Section 5 hereof.
(b) Death, Disability or Retirement. If, after the award of the
Awarded RSUs and while employed by the Company, the Grantee dies or becomes
Disabled (and leaves the Company) or retires from employment with the Company
under any Company retirement plan then in effect, then any and all unvested
Awarded RSUs shall immediately Vest in full.
C-2
(c) Termination by Company Without Cause. If Grantee's employment with
the Company is terminated by the Company without Cause prior to Grantee's
attainment of age 65 other than for Disability, then any and all unvested
Awarded RSUs shall immediately Vest in full.
(d) Other Employment Termination. If the Grantee or the Company
terminates the Grantee's employment other than under Sections 3(b) or 3(c) after
the award of the Awarded RSUs, any and all Awarded RSUs that are not Vested at
such time shall be forfeited, cancelled and terminated upon such termination.
(e) Change of Control. If Grantee is employed at the time of a Change
in Control of the Company (as defined in Section 10(a) of the Employment
Agreement), then upon such Change in Control, any and all unvested Awarded RSUs
shall immediately Vest in full.
4. NO TRANSFER OR ASSIGNMENT OF PSUS OR AWARDED RSUS; RESTRICTIONS ON SALE.
Except as otherwise provided in this Agreement, the PSUs, the Awarded RSUs and
the rights and privileges conferred thereby shall not be sold, pledged or
otherwise transferred (whether by operation of law or otherwise) and shall not
be subject to sale under execution, attachment, levy or similar process until
the Shares underlying the Awarded RSUs are delivered to the Grantee or his
designated representative. The Grantee agrees not to sell any Shares at any time
when applicable laws or Company policies prohibit a sale. This restriction shall
apply as long as the Grantee is an employee of the Company.
5. DELIVERY OF SHARES.
(a) Issuance of Shares. As of the date(s) on which the Awarded RSUs
Vest, the Company shall issue to the Grantee a stock certificate (or register
Shares of Common Stock in book-entry form) representing a number of Shares of
Common Stock equal to the number of Awarded RSUs then vested.
(b) Withholding Taxes. At the time Shares of Common Stock are issued
to the Grantee, the Company shall satisfy the statutory Federal, state and local
withholding tax obligation (including the FICA and Medicare tax obligation)
required by law with respect to the distribution of Shares from one or more of
the following methods, as the Grantee elects: (i) the Company shall withhold
cash compensation then accrued and payable to Grantee of such required
withholding amount, (ii) the Grantee may tender a check or other payment of cash
to the Company of such required withholding amount, or (iii) by withholding from
Shares issuable to the Grantee hereunder having an aggregate fair market value
equal to the amount of such required withholding.
6. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued unless and until
the Company has determined that:
(a) It and the Grantee, at Company's expense, have taken any actions
required to register the Shares under the Securities Act of 1933, as amended, or
to perfect an exemption from the registration requirements thereof;
C-3
(b) Any applicable listing requirement of any stock exchange or other
securities market on which the Common Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been
satisfied.
7. MISCELLANEOUS PROVISIONS.
(a) Rights as a Stockholder. Neither the Grantee nor the Grantee's
representative shall have any rights as a stockholder with respect to any Shares
underlying the Awarded RSUs until the date that the Company is obligated to
deliver such Shares to the Grantee or the Grantee's representative.
(b) Dividends. Between the Performance Determination Date and the date
of Vesting of the Awarded RSUs (the "ACCRUAL PERIOD"), any dividends or
distributions payable with respect to the number of Shares equal to the number
of Awarded RSUs held by the Grantee shall be accumulated and deferred until the
Vesting of the Awarded RSUs. After such Vesting of the Awarded RSUs, the Company
shall promptly distribute to the Grantee all such dividends and distributions
accrued during the Accrual Period.
(c) No Retention Rights. Nothing in this Agreement shall confer upon
the Grantee any right to continue in the employment or service of the Company
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Company or of the Grantee, which rights are hereby
expressly reserved by each, to terminate his employment or service at any time
and for any reason, with or without cause.
(d) Employment by Subsidiary, etc.. For purposes of this Agreement,
employment by a parent or subsidiary of or a successor to the Company shall be
considered employment by the Company.
(e) Anti-Dilution. In the event that any change in the outstanding
Shares of Common Stock of the Company (including an exchange of Common Stock for
stock or other securities of another corporation) occurs by reason of a Common
Stock dividend or split, recapitalization, merger, consolidation, combination,
exchange of Shares or other similar corporate changes, other than for
consideration received by the Company therefor, the number of Awarded RSUs
hereunder, and the number of Shares distributable pursuant to Vested Awarded
RSUs, shall be appropriately adjusted by the Committee whose determination shall
be conclusive, final and binding; provided, however that fractional Shares shall
be rounded to the nearest whole share. In the event of any other change in the
Common Stock, the Committee shall in its sole discretion determine whether such
change equitably requires a change in the number or type of Shares subject to
Awarded RSUs and any adjustment made by the Committee shall be conclusive, final
and binding.
(f) Incorporation of Plan. The provisions of the Plan are incorporated
by reference into these terms and conditions.
(g) Inconsistency. To the extent any terms and conditions herein
conflict with the terms and conditions of the Plan, the terms and conditions of
the Plan shall control. In the
C-4
event of any inconsistency between either this Agreement or the Plan, and the
Employment Agreement, the Employment Agreement shall control.
(h) Notices. Any notice required by the terms of this Agreement shall
be given in writing and shall be deemed effective upon personal delivery, upon
deposit with the United States Postal Service, by registered or certified mail,
with postage and fees prepaid or upon deposit with a reputable overnight
courier. Notice shall be addressed to the Company at its principal executive
office and to the Grantee at the address that he most recently provided to the
Company.
(i) Entire Agreement; Amendments. This Agreement, together with the
Employment Agreement, constitutes the entire contract between the parties hereto
with regard to the subject matter hereof. This Agreement and the Employment
Agreement supersede any other agreements, representations or understandings
(whether oral or written and whether express or implied) which relate to the
subject matter hereof. The Committee shall have authority, subject to the
express provisions of the Plan, to interpret this Agreement and the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, to
modify the terms and provisions of this Agreement, and to make all other
determinations in the judgment of the Committee necessary or desirable for the
administration of the Plan, provided no such action may be contrary to the
provisions of the Employment Agreement or may otherwise modify this Agreement in
a manner adverse to Grantee without his prior written consent. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in the
Plan or in this Agreement in the manner and to the extent it shall deem
necessary or desirable to carry it into effect. All action by the Committee
under the provisions of this paragraph shall be final, conclusive and binding
for all purposes.
(j) Choice of Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, as such laws are applied
to contracts entered into and performed in such State, without giving effect to
the choice of law provisions thereof.
(k) Successors.
(i) This Agreement is personal to the Grantee and, except as
otherwise provided in Section 4 above, shall not be assignable by the Grantee
otherwise than by will or the laws of descent and distribution, without the
written consent of the Company. This Agreement shall inure to the benefit of and
be enforceable by the Grantee's legal representatives.
(ii) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors. It shall not be assignable except in
connection with the sale or other disposition of all or substantially all the
assets or business of the Company.
(l) Severability. If any provision of this Agreement for any reason
should be found by any court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality or enforceability of any remaining provision or portion
hereof, which remaining provision or portion hereof shall remain in full force
and effect as if this Agreement had been adopted with the invalid, illegal or
unenforceable provision or portion hereof eliminated.
C-5
(m) Headings. The headings, captions and arrangements utilized in this
Agreement shall not be construed to limit or modify the terms or meaning of this
Agreement.
(n) Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
This Agreement is executed by the Company as of the date and year first
written above.
BELDEN CDT INC.
By: /s/ John Stroup
------------------------------------
John Stroup
Title: Chief Executive Officer
The undersigned Grantee hereby acknowledges receipt of an executed original
of this Agreement and accepts the PSUs granted hereunder, and further agrees to
the terms and conditions hereinabove set forth.
/s/ Gray Benoist
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Gray Benoist, Grantee
Date: August 25, 2006
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EXHIBIT D
GENERAL RELEASE OF ALL CLAIMS
1. For and in consideration of the promises made in the Executive
Employment Agreement (defined below), the adequacy of which is hereby
acknowledged, the undersigned ("EXECUTIVE"), for himself, his heirs,
administrators, legal representatives, executors, successors, assigns, and all
other persons claiming through Executive, if any (collectively, "RELEASERS"),
does hereby release, waive, and forever discharge Belden CDT Inc. (the
"COMPANY"), the Company's subsidiaries, parents, affiliates, related
organizations, employees, officers, directors, attorneys, successors, and
assigns (collectively, the "RELEASEES") from, and does fully waive any
obligations of Releasees to Releasers for, any and all liability, actions,
charges, causes of action, demands, damages, or claims for relief, remuneration,
sums of money, accounts or expenses (including attorneys' fees and costs) of any
kind whatsoever, whether known or unknown or contingent or absolute, which
heretofore has been or which hereafter may be suffered or sustained, directly or
indirectly, by Releasers in consequence of, arising out of, or in any way
relating to Executive's employment with the Company or any of its affiliates or
the termination of Executive's employment. The foregoing release and discharge,
waiver and covenant not to sue includes, but is not limited to, all claims and
any obligations or causes of action arising from such claims, under common law
including wrongful or retaliatory discharge, breach of contract (including, but
not limited to, any claims under the Employment Agreement between the Company
and Executive, dated as of August 24, 2006, as amended (the "EMPLOYMENT
AGREEMENT")) and any claims under any stock option and restricted stock units
agreements between Executive and the Company and any action arising in tort
including libel, slander, defamation or intentional infliction of emotional
distress, and claims under any federal, state or local statute including Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866 and 1871 (42
U.S.C. Section 1981), the National Labor Relations Act, the Age Discrimination
in Employment Act (ADEA), the Fair Labor Standards Act, the Americans with
Disabilities Act of 1990, the Rehabilitation Act of 1973, the Missouri Human
Rights Act (R.S. MO Section 213.010 et seq.), or the discrimination or
employment laws of any state or municipality, or any claims under any express or
implied contract which Releasers may claim existed with Releasees. This release
and waiver does not apply to any claims or rights that may arise after the date
Executive signs this General Release. The foregoing release does not apply to
any claims of indemnification under the Employment Agreement or a separate
indemnification agreement with the Company or rights of coverage under directors
and officers liability insurance, and the foregoing release does not apply to
any claims with respect to rights of Executive under the Employment Agreement
and rights of Executive under any employee benefit plans or programs of the
Company.
2. Excluded from this release and waiver are any claims which cannot be
waived by law, including, but not limited to, the right to participate in an
investigation conducted by certain government agencies. Executive does, however,
waive Executive's right to any monetary recovery should any agency (such as the
Equal Employment Opportunity Commission) pursue any claims on Executive's
behalf. Executive represents and warrants that Executive has not filed any
complaint, charge, or lawsuit against the Releasees with any government agency
or any court.
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3. Executive agrees never to sue Releasees in any forum for any claim
covered by the above waiver and release language, except that Executive may
bring a claim under the ADEA to challenge this General Release or as otherwise
provided in this General Release. If Executive violates this General Release by
suing Releasees, other than under the ADEA or as otherwise set forth in Section
1 hereof, Executive shall be liable to the Company for its reasonable attorneys'
fees and other litigation costs incurred in defending against such a suit.
Nothing in this General Release is intended to reflect any party's belief that
Executive's waiver of claims under ADEA is invalid or unenforceable, it being
the interest of the parties that such claims are waived.
4. Executive acknowledges, agrees and affirms that he is subject to certain
post-employment covenants pursuant to Section 12 of the Employment Agreement,
which covenants survive the termination of his employment and the execution of
this General Release.
5. Executive acknowledges and recites that:
(a) Executive has executed this General Release knowingly and
voluntarily;
(b) Executive has read and understands this General Release in its
entirety;
(c) Executive has been advised and directed orally and in writing (and
this subparagraph (c) constitutes such written direction) to seek legal counsel
and any other advice he wishes with respect to the terms of this General Release
before executing it;
(d) Executive's execution of this General Release has not been coerced
by any employee or agent of the Company; and
(e) Executive has been offered twenty-one (21) calendar days after
receipt of this General Release to consider its terms before executing it.
6. This General Release shall be governed by the internal laws (and not the
choice of laws) of the State of Delaware, except for the application of
pre-emptive Federal law.
7. Executive shall have seven (7) days from the date hereof to revoke this
General Release by providing written notice of the revocation to the Company, as
provided in Section 14 of the Employment Agreement, upon which revocation this
General Release shall be unenforceable and null and void and in the absence of
such revocation this General Release shall be binding and irrevocable by
Executive.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
Date: _____________, 20__ EXECUTIVE:
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(name)
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