BELDEN INC. PERFORMANCE SHARE AWARD AGREEMENT
EXHIBIT 10.17
XXXXXX INC.
THIS PERFORMANCE SHARE AWARD AGREEMENT (this “Agreement”) is effective [insert grant date]
(the “Grant Date”) by and between Xxxxxx Inc., a Delaware corporation (the “Company”) and
(“Grantee”).
WHEREAS, the Grantee is an executive or management employee of the Company and has been
selected by the Compensation Committee (the “Committee”) of the Board of Directors of the Company
(the “Board”) to receive a grant of performance share units (“PSUs”) 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 shall be based on the attainment of
performance objectives as provided below, and 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 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 [insert year]. The Committee has established
performance objectives for such Award Period based on the attainment of [insert year] financial
performance goals. The financial performance goals are those the Committee has established for the
Company’s [insert year] 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 70% 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 number of RSUs shall be prorated for performance between the foregoing
standards. If Company performance during the Award Period is at less than 70% 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 (and
leaves the Company) in accordance with any Company disability policy then in effect, 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 a prorated portion of 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, such prorated portion being a fraction whose numerator shall
be the number of days of the Grantee’s employment by the Company during the Award Period prior to
such death or disability and the denominator of which shall be three hundred and sixty-five (365).
Such Awarded RSUs shall immediately Vest in full.
(c) Other Employment Termination During Award Period. If the Grantee or the Company
otherwise terminates the Grantee’s employment during the Award Period, 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 Section 2(b)
above or Section 3(b) or (d) below, or the forfeiture and termination of the Awarded RSUs pursuant
to Section 3(c) 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) in
accordance with any Company disability policy then in effect 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) Other Employment Termination. If the Grantee or the Company otherwise terminates
the Grantee’s employment after the award of the Awarded RSUs,
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any and all Awarded RSUs that are not Vested at such time shall be forfeited, cancelled and
terminated upon such termination.
(d) Change of Control. Immediately preceding the occurrence of a Change in Control of
the Company (as defined in Section 7(f) below), any and all unvested Awarded RSUs shall immediately
Vest in full, subject to any deferral pursuant to an election under Section 5(b) hereof.
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;
(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.
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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) 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
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(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50%
of either (y) the then-outstanding shares of common stock of the Company (the “Outstanding
Company Common Stock”) or (z) 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 (i), 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; or
(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; or
(iii) Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a “Business
Combination”), in each case, unless, following such Business Combination, (1) all or
substantially all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then-outstanding shares of common stock and
the combined voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) 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.
(g) Incorporation of Plan. The provisions of the Plan are incorporated by reference
into these terms and conditions.
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(h) 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.
(i) 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.
(j) Entire Agreement; Amendments. This Agreement constitutes the entire contract
between the parties hereto with regard to the subject matter hereof. This Agreement supersedes 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. 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.
(k) 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.
(l) 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.
(m) 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
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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.
(n) 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.
(o) 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.
| XXXXXX INC. | ||||||
| By: | ||||||
| Title: | ||||||
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.
| , Grantee |
Date: , 200
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