Exhibit 10.7
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Employment Agreement
(this "Agreement") dated as of December 29, 2008, is between Brian
Jellison (the "Executive") and Roper Industries, Inc., a Delaware
corporation (the "Company"). This Agreement amends and restates the
Employment Agreement between the parties dated as of November 6,
2001 (the “Original Employment Agreement”).
W I T N E S S E T H:
WHEREAS, the Company employs the Executive as
its President and Chief Executive Officer under terms and
conditions as set forth in the Original Employment Agreement;
and
WHEREAS, the Company and the Executive desire to
amend and restate the original Employment Agreement for the
purposes of complying with Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) and the Treasury
Regulations and Internal Revenue Service guidance
thereunder;
NOW, THEREFORE, the parties agree as
follows:
1.
Employment . The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, upon the
terms and subject to the conditions set forth herein.
2.
Term . This Agreement commenced on November 1, 2001 (the
"Effective Date") and shall continue during the period in which the
Executive remains employed by the Company (the "Term"). The
Executive shall be considered an at-will employee and his
employment may be terminated by either party subject to the
obligations of the parties upon such termination as may be set
forth hereinafter.
3.
Position . During the Term, the Executive shall serve as
President and Chief Executive Officer of the Company.
4.
Duties and Reporting Relationship . The Executive shall have
duties and responsibilities commensurate with his title and status
as President and Chief Executive Officer. He shall at all times be
the highest-ranking officer of the Company, reporting to the Board
of Directors of the Company (the "Board"). During the Term, the
Executive shall, on a full time basis, use the Executive's skills
and render services to the best of the Executive's abilities in
supervising and conducting the operations of the Company and,
except for his continuing to serve as a member of the Board of
Directors of Champion Enterprises, Inc and on any committees
thereof and as a member of the Board of Directors of Tavant, Inc.,
the Executive shall not engage in any other business activities
except with the prior written approval of the Board or its duly
authorized designee. The Executive agrees to be employed by the
Company in such capacity for the Term, subject to all the covenants
and conditions hereinafter set forth.
5.
Place of Performance . The Executive shall perform his
duties and conduct his business at the principal executive offices
of the Company, except for required travel on the Company's
business.
6.
Salary and Annual Bonus .
(a)
Base Salary . The Executive's base salary hereunder shall be
$1,000,000 a year, payable no less frequently than monthly and
prorated for any partial year of employment. The Board shall review
such base salary at least annually and may increase, but not
decrease, such base salary as it may deem advisable.
(b)
Annual Bonus . The Company shall provide the Executive with
an opportunity to earn upon achievement of target performance goals
established by the Compensation Committee of the Board, an annual
bonus of up to one hundred percent (100%) of the Executive's base
salary (the "Target Bonus").
7.
Vacation, Holidays and Sick Leave . During the Term, the
Executive shall be entitled to paid vacation, paid holidays and
sick leave in accordance with the Company's standard policies for
its senior executive officers; provided however, that in no event
shall the Executive be entitled to less than four (4) weeks of
vacation per year.
8.
Business Expenses . The Executive shall be reimbursed for
all ordinary and necessary business expenses incurred by the
Executive in connection with the Executive's employment upon timely
submission by the Executive of receipts and other documentation as
required by the Internal Revenue Code and in conformance with the
Company's normal procedures. Notwithstanding the foregoing, (i) the
reimbursements provided in any one calendar year shall not affect
the amount of reimbursements provided in any other calendar year;
(ii) the reimbursement of an eligible expense shall be made as soon
as practicable but no later than December 31 of the year following
the year in which the expense was incurred; and (iii)
Executive’s rights pursuant to this Section 8 shall not be
subject to liquidation or exchange for another benefit.
9.
Pension and Welfare Benefits . During the Term, the
Executive shall be eligible to participate fully in all health
benefits, insurance programs, pension and retirement plans and
other employee benefit and compensation arrangements available to
senior executive officers of the Company generally. In addition,
the Executive shall be entitled to use a new Company paid
automobile and the Company will pay initiation and monthly dues for
the Executive at a country club of his choice which is reasonably
acceptable to the Board of Directors of the Company.
Notwithstanding the foregoing, (i) the Company’s payment or
reimbursements for the automobile and country club dues provided in
any one calendar year shall not affect the amount of such payments
or reimbursements provided in any other calendar year; (ii) the
reimbursement of an eligible expense shall be made as soon as
practicable but no later than December 31 of the year following the
year in which the expense was incurred; and (iii) Executive’s
rights pursuant to this Section 9 shall not be subject to
liquidation or exchange for another benefit.
10.
Relocation Benefits . The Executive shall be entitled to
relocation benefits in accordance with the Company's relocation
policy. In addition and notwithstanding the relocation
policy:
(a) The
Company shall gross-up any portion of such relocation benefits
which are taxable to the Executive for all state, federal and local
income taxes based on the Executive's highest marginal income tax
rates, which amount shall be considered additional relocation
benefits;
(b) The
Company will pay for the Executive's temporary living expenses for
up to six months; and
(c) The
Executive will not be obligated to return all relocation benefits
unless prior to the first anniversary of the Effective Date, the
Executive voluntarily terminates his employment with the Company
without Good Reason (as defined below) or is terminated by the
Company for Cause (as defined below).
11.
Stock Options . On the Effective Date, the Company granted
to the Executive, pursuant to the terms of the Company's 2000 Stock
Incentive Plan (the "Stock Incentive Plan") and the Company's 1991
Stock Option Plan (the "Stock Option Plan"), options to purchase in
the aggregate 200,000 shares of common stock of the Company having
an exercise price equal to the fair market value of the Company's
common stock as of the Effective Date, all of which have since
become vested. In the event the Executive's employment is
terminated by the Company without Cause (as defined below) or the
Executive resigns with Good Reason (as defined below), then that
portion of any option (including any additional options that may be
granted to the Executive after the Effective Date) that would have
vested at the next anniversary of the Effective Date following the
Date of Termination shall be and become fully vested on the Date of
Termination and, notwithstanding any provision to the contrary in
the applicable Stock Option Agreement, any option held by the
Executive to the extent then vested, may be exercised and shall not
expire until the earlier of (A) the expiration of the option term
as set forth in the Stock Option Agreement or (B) the expiration of
the severance period set forth in Section 13(d)(ii). In addition to
the grant set forth in this Section, the Board or the Compensation
Committee thereof may grant to the Executive such other and
additional awards under the Stock Incentive Plan (or any successor
plan) as may from time to time be deemed appropriate.
12.
Termination of Employment .
(a)
General . The Executive's employment hereunder may be
terminated only under the circumstances described in this Section
12.
(b)
Death or Disability .
(i) The
Executive's employment hereunder shall automatically terminate upon
the death of the Executive.
(ii) If
the Company determines in good faith that Executive has become
Disabled (as defined below), the Company may terminate the
Executive's employment hereunder for any such incapacity (a
"Disability"). Executive shall be Disabled if either of the
following conditions is met: (i) Executive is unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than 12 months; or (ii) Executive is, by reason of
any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the
Company.
(c)
Termination by the Company . The Company may terminate the
Executive's employment hereunder at any time, whether or not for
Cause. For purposes of this Agreement, "Cause" shall mean (i) the
continuous and willful failure or refusal by the Executive to
perform the Executive's duties hereunder (other than any such
failure resulting from the Executive's incapacity due to physical
or mental illness), which has not ceased within ten (10) days after
a written demand for substantial performance is delivered to the
Executive by the Company, which demand identifies with
particularity the manner in which the Company believes that the
Executive has not performed such duties, (ii) the engaging by the
Executive in willful misconduct which is materially injurious to
the Company, monetarily or otherwise (including, but not limited
to, conduct which violates Section 16 hereof) or an act of moral
turpitude which is materially injurious to the Company, monetarily
or otherwise (including, but not limited to, conduct which violates
Section 16 hereof) or (iii) the conviction of the Executive of, or
the entering of a plea of nolo contendere by, the Executive with
respect to a felony.
For purposes of this provision, no act or
failure to act, on the part of Executive shall be considered
"willful" unless it is done, or omitted to be done, by Executive in
bad faith or without reasonable belief that the Executive's action
or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board of Directors or based upon the advice of
counsel for the Company shall be conclusively presumed to be done,
or omitted to be done, by the Executive in good faith and in the
best interests of the Company. The cessation of employment of the
Executive shall not be deemed to be for Cause unless prior to such
termination there shall have been delivered to the Executive a copy
of a resolution duly adopted by the affirmative vote of not less
than a majority of the disinterested membership of the Board of
Directors at a meeting of such Board of Directors called and held
for such purpose (after reasonable notice is provided to the
Executive and the Executive is given an opportunity to be heard
before such Board of Directors), finding, that, in the good faith
opinion of the Board of Directors, the Executive is guilty of the
conduct described in clause (i), (ii) or (iii) above.
(d)
Termination by the Executive for Good Reason . The Executive
shall be entitled to terminate his employment hereunder for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean
any one of the following acts by the Company, or failures by the
Company to act, unless, in the case of any act or failure to act
described below, such act or failure to act is corrected within the
30-day cure period described below or unless Executive has
otherwise consented thereto in writing:
(i) any
material diminution in the Executive's authorities or
responsibilities (including reporting responsibilities) or from his
status, title, position or responsibilities (including reporting
responsibilities) without the Executive's express written consent
to accept any such change; the assignment to him of any duties or
work responsibilities which are materially inconsistent with such
status, title, position or work responsibilities; or any removal of
the Executive from, or failure to reappoint or reelect him to any
of such positions, except if any such changes are because of
Disability, retirement, death or Cause;
(ii) a
more than 10% reduction by the Company in the Executive's base
salary or Target Bonus as in effect on the date hereof or as the
same may be increased from time to time;
(iii) the
relocation of the Executive's office at which the Executive is to
perform the Executive's duties, to a location more than fifty (50)
miles from the location at which the Executive previously performed
the Executive's duties hereunder, except for required travel on the
Company's business;
(iv) the
failure by the Company to comply with any material provision of
this Agreement, which failure has not been cured within thirty (30)
days after notice of such noncompliance has been given by the
Executive to the Company; or
(v) any
purported termination of the Executive's employment by the Company
which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 12(f) below.
Notwithstanding the foregoing, none of the
events described in clauses (i) through (v) of this Section 12(d)
will constitute Good Reason unless the Executive has notified the
Company in writing describing the events which constitute Good
Reason (which notice must be given no later than ninety (90) days
after the initial occurrence of such events) and the Company has
failed to cure such events within thirty (30) days after the
Company’s receipt of such written notice. If an
event of Good Reason shall remain uncured within such 30-day cure
period, the Executive may resign for such event of Good Reason
within a period of twenty-three (23) months after the end of such
cure period. Absent further guidance to the contrary, the
parties intend, believe and take the position that a resignation by
the Executive for Good Reason as defined above effectively
constitutes an involuntary separation from service within the
meaning of Section 409A of the Code and Treas. Reg
§1.409A-1(n)(2).
(e)
Voluntary Resignation . Should the Executive wish to resign
from his position with the Company or terminate his employment for
other than Good Reason during the Term, the Executive shall give
sixty (60) days written notice to the Company ("Notice Period"),
specifying the date as of which his resignation is to become
effective. During the Notice Period, the Executive shall cooperate
fully with the Company in an effort to achieve a smooth transition
of the Executive's duties and responsibilities to such person(s) as
may be designated by the Company. The Company reserves the right to
accelerate the Date of Termination by giving the Executive notice,
but the Company shall in that case pay and provide the Executive
with all payments and benefits he would otherwise have been
entitled to (other than disability benefits) had he remained
employed through the end of the Notice Period, including payment of
amounts due to the Executive under Section 6(a) and, to the extent
applicable, Section 6(b) for the balance of the Notice Period. The
Company's obligation to continue to employ the Executive or to
continue payment of the amounts described in the preceding sentence
shall cease immediately if: (1) the Executive has not satisfied his
obligations to cooperate fully with a smooth transition or (2) the
Company has grounds to terminate the Executive's employment
immediately for Cause. Conversely, if during the Notice Period the
Executive comes to have grounds to resign with Good Reason (other
than the grounds described in Section 12(d)(i) or, only to the
extent related to the matters covered in Section 12(d)(i), Section
12(d)(iv)), then Executive may, by notice, deem the resignation to
be with Good Reason, in which case the rights and obligations set
forth herein for a Good Reason termination shall govern.
(f)
Notice of Termination . Any purported termination of the
Executive's employment by the Company or by the Executive shall be
communicated by written Notice of Termination to the other party
hereto in accordance with Section 19. "Notice of Termination" shall
mean a notice that shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the
provision so indicated.
(g)
Date of Termination . "Date of Termination" shall mean (i)
if the Executive's employment is terminated because of death, the
date of the Executive's death, (ii) if the Executive's employment
is terminated for Disability, the date Notice of Termination is
given, (iii) if the Executive's employment is terminated pursuant
to Subsection (c) or (e) hereof or for any other reason (other than
death or Disability, Good Reason or Cause), the date specified in
the Notice of Termination which shall not be less than sixty (60)
days from the date such Notice of Termination is given, (iv) if the
Executive's employment is terminated pursuant to Subsection (c) for
reasons of Cause, immediately upon delivery the Notice of
Termination, and (v) if the Executive's employment is terminated
pursuant to Subsection (d) hereof, the date specified in the Notice
of Termination which shall not be less than thirty (30) days from
the date such Notice of Termination is given.
(h)
Change in Control . For purposes of this Agreement, a Change
in Control of the Company shall have occurred if:
(i) any
"Person" (as defined in Section 3(a)(9) of the Securities Exchange
Act of 1934 (the "Exchange Act") as modified and used in Sections
13(d) and 14(d) of the Exchange Act) other than (1) the Company or
any of its subsidiaries, (2) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its subsidiaries, (3) an underwriter temporarily holding securities
pursuant to an offering of such securities, (4) any creditor of the
Company (but not any transferee of such creditor even if such
transferee shall also be a creditor) who is issued shares of the
Company's common stock in connection with the implementation of the
Company's plan of reorganization which shall be effective as of the
Effective Date, or (5) any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of the Company's common stock),
is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
the Company representing more than 40% of the combined voting power
of the Company's then outstanding voting securities;
(ii) during
any period of not more than two (2) consecutive years, not
including any period prior to the Effective Date, individuals who
at the beginning of such period constitute the Board, and any new
director (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described in clause (i), (iii), or (iv) of this Section 12(h))
whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) the
stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the survi
