Exhibit 10.1
EMPLOYMENT AND NON-INTERFERENCE
AGREEMENT
This Employment and Non-Interference
Agreement, dated as of December 8, 2008 (the “
Agreement ”), is by and between Jeffrey J. Kyle (the
“ Executive ”) and Sensus Metering Systems Inc.,
a Delaware corporation (the “ Company ”), which
is a wholly-owned subsidiary of Sensus Metering Systems
(Bermuda 2) Ltd., a company organized under the laws of
Bermuda (“ Bermuda 2 ”), which is a
wholly-owned subsidiary of Sensus Metering Systems (Bermuda 1)
Ltd., a company organized under the laws of Bermuda (“
Holdings ”).
WITNESSETH
:
WHEREAS, the Company wishes to
obtain the future services of the Executive for the Company and its
divisions and direct and indirect subsidiaries; and
WHEREAS, the Executive is willing,
upon the terms and conditions herein set forth, to provide services
hereunder; and
WHEREAS, by accepting employment
hereunder, Executive will be privy to extremely sensitive
information which would have a detrimental impact on the goodwill
of the Company if Executive were to be employed by a competitor and
the Company wishes to secure the Executive’s
non-interference, upon the terms and conditions herein set
forth;
NOW, THEREFORE, in consideration of
the mutual promises and covenants contained herein, and intending
to be legally bound hereby, the parties hereto agree as
follows:
1. Nature of Employment; Term of
Employment .
Effective December 8, Company
employs Executive as Chief Financial Officer. The “ Term
of Employment ” shall commence on such date and is
thereafter terminable at will by either party. Nothing contained
herein shall be deemed to be an obligation on the part of the
Company to any fixed term of employment. During the Term of
Employment, the Company agrees to retain Executive in its employ,
and Executive agrees to remain in the employ of the Company, as
Chief Financial Officer. Executive will carry out his duties as
Chief Financial Officer subject to the direction of the Chief
Executive Officer.
2. Extent of Employment
.
(a) During the Term of Employment,
the Executive shall perform his obligations hereunder faithfully
and to the best of his ability under the direction of the Chief
Executive Officer to which the Executive shall directly report, and
shall abide by the rules, policies, customs and usages from time to
time established by the Company or Holdings.
(b) During the Term of Employment,
the Executive shall devote all of his business time, energy and
skill to the performance of his duties, responsibilities and
obligations hereunder (except for (i) vacation periods and
reasonable periods of illness or other incapacity consistent with
past practices and norms in similar positions. The Executive will
have such authority and power as are inherent to the undertakings
applicable to his position as Chief Financial Officer and which are
necessary to carry out his responsibilities and the duties required
of him hereunder.
(c) Nothing contained herein shall
require nor allow Executive to follow any directive or to perform
any act which would violate any laws, ordinances, regulations or
rules of any governmental, regulatory or administrative body, agent
or authority, any court or judicial authority, or any public,
private or industry regulatory authority (collectively, “
Regulations ”). Executive will not (i) breach or
violate any provision of any Regulations (ii) otherwise act in
any manner which might reasonably be expected to have an adverse
effect on the ongoing business, operations, conditions, prospects
or other business relationships or properties of any company in the
Company Group or Holdings.
3. Compensation .
(a) Base Salary . During the
Term of Employment, the Company shall pay compensation to Executive
as base compensation for his services hereunder, in substantially
equal bi-weekly installments, an annual base salary of Two Hundred
and Seventy Five Thousand Dollars ($275,000) (the “ Base
Salary ”). The Board of Directors of Holdings (the
“ Board of Directors ”) shall annually, and
based on the recommendation of the Chief Executive Officer,
determine whether the Base Salary should be increased and, if so,
the amount of such increase.
(b) Annual Bonus . In
addition to the Base Salary, commencing the fiscal year beginning
on April 1, 2009, the Company shall (subject to the last
sentence of this Section) pay to the Executive an annual bonus or
performance incentive compensation, at a target level of 40% of
Executive’s Base Salary, subject to such performance and
other conditions as the Chief Executive Officer shall determine on
an annual basis pursuant to the Company’s Management
Incentive Plan, as it is amended from time to time (the “
Annual Bonus ”) . In addition, Executive shall
(subject to the last sentence of this Section) be entitled to a
bonus of $27,500.40 for the Company’s fiscal quarter
January 1, 2009 to March 31, 2009, which amount shall be
paid at the same time as other bonuses are paid under the
Company’s Management Incentive Plan. All conditions for
payment, including the requirement that Employee still be employed
at the time the bonus payment is paid by the Company apply to all
the above bonus payments.
4. Representations and
Termination .
Executive acknowledges that no
representations or promises have been made concerning the grounds
for termination or the future operation of the Company’s
business, and that, except as set forth in the following sentence,
nothing contained herein or otherwise stated by or on behalf of the
Company modifies or amends the right of the Company to terminate
Executive at any time. If termination is for any reason other than
Cause, Executive shall receive thirty (30) days notice. If
termination is for Cause, termination is immediate upon written
notice.
(a) Severance . If
Executive’s employment is terminated for any reason
whatsoever, then Executive shall be entitled to (x) accrued
and unpaid base salary and benefits (including sick pay, vacation
pay and benefits under Section 6 ) with respect to the
period prior to termination, (y) reimbursement for expenses
under Section 5 with respect to such period, and
(z) any other benefits (including COBRA) required by law to be
provided after termination of
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employment under the circumstances. Except as
may otherwise be expressly provided to the contrary in this
Agreement, nothing in this Agreement shall be construed as
requiring the Executive to be treated as employed by the Company
for purposes of any employee benefit plan following the date of the
termination of the Executive’s Term of Employment. In the
event Executive’s employment is terminated:
(i) due to death or disability of
Executive, the Company will also pay to Executive (or his estate or
representative) the Executive’s Base Salary for a 3 month
period following the actual date the Term of Employment is
terminated; and
(ii) For Cause by the Company, or by
the Executive for any reason, there will be no additional amounts
owing by the Company to Executive under this Agreement from and
after such termination; and
(iii) By the Company for any reason
other than death, disability or Cause, the Company will pay to
Executive the Executive’s Base Salary until the later to
occur of (i) December 7, 2009 or (ii) 6 (six) months
from termination; provided , however , if the
termination of employment occurs after a Change of Control such
payment will be until the later to occur of (i)December 7, 2009,
or; (ii) 12 (twelve) months from termination.
(b) Continuing Provisions .
Termination of the Term of Employment will not terminate
Sections 7 , 8 , 9 , 10 , 12
through 24 , and related definitions, or any other
provisions not associated specifically with the Term of
Employment.
(c) Mitigation . In the event
of termination, the Executive shall not have a duty to mitigate the
Company’s payment obligations under Section 4 by
seeking alternative employment; provided , however ,
that if the Executive does accept alternative employment, he shall
provide immediate written notice to Company and Company’s
payment obligations under Section 4(d) shall be subject
to offset by any amounts of base and bonus compensation earned by
Executive through such alternate employment.
(d) Company Election .
Subject to the terms and conditions of this Agreement, during the
period beginning on the date of delivery of a written notice by the
Company or the Executive, as the case may be, indicating that the
Term of Employment is to be terminated, and ending on the actual
date the Term of Employment is terminated, which, in any event,
shall be no later than 90 days following the delivery of such
notice, the Executive shall continue to perform his duties as set
forth in this Agreement, and shall also perform such services for
the Company as are necessary and appropriate for a smooth
transition to the Executive’s successor, if any.
Notwithstanding the foregoing provisions of this section ,
the Company may suspend the Executive from performing his duties
under this Agreement following the delivery of a written notice by
the Executive providing for the Executive’s resignation, or
delivery by the Company of a notice providing for the
Executive’s termination of employment for any reason;
provided , however , that during the period of
suspension (which shall end upon the actual date the Term of
Employment is terminated, which in any event shall be no later than
90 days following the delivery of such notice), the Executive shall
continue to be treated as employed by the Company for other
purposes, and his rights to compensation or benefits shall not be
reduced by reason of the suspension.
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5. Reimbursement of Expenses
.
During the Term of Employment,
subject to the approval of the Chief Executive Officer, the Company
shall reimburse Executive for reasonable and documented travel,
entertainment and other expenses reasonably incurred by Executive
in connection with the performance of his duties hereunder and, in
each case, in accordance with the travel policy, expense
reimbursement policy and rules, policies, customs and usages
promulgated by Holdings, the Company from time to time in
effect.
6. Benefits .
(a) Vacation . The Executive
shall be entitled to twenty (20) days paid vacation per
calendar year beginning January 1, 2009.
(b) Company Car . The Company
will provide Executive with access to a vehicle as per the
provisions of the Sensus Metering Systems Executive Car
Policy.
(c) Relocation . During the
(12) month period beginning July 1, 2009 the Executive
shall be entitled to relocate his primary residence to the Raleigh,
NC area in accordance with the provisions of the Sensus Metering
Systems Relocation Policy.
(d) Insurance and Other Plans
. The Executive shall be entitled to participate in and be covered
by any insurance plan (including but not limited to medical,
dental, health, life, accident, hospitalization and disability),
profit sharing or other employee benefit plan of the Company, to
the same extent and on the same terms as such benefits are or may
be provided by the Company, at the sole discretion of the Board of
Directors, from time to time to other members of senior
management.
7. Non-Competition/Non-Disclosure
Provisions .
(a) Non-Competition . In
consideration of this Agreement, the Executive covenants and agrees
that during the Term of Employment and, for a period of two
(2) years from the date of termination of the Term of
Employment (the “ Restricted Period ”), the
Executive shall not, subject to this Section 7 ,
without the express written approval of the Board of Directors of
the Company, directly or indirectly, in one or a series of
transactions, own, manage, operate, control, invest or acquire an
interest in, whether as a proprietor, partner, stockholder, member,
lender, director, officer, employee, joint venturer, investor,
lessor, supplier, customer, agent, representative or other
participant, or otherwise engage or participate in, whether as a
proprietor, partner, stockholder, member, lender, director,
officer, employee, joint venturer, investor, lessor, supplier,
customer, agent, representative or other participant, any business
which competes, directly or indirectly, with the Business in the
Market (“ Competitive Business ”) without regard
to (A) whether the Competitive Business has its office,
manufacturing or other business facilities within or without the
Market, (B) whether any of the activities of the Executive
occur or are performed within or without the Market or
(C) whether the Executive resides, or reports to an office,
within or without the Market; provided , however ,
that (x) the Executive may, anywhere in the Market, directly
or indirectly, in one or a series of transactions, own, invest or
acquire an interest in up to two percent (2%) of the capital
stock of a corporation whose capital stock is traded publicly, or
that (y) the Executive may accept employment with a successor
company to the Company.
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(b) Non-Solicitation . If the
Executive’s employment is terminated, then, subject to this
Section 7 , the Executive shall not during the
Restricted Period, without the Company’s prior written
consent, (A) directly or indirectly, in one or a series of
transactions, recruit, solicit or otherwise induce or influence any
proprietor, partner, stockholder, member, lender, director,
officer, employee, sales agent, joint venturer, investor, lessor,
customer, supplier, agent, representative or any other person which
has a business relationship with the Company Group or had a
business relationship with the Company Group within the twenty-four
(24) month period preceding the date of the incident in
question, to discontinue, reduce or modify such employment, agency
or business relationship with the Company Group, or (B) employ
or seek to employ or cause any Competitive Business to employ or
seek to employ any person or agent who is then (or was at any time
within twelve (12) months prior to the date the Executive or
the Competitive Business employs or seeks to employ such person)
employed or retained by the Company Group. Notwithstanding the
foregoing, nothing herein shall prevent the Executive from
providing a letter of recommendation to an employee with respect to
a future employment opportunity.
(c) Non-Disclosure . The
Executive further agrees, during and after the Term of Employment,
the Restricted Period and thereafter, that the Executive will not,
directly or indirectly in one or a series of transactions disclose
to any person or use or otherwise exploit for his own benefit or
for the benefit of anyone other than the Company Group any
Confidential Information (as defined below) whether prepared by the
Executive or not provided, however, that any Confidential
Information may be disclosed to officers, representatives,
employees and agents of the Company Group who need to know such
Confidential Information in order to perform the services or
conduct the operations required or expected of them in the
Business. The Executive shall use his best efforts to prevent the
removal of any Confidential Information from the premises of the
Company Group, except as required in his normal course of
employment by the Company Group. During the Term, the Executive
shall use his commercially reasonable efforts to cause all persons
or entities to whom Confidential Information shall be disclosed by
the Executive hereunder to observe the terms and conditions set
forth herein as though each such person or entity was bound hereby.
After the Term, the Executive shall not disclose Confidential
Information other than to his advisors, representatives and agents
who execute a confidentiality agreement whereby they will agree to
observe the confidentiality terms and conditions set forth herein.
The Executive shall have no obligation hereunder to keep
confidential any Confidential Information if and to the extent
disclosure of any thereof is specifically required by law;
provided , however , that in the event disclosure is
required by applicable law, the Executive shall provide the Company
with p
