Exhibit 4.5
THIS AGREEMENT is made the 20th day of October 2000 and sets out the terms and
conditions of employment between ENODIS plc ("the Company") whose registered
office is at Washington House, 40-41 Conduit Street, London W1R 9FB and ANDREW
ALLNER of 9 The Crescent, Barnes, London SW13 0NN ("you" or "the Employee")
IT IS HEREBY AGREED AS FOLLOWS:-
1. Commencement Date and Duration
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a) As from 30th October 2000 ("the Commencement Date") you will be employed
by the Company under the terms of this Agreement and your employment
will continue (subject to the provisions for early termination) unless
terminated by the Company giving you 12 months' notice in writing or by
your giving to the Company 3 months' notice in writing. No previous
employment with the Company will count towards your continuity of
service with the Company.
b) During any period of notice of termination (whether given by the Company
or you) the Company shall be under no obligation to assign any duties to
you, or to provide any work for you and shall be entitled to exclude you
from its premises, provided that this will not affect your entitlement
to receive your normal salary and other benefits including your
entitlement to continue existing participation in bonus and other
incentive schemes including share option schemes, (except that you will
cease to accrue holiday during any such period), provided always that
this Clause 1(b) will not be utilised by the Company for any period in
excess of 6 months.
c) Notwithstanding Clause 1 (a) above, your employment will automatically
terminate when you reach the normal retiring age applicable to employees
of the Company.
d) 1) In the event that the Company terminates your employment (including
circumstances in which you are constructively dismissed) without
"cause" (i.e. without a reason or reasons entitling the Company to
terminate your employment immediately as set out in Clause 10 of
this Agreement) during the first 12 months of your employment namely
on or before 29 October 2001, the Company shall forthwith upon
termination:
i. pay you a sum equivalent to 95% of the value as at the date of
termination of 12 months' basic salary;
ii. if so agreed at the time by the Board (as hereafter defined),
to pay you a sum equivalent to 95% of the value at the date of
termination of 12 months' additional salary as calculated in
accordance with Clause 7(a) hereof; and
iii. procure that maximum discretions are exercised in your favour
under the Company's bonus schemes, the Company's Executive
Share Option Scheme, and schemes or plans referred to in
Clause 7(g) and any successor schemes.
It is recognised that the provisions set out at Clauses 1(d)(1)(i) to
(iii) above represent pre-agreed liquidated damages and reflect a
genuine pre-estimate of the loss that would otherwise be suffered by
you, and that you are not required to mitigate your loss in relation
to these pre-agreed liquidated damages.
2) At any time within the first 12 months of your employment with the
Company (ie. up to and including the 29 October 2001) following a
change in control of the Company, you shall be entitled to serve
seven days' written notice to terminate your employment (whether
or not the Company has served notice of termination on you) and to
receive precisely the same payments and benefits as are set out at
Clause 1(d)(1)(i) to (iii) above save that:-
i. the payment referred to in 1(d)(1)(ii) shall not be subject
to agreement by the Board at the time;
ii. you will also be entitled to a sum equivalent to the value
of all your contractual benefits for a period of 12 months;
and
iii. you will also be entitled to a sum in respect of bonus due
(if any) for the period worked up to the date of termination
and a sum to reflect 95% of the bonus payment you would have
received (if any in accordance with the rules of the bonus
scheme) had you worked your period of notice with the
Company payment of such bonus to be made in accordance with
the rules of the said scheme, and for these purposes you
shall be treated no less favourably than other executives of
your status in respect of the level of bonus paid to you and
shall be paid on the normal bonus payment dates of the said
scheme.
It is recognised that these payments and benefits represent pre-
agreed liquidated damages and reflect a genuine pre-estimate of
the loss that would otherwise be suffered by you and that you are
not required to mitigate the loss in relation to these pre-agreed
liquidated damages.
For these purposes "change of control" means where any person (or
persons acting in concert) obtains "control" (as defined in
Section 840 of the Income and Corporation Taxes Act 1988) of the
Company.
The payments made under this Clause 1(d) shall be payable less tax
and other statutory deductions which the Company is obliged to
deduct from such payments.
2. Duties
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a) You shall hold the office and serve the Company as Chief Financial
Officer and will be appointed a Director of the Company on 30th
October 2000. You shall during the course of your employment perform
such duties and exercise such powers (consistent with such office and
which are reasonably within your skill and competence) in respect of
the Company and any subsidiary and associated companies (together
called
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the "Group") as may from time to time be reasonably assigned to or
reasonably vested in you by the Board of Directors of the Company
("the Board") and shall from time to time give to the Board all such
information regarding such matters as it shall reasonably require and
implement and apply the policy of the Company as set forth by the
Board from time to time. You shall report to the Chief Executive of
the Company for the time being.
b) During your employment with the Company, unless prevented by ill
health or authorised holidays, you will well and faithfully serve and
promote the interest of the Company and the Group subject to any
commitment you have in respect of the non-executive directorship
referred to below. You are also required to give the whole of your
time and attention to the service of the Company, and not (without the
Company's written consent, which will not be unreasonably withheld) to
engage or become interested in any other gainful trade, business or
occupation, either independently or as an employee, or to accept any
directorships or other positions outside the Group, but this does not
preclude you from:
i. holding not more than 5% of any class of issued shares or other
securities which are listed or dealt with on any recognised stock
exchange by way of bona fide investment; or
ii. serving as a non-executive director of one other company at any
time during your employment under this Agreement. For the
avoidance of doubt, you shall be entitled to retain any fees paid
in respect of any such non-executive directorship.
c) During your employment under this Agreement, and for 6 months after
its termination howsoever arising, you will comply (and procure that
any spouse and minor children shall comply) with all rules of law,
stock exchange regulations and any proper code of conduct of the
Company of which you have been notified in writing for the time being
in force in relation to your dealing in shares, debentures or other
securities.
d) The Company shall ensure that you shall have available such authority
from the Board, such access to information and Company and Group
records and such assistance from other administrative and managerial
employees of the Company and Group, consultants and professional
advisers, as are necessary for the proper performance of your duties.
e) The Company and you hereby confirm that for the purpose of Working
Time Regulations 1998 (which provide (save for certain exceptions)
that average working time should not exceed 48 hours for each 7 day
period) you will be regarded as having autonomous decision-taking
powers. Notwithstanding this acknowledgement, in the event that you
are found not to have autonomous decision-taking powers, you hereby
agree that as from the Commencement Date the above mentioned limit
shall not apply to you. This agreement by you shall remain in force
indefinitely provided always that you may withdraw your agreement by
giving not less than three months' written notice to the Company.
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3. Location and Travel
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a) You will work at the current Head Office of the Company or in any place
within reasonable daily commuting distance from Barnes, South West
London, which the Company may from time to time reasonably require, for
the proper performance and exercise of your duties. The Company may
reasonably require you to work for limited periods at other Company
premises.
b) You will also be required on a reasonable basis to travel on the
business of the Company or Group, both within the United Kingdom and
abroad.
4. Expenses
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a) The Company will reimburse you the amount of all hotel, travelling and
other expenses reasonably and properly incurred by you in the discharge
of your duties for the Company on production of the appropriate receipts
or evidence of expenditure.
b) The Company also undertakes to reimburse the cost of your membership of
relevant professional bodies.
5. Hours of Work
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The office hours are between 9:00 am and 5:15 pm Monday to Friday, with a
one-hour break for lunch - a total of 36.25 hours. These hours are flexible
and you will be expected to work such hours as are reasonably necessary to
enable you to fulfil the requirements of this position.
6. Remuneration
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a) Your basic salary will be (Pounds)245,000 per annum ("basic salary"), or
such higher amount, if any, resulting from the annual review currently
undertaken by the Company on 1st October each year. Salary will accrue
from day to day and is payable in equal monthly instalments in arrears
by credit transfer to your bank account. Your first annual review will
take place on 1st October 2001.
b) You will participate in such discretionary bonus schemes as the Company
may operate from time to time for employees of your status. If you are
employed by the Company under this Agreement for part only of any bonus
year, you shall be entitled to a pro-rated proportion of the bonus. On
termination of employment, payment of such pro-rated proportion of bonus
will be made within one month of the end of the calendar month in which
your employment terminates.
7. Benefits
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a) As you have indicated that you do not wish to join the Company's pension
schemes, the Company agrees to make a payment to you equivalent to 27%
of your base annual salary from time to time instead of making pension
contributions into the schemes on your behalf. This payment will accrue
from day to day and is payable in equal monthly instalments in arrears
by credit transfer to your bank account.
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b) The Company shall, subject to your satisfying all underwriting
conditions and Inland Revenue rules, provide you with life assurance
cover of four times your basic salary.
c) You shall be entitled to membership for yourself and your immediate
family of the Company's medical insurance scheme, to membership for
yourself of the prolonged disability scheme (if any) for the time being
in force applicable to full-time employees of equivalent status of the
Company in accordance with the rules applicable thereto subject to all
underwriting conditions and Inland Revenue rules being met. The Company
shall bear the subscriptions of such cover.
d) You shall be entitled to participate in the Company's Executive Share
Option Scheme. The Company, subject always to the rules of the scheme,
will use its best endeavours to procure the grant of options up to the
maximum permitted value (as defined by the rules of the scheme). Subject
to shareholders' approval for introduction of a new Executive Share
Option Scheme, you will be eligible for annual grant of executive share
options of twice your basic annual salary from time to time, subject to
Board approval at the time, such approval not to be unreasonably
withheld.
e) Holidays
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The Company's holiday year is from April 1st to March 31st and your
entitlement to paid holidays within that period is 25 days in addition
to recognised English public and bank holidays. The entitlement to
holiday accrues pro rata throughout each holiday year. The holidays are
subject to prior approval of the Company and holidays may not be carried
over into a subsequent year without permission, such permission not to
be unreasonably withheld. On leaving the employment of the Company, you
will be paid for any holidays outstanding. However, the Company reserves
the right to recover any overpayment of holiday pay in excess of your
entitlement.
f) Company Car
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The Company will provide you with a suitable motor car commensurate with
your status whilst you remain in this employment in accordance with the
Company Car Policy. The Company will meet the cost of running, taxing,
insuring, repairing and maintaining the said motor car, except that you
will pay for fuel for private use outside the United Kingdom. You will
be expected to treat the car with due care and diligence, and ensure
that it is maintained in a roadworthy condition at all times. Where an
accident is directly due to your own fault, you may be required to pay a
contribution to the excess on the insurance, currently (Pounds)100.
g) In addition to the bonus and benefits referred to in this Agreement, you
shall be entitled to participate in such cash incentive plans, long-term
incentive plans, share option schemes, bonus schemes and profit share
schemes as are operated by the Company from time to time for employees
of your status.
8. Illness
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a) Under the provision of the Statutory Sick Pay Scheme, should you be
absent from work due to sickness or injury, you are required to:
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- Inform the Company by telephone or in writing as soon as possible
during the morning of the first day of absence.
- Complete a Self-Certification Form for all periods of absence.
- Produce a Doctor's Certificate for periods of absence exceeding
seven days, including weekends and statutory holiday and for each
week after the first week of absence.
b) Unless disqualified, Statutory Sick Pay (SSP) will be paid by the
Company for the normal working days absence (ie Monday to Friday
inclusive - the qualifying days) up to a maximum of twenty-eight weeks
in a single period of entitlement.
c) Disqualification from SSP would be on statutory grounds, late
notification without good cause, or in cases where the Company has not
been satisfied on reasonable grounds that you are genuinely sick or
incapacitated.
d) Subject to compliance with the above, you will be entitled to sick pay
at your normal rate of salary together with all benefits for a period
not exceeding, in the aggregate, twenty-six weeks in the twelve months
calculated back from the current illness.
e) Should you be absent from work due to sickness for a period or periods
in the aggregate in excess of twenty-six weeks in any twelve months, or
be subject to persistent or recurring absence due to illness, the
Company may require you to undergo an examination by a doctor, the
expense of such examination to be borne by the Company.
f) In the event of sickness or injury continuing for longer than twenty-six
weeks, you will be retained on the Company's payroll for the purpose of
receiving any Prolonged Disability Benefits which may be payable. Such
continued employment is conditional upon your being and continuing to be
entitled to receive the said disability benefit and if you are not so
entitled or cease to be so entitled for any reason, the Company may
treat your employment as terminated. The Company shall not terminate
your employment by reason of illness-related absence if such termination
would deprive you of the actual or potential benefit of payments made
under any prolonged disability benefits scheme.
9. Health and Safety
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The Company attaches great importance to the health and safety of its
employees, and recognises a duty to prevent, where possible, personal
injury by ensuring that the design, construction, operation and
maintenance of all equipment, facilities and systems are in accordance
with Health and Safety Requirements. In order to achieve this aim, you
must ensure not only that you comply with all the requirements of the
Company, but also that appropriate training and instruction is given to
all employees whom you control in order to prevent injury to themselves
and others. The Company has designated the Company Secretary as
responsible for the co-ordination of Health and Safety within the Head
Office of the Company, and any queries regarding Health and Safety
should be directed to him in the first instance.
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10. Summary Termination of Employment
---------------------------------
Your employment may be terminated by the Company without notice or payment
in lieu of notice:
a) If you are guilty of any gross default or gross misconduct in connection
with or affecting the business of the Company or any company in the
Group for which you are required by this Agreement to render services;
or
b) In the event of any serious or repeated breach or serious or repeated
non-observance by you of any of the stipulations contained in this
Agreement; provided that if such breach or non-observance is capable of
remedy, you shall have failed to remedy it within such reasonable period
being not less than 30 days, as is specified in a written notice from
the Company specifying the breach or non-observance and requiring it to
be remedied; or
c) If you have an interim receiving order made against you, become bankrupt
or make any composition or enter into any deed of arrangement with your
creditors; or
d) If you are convicted of any arrestable criminal offence (other than an
offence under road traffic legislation in the United Kingdom or
elsewhere for which a fine or non-custodial penalty is imposed); or
e) If you are disqualified from holding office in another company in which
you are concerned or interested because of wrongful trading under the
Insolvency Act 1986; or
f) If you become of unsound mind or become a patient under the Mental
Health Act 1983; or
g) If you are convicted of any offence under the Companies Securities
(Insider Dealing) Act 1985 or under any other present or future
statutory enactment or regulations relating to insider dealings.
11. Resignation and Return of Company Property
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a) Upon the termination, by whatever means, of this Agreement, you will
forthwith deliver to the Company all credit cards, keys and other
property of, or relating to the business of the Company and the Group,
wherever held, including all computer generated material, whether on
disk or otherwise, which may be in your possession or under your power
or control, save that this Clause 11(a) does not apply to Board minutes
of the Company or any company in the Group and any documentation
referred to therein relating to any period during which you were a
director of the Company or such Group company which shall nevertheless
remain confidential.
b) If, for any reason and with the consent of the Company, you retain the
use of a motor car, or other Company property, for a period following
the termination of this Agreement, the Company shall be entitled to
hold a reasonable sum of money as surety
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against the return of such property in fit and proper condition at an
agreed time and place.
c) Upon the termination of your employment, you will immediately resign
from any office held as a Director or Secretary of companies in the
Group as may be so requested, without claim for compensation.
12. Confidential Information
------------------------
a) Unless ordered to do so by a court of competent jurisdiction you will
not, either during the continuance of this employment, except so far as
is necessary in the performance of your duties, or thereafter, without
first having the consent in writing of the Company, divulge to any
third party whatsoever any confidential information concerning the
business, accounts, finances, materials, machinery, processes, secrets,
dealings, transactions or affairs of the Company or any other company
in the Group which has or may come to your knowledge during the course
of this employment. For the purposes of this clause "confidential
information" shall include but not be limited to the following (whether
recorded in writing, on computer disc on in any other manner) :-
internal management accounts; customer data; investment and pricing
policies; product performance data; documents disclosing names and
addresses of customers and suppliers of the Company and/or the Group;
the contact name at such customer or supplier; the requirements of such
customer or supplier; discounts offered by the Company and/or the
Group; computer passwords. This duty remains binding on you even after
your employment with the Company has terminated. The restrictions
contained in this Clause 12(a) shall cease to apply with respect to any
information which comes into the public domain otherwise than through
unauthorised disclosure by you.
b) You will not, except in the normal course of business, publish any
literature, deliver any lectures or make any communication with the
Press or Media except with the prior permission of the Company.
13. Inventions and Improvements
---------------------------
Any invention, improvement, modification, discovery or design made by you
solely, or jointly with any other person, arising out of or during the
course of your employment shall be the sole property of the Company unless
it deems otherwise.
14. Post Employment Restrictions
----------------------------
a) For a period of 12 months following the termination of your employment,
you will not without the prior written consent of the Company, on your
own behalf or on behalf of any person, firm or company directly or
indirectly:
i. Endeavour to solicit or entice away from the Group any person who
at any time during the period of 12 months immediately preceding
the termination of your employment was employed or engaged by the
Group at Senior Management
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level or above and with whom you had material contact during the
course of your employment with the Company, or
ii. be associated with any bid for or purchase of any business within
the United Kingdom, which the Company had at, any time during the
12 months immediately prior to the termination of your employment
entered into negotiations or discussions with, or had
investigated, in each case with a view to the purchase of, or to
bid for that business, and in which proposed bid or purchase you
were personally involved.
b) For a period of 12 months following the termination of your employment
with the Company, you will not without the prior written consent of the
Company, be employed by, have interest in, act as advisor or consultant
to, any other company which at the time of your ceasing to be employed
by the Company is deemed to be materially in the same business as that
of the Company in respect of any business carried on by the Company
with which you are materially involved in the period of 12 months
immediately prior to the termination of your employment.
c) The period of the restrictions set out in Clauses 14(a)(i) and (ii) and
14(b) above shall be reduced pro rata by any period during which the
Company exercises its rights under Clause 1(b) above.
15. Data Protection
---------------
You acknowledge that the Company will hold the information contained within
this Agreement on your personal file. You are entitled under statute to
have access to this file and to other information the Company holds about
you pursuant to your employment hereunder (whether in computerised or
manual record form) subject to certain restrictions imposed by law.
16. Grievance and Disciplinary Procedures
-------------------------------------
a) If you wish to seek redress of any grievance relating to your
employment (other than one relating to a disciplinary decision) you
should refer such grievance to your immediate superior and if the
grievance is not resolved by discussion with him, it will be referred
to the Board for resolution.
b) The Company's disciplinary procedures from time to time in force will
be provided to you for information purposes only and do not form part
of the contractual provisions of this Agreement.
17. Definitions
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In this Agreement, "associated companies" shall mean companies which are
from time to time subsidiaries or holding companies of the Company or
subsidiaries (other than the Company) of holding companies of the Company
and "subsidiary" and "holding company" shall have the meanings respectively
ascribed thereto by Section 736 of the Companies Act 1985.
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18. Governing Law
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This Agreement shall be governed by and construed in accordance with the
law of England and the parties agree to submit to the non-exclusive
jurisdiction of the English courts as regards any claim or matter arising
in respect of this Agreement.
DATE: 20th October 2000
SIGNED by: /s/ D R Hooper
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For and on the behalf of ENODIS plc
SIGNED by the said ANDREW ALLNER: /s/ Andrew Allner
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[Letterhead of Enodis plc]
5 April 2001
A.J. Allner
9, The Crescent
Barnes
London
SW13 0NN
Dear Andrew:
This letter confirms the terms of a short-term incentive scheme agreed between
the Company and you.
The Company will make a cash payment to you of a gross sum calculated by
reference to the following:
(a) $5,000 per 1p increase in the price of the Company's ordinary share
above 100p to the price of the Company's ordinary share being calculated
as the average of the closing mid-market price of the Company's ordinary
shares on the 5 dealing days following the preliminary announcement by
the Company of its annual results for the year ending 30 September 2001
OR, the price paid by an acquiring company in the event of a change of
control of the Company prior to the preliminary announcement.
(b) The minimum payment which may be made to you under this arrangement
will be $250,000.
(c) There is no maximum payment under this arrangement.
(d) The usual statutory deductions will be applied to this payment.
(e) Payment of this sum will be made within 10 days of the earlier of the
preliminary announcement by the Company of its annual results or any
offer made by an acquiring company to buy the entire issued share
capital of the Company being declared wholly unconditional.
This letter also confirms that the period of 12 months mentioned in the first
line of clause 1(d)(2) of your service contract dated 20/th/ October 2000 is
extended to 18 months and the period of seven days mentioned in clause 1(d)(2)
is increased to 90 days.
Yours sincerely,
P.M. Brooks
- -----------
Chairman
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