Exhibit 4.17
THIS AGREEMENT is made the 14 day of February 2002 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 W1S 2YQ 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
(a) As from 2 November 2001 ("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. Your
previous employment with the Company will count towards your
continuity of service with the Company which commenced on 30 October
2000.
(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) In the event that the Company terminates your employment (including
circumstances in which you are constructively dismissed) otherwise
than upon a Change of Control (in which event clause 10 of this
Agreement shall apply) 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) 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) 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;
(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;
(iv) continue to provide your medical insurance and life assurance
for a period of 12 months following the date of termination of
employment on the terms applicable immediately prior thereto
or, if it is not reasonably practicable, to continue to provide
such benefits, make a payment to you to enable you to purchase
similar benefits on broadly comparable terms;
(v) pay you a sum equivalent to your annual car allowance (as set
out at clause 7(f) below);
(vi) arrange outplacement counselling for you at a level appropriate
to your status and position as reasonably determined by the
Company; and
(vii) additionally you will be entitled to a sum in respect of bonus
due (if any) payable at the same time as bonuses to other
participants in the relevant bonus scheme are paid in respect
of the financial year in which termination of employment
occurs, for the period worked up to the date of termination
and, if your employment is terminated on or prior to 31 May
2003, you will be entitled to a sum equal to 95% of the target
bonus payment you would have received (in accordance with the
rules of the relevant bonus year) had you worked your period of
notice with the
Company forthwith upon termination and for the purposes of the
bonus due for the period worked up to the date of termination,
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 applicable
bonus scheme. For the avoidance of doubt insofar as the bonus
provisions of this sub-clause conflict with the provisions of any
applicable bonus scheme, the terms of this sub-clause shall
prevail.
(e) It is recognised that the provisions set out at sub-Clauses 1(d)(i) to
(vii) above represent pre-agreed liquidated damages and reflect a
genuine pre-estimate of the loss that would otherwise be suffered by
you.
(f) The payments made under sub-Clause 1(d) shall be payable less tax and
other statutory deductions which the Company is obliged to deduct from
such payments and you hereby agree that you will not be entitled to
any further or additional compensation or payment of any kind
whatsoever in respect of this Agreement, its termination or
repudiation and the termination of your employment and waive release
and discharge any and all such claims, and undertake to sign such
documentation and do such things as the Company may reasonably require
to give effect to this.
2. DUTIES
(a) You shall hold the office and serve the Company as Chief Executive
Officer. 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
the "Group") as may from time to time be reasonably assigned to or
reasonably vested in you by 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
Board 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.
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(e) The Company and you hereby confirm that for the purpose of Working
Time Regulations 1998 ("WTR") (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 a Managing Executive as
referred to in Regulation 20(1)(a) WTR. Notwithstanding this
acknowledgement, in the event that you are found not to be a Managing
Executive, 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.
3. LOCATION AND TRAVEL
(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
(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 of evidence of expenditure.
(b) The Company also undertakes to reimburse the cost of your membership
of relevant professional bodies.
5. HOURS OF WORK
The office hours are between 9.00 am and 5.15 pm Monday to Friday, with
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
(a) Your basic salary is (pound)350,000 per annum ("basic salary"). Salary
will accrue from day to day and is payable in equal monthly
instalments in arrears by credit transfer to your bank account. Your
salary will be reviewed (upwards only) on the third anniversary of the
commencement of your employment hereunder, and annually thereafter,
save if there are external circumstances which the Company decides
occasion a review.
(b) You will participate in such discretionary bonus schemes as the
Company may operate from time to time for employees of your status.
Notwithstanding the terms of any such bonus scheme, 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 at the time other participants in the
relevant bonus scheme are paid bonuses in respect of the financial
year in which termination occurs.
7. BENEFITS
(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 respect of each
of the
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Company's financial years as a lump sum on or before 4 April by credit
transfer to your bank account. In the event that your employment
terminates during the course of a financial year the Company will,
upon termination of your employment, pay you a pro rata portion of the
pension contribution in respect of the relevant financial year up to
the date of termination where this occurs before the payment of the
lump sum contribution is made in respect of that year, and you
undertake to repay the Company upon termination of your employment the
gross amount of the excess pension contribution made by the Company
calculated on a pro rata basis where such termination occurs after the
lump sum pension contribution has been paid by the Company.
(b) The Company shall provide you with life assurance cover of four times
your basic salary provided that in the event of a material increase in
the cost to the Company of providing this benefit its continuation
will be conditional on the parties agreeing arrangements satisfactory
to both to share the cost of the continued provision of such cover.
(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 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.
(e) Holidays
The Company's holiday year is from April 1 to March 31 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
The Company shall pay you a car allowance of (pound)20,000 per annum
payable in monthly instalments (subject to statutory deductions) with
your salary. The car allowance shall be reviewed annually in October
(upwards only) but shall be increased by not less than the increase in
the Retail Price Index.
(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
(a) Under the provision of Statutory Sick Pay Scheme, should you be absent
from work due to sickness or injury, you are required to:
- 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 to the
Company for the normal working days absence (i.e. Monday to Friday
inclusive - the qualifying days) up to a maximum of twenty-eight weeks
in a single period of entitlement.
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(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
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.
10. CHANGE OF CONTROL
(a) Not less than three months after and not more than 12 months after a
Change of Control you shall be entitled to serve 7 days' written
notice of termination of your employment (whether or not the company
has served notice of termination on you) and to receive the payments
provided for in clause 1(d)(i) and (ii). In addition, you will be
entitled to:-
(i) receive a sum equivalent to the value of your contractual
benefits under clause 7(b), (c) and (f) for a period of 12
months; and
(ii) receive a sum in respect of bonus due (if any) for the period
worked up to the date of termination (payable at the same time
as bonuses to other participants in the relevant bonus scheme
are paid in respect of the financial year in which termination
of employment occurs) and a sum equal to 95% of the target bonus
payment you would have received (in accordance with the rules of
the relevant bonus scheme) had you worked your period of notice
with the Company forthwith upon termination and for the purposes
of the bonus due for the period worked up to the date of
termination, you shall be treated no less favourably than other
executives of your status in respect of the level of bonus paid
to you. For the avoidance of doubt insofar as the provisions of
this sub-clause conflict with the provisions of any applicable
bonus scheme the terms of this sub-clause shall prevail:
(iii) receive outplacement counselling at a level appropriate to your
status and position as reasonably determined by the Company;
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(iv) benefit from the exercise of maximum discretions in your favour
under the Company's bonus schemes, the Company's Executive Share
Option Scheme, and the schemes or plans referred to in clause
7(g) and any successor schemes.
(b) For the purposes of this Clause 10 "Change of Control" means
circumstances in which 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.
(c) The payments made under this Clause 10 shall be payable less tax and
other statutory deductions which the Company is obliged to deduct from
such payments and you hereby agree that you will not be entitled to
any further or additional compensation or payment of any kind
whatsoever in respect of this Agreement, its termination or
repudiation and the termination of your employment and waive release
and discharge any and all such claims, and undertake to sign such
documentation and do such things as the Company may reasonably require
to give effect to this.
11. 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; or
(h) If you voluntarily resign as a Director of the Company.
12. RESIGNATION AND RETURN OF COMPANY PROPERTY
(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
control, save that this Clause 12(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 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,
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without claim for compensation and shall immediately repay all
outstanding debts or monies due to the Company and the Company is
hereby authorised to deduct from any wages (as defined by Section 27
of the Employment Rights Act 1996) or monies due to you from the
Company a sum in repayment of all or any part of any such debts or
monies due from you to the Company.
13. 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 disk or 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 13(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 of make any communication with the
Press or Media except with the prior permission of the Company.
14. 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 determines otherwise.
15. POST EMPLOYMENT RESTRICTIONS
(a) For a period 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 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 person firm or company which at the time of
your ceasing to be employed by the Company is engaged in the same or a
similar business to that of the Company or any Associated Company
carried on by
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the Company or any Associated Company at the date of termination of
your employment and with which you are materially involved in the
period of 12 months immediately prior to the termination of your
employment and which is in competition with the Company or any
Associated Company and which is in competition with the Company or any
Associated Company.
(c) The period of the restrictions set out in Clauses 15(a)(i) and (ii)
and 15(b) above shall be reduced pro rata by any period during which
the Company exercises its rights under Clause 1 (b) above.
16. 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.
17. 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 the Chairman 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.
18. DEFINITIONS
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.
19. GOVERNING LAW
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: February 14, 2002
SIGNED by: Peter M. Brooks
For and on behalf of ENODIS plc
SIGNED by the said ANDREW ALLNER: /s/ Andrew Allner
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