Exhibit 4.18
Enodis
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Enodis Corporation . 2227 Welbilt Boulevard . New Port Richey, FL 34655 . USA
Tel: 727-375-7010 . Fax: 727-375-7328 . www.enodis.com
As of October 1, 2001
Mr. David McCulloch
Dear Dave:
This letter sets forth the agreement between ENODIS CORPORATION (the
"Company") and you (referred to herein as "you" or "Executive"), with respect to
your employment by the Company and certain of its divisions and/or subsidiaries.
1. Employment.
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(a) Executive shall be employed by the Company on the terms and
conditions set forth herein as an Executive (and as of the date hereof is
serving as the President, Global Foodservice Group) and Executive shall be
assigned such duties and responsibilities relating to the Global Foodservice
activities of Enodis plc (the "Parent"), consistent with Executive's status and
position. From time to time hereafter, your duties may change, as the Company or
the Parent may reasonably determine subject to your rights under Paragraph 12
hereof. You acknowledge that your employment by the Company, its Parent and any
of its divisions and subsidiaries is "at will" and that your employment may be
terminated at any time with or without cause either by you or the Company or the
Parent. You understand that performance of any of the Company's obligations
hereunder may be performed directly by the Company, its Parent and/or its
divisions or subsidiaries. You will serve as an officer and/or director of such
divisions and/or subsidiaries of the Company as the Company or the Parent shall
request and you shall not be entitled to any additional compensation by reason
of such offices.
(b) Executive accepts such employment and agrees that throughout the
period of his employment by the Company, he will devote his full business time,
attention, knowledge and skills, faithfully and to the best of his ability in
furtherance of the business of the Company, the Parent and its affiliates and he
will perform the duties assigned to him pursuant to this Paragraph 1. Executive
shall report to and be subject, at all times, to the direction and control of
the Company's and/or the Parent's Chief Executive Officer or such other
executive officers of the Company or the Parent as the Company's or the Parent's
Board of Directors may deem appropriate. Executive shall at all times be subject
to, observe and carry out such rules, regulations, policies, directions and
restrictions as the Company or the Parent may from time to
time reasonably establish. Executive shall initially be headquartered in the New
Port Richey, Florida area, but shall do such traveling as may be required of him
in the performance of his duties. In the event the Company relocates your
offices during your employment, at the Company's request, Executive shall
relocate subject to the Company's standard reimbursement policy for relocation
expenses. During the period of Executive's employment hereunder, Executive shall
not, directly or indirectly, accept employment or compensation from or perform
services of any nature for, any business enterprise other than the Parent or its
affiliates. Notwithstanding the foregoing, however, nothing herein shall be
deemed to prohibit Executive from investing his funds in securities of any
company if the securities of such company are listed for trading on a national
stock exchange or traded in the over-the-counter market and Executive's holdings
therein represent less than 1% of the total number of outstanding shares or of
other securities of such company.
2. Compensation.
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(a) Base Salary. As compensation for Executive's services, as provided
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in Paragraph 1 above, the Company will pay to Executive a base annual salary
("Base Salary") at the rate of $357,500 per annum. Such Base Salary shall be
reviewed by the Remuneration Committee of the Parent's Board of Directors from
time to time and any increase shall be wholly discretionary and based, among
other things, upon the Company's evaluation of Executive's performance.
Executive's Base Salary shall be payable in equal installments in accordance
with the Company's applicable payroll policy.
(b) Executive Incentive and Bonus Plans. Executive shall also be
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entitled to participate in such Company executive bonus and other incentive
plans as may be offered by the Company from time to time to Executives of
similar stature and responsibility. These may include performance bonus, stock
option and deferred compensation plans from time to time. The Company shall be
under no obligation to institute or continue such plans and may from time to
time amend, modify or terminate any such plans.
3. Executive Benefits. Executive shall be entitled to participate, to
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the extent that Executive is eligible under the terms and conditions thereof, in
any hospitalization or medical insurance plans, 401(k) plans or other employee
benefit plans which are generally available on a group basis to senior
executives of the Company's United States operations of which may be in effect
from time to time during the period of Executive's employment hereunder. The
Company shall be under no obligation to institute or continue the existence of
any Executive benefit plan described herein and may from time to time amend,
modify or terminate any such Executive benefit plan.
4. Vacations. Executive shall be entitled to a paid vacation (in addition
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to Company-wide holiday periods) during the period of Executive's employment by
the Company in accordance with the Company's vacation policies for senior
executives, as in effect from time to time.
5. Expenses. The Company shall reimburse Executive for expenses
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reasonably incurred by Executive in connection with the performance of
Executive's duties hereunder and the business of the Company upon submission of
appropriate vouchers and receipts and
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otherwise in accordance with the Company's travel and entertainment policy, as
in effect from time to time.
6. Confidential Information. Executive will hold in a fiduciary capacity
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for the benefit of the Company, the Parent and its affiliates all information,
knowledge and data relating to or concerned with their operations, sales,
pricing, budgets, plans, business and affairs (except such information as is
generally known in the industry), and Executive will not, at any time hereafter,
use, disclose or divulge any such information, knowledge or data to or for the
benefit of any Person other than to the Company or its designees or except as
may otherwise be required in connection with the business and affairs of the
Company and its affiliates.
7. Conflicts of Interest. Executive shall comply with the Company's
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standards of conduct policy and such other policies of the Company or the Parent
as may be in effect from time to time during the term of Executive's employment.
Copies of the Company's policies, as currently in effect, have been furnished to
Executive.
8. Restrictive Covenant. During the term of Executive's employment with
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the Company or its affiliates, Executive shall render his services exclusively
to the Parent and its affiliates. In addition, during the term of Executive's
employment hereunder, and for a period of one year thereafter, Executive shall
not, for himself, or on behalf of any other Person, directly or indirectly, or
by action in concert with others:
(a) solicit, induce or encourage any employee of the Parent or any of
its affiliates to terminate his or her employment or other relationship with the
Parent or any of its affiliates;
(b) hire any employee (or anyone who was an employee within the
preceding six months) of the Parent or any of its affiliates; or
(c) otherwise interfere with the relationship between the Parent or
any of its affiliates and any of its or their employees.
Nothing herein shall be deemed to limit Executive's obligations or the Company's
rights at law. Executive acknowledges that the provisions of this Paragraph 8
and the provisions of 6 and 7 are reasonable and necessary for the protection of
the Company and without the limited restrictions imposed by the provisions of
these paragraphs, the Company would suffer irreparable and immeasurable damage.
Executive therefore expressly agrees that the Company shall be entitled to
injunctive or other equitable relief to prevent the breach or threatened breach
by him of the provisions of these paragraphs and to secure their enforcement and
without the necessity of posting a bond.
9. Termination for Cause.
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(a) "Cause" means:
(i) the willful failure of Executive to perform the reasonable
duties assigned to him commensurate with his executive status for a period of at
least thirty consecutive
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days after Executive has received written warning thereof from the Chief
Executive Officer or Board of Directors of the Company or the Parent that
Executive's services will be terminated;
(ii) commission of any act of fraud or gross negligence by
Executive in the course of his employment by the Company, which, in the case of
gross negligence, has a materially adverse effect on the business or financial
condition of the Company, the Parent or any of its affiliates;
(iii) willful misrepresentation at any time by Executive to the
Company's or the Parent's Board of Directors or any executive officer of the
Company or of the Parent;
(iv) engagement by Executive in any conduct or the commission by
Executive of any act which is, in the reasonable opinion of the Company's or the
Parent's Board of Directors, materially injurious or detrimental to the
substantial interest of the Company, the Parent or any of its affiliates;
(v) breach by Executive of his obligations hereunder; or
(vi) a felony conviction of Executive that has a material impact
on the ability of Executive to perform the duties of his position.
(b) In addition to any other rights and remedies provided by law or
this Agreement, the Company may terminate Executive's employment hereunder
forthwith upon written notice for Cause. If Executive's employment by the
Company shall be terminated pursuant to this Paragraph 9, Executive shall be
entitled to receive only the Base Salary and benefits actually earned and
payable to Executive pursuant to 2 above through the date of the termination of
employment, together with any unreimbursed expenses incurred through the date of
termination. Executive shall not be entitled to receive any further salary,
bonus, expenses, benefits or other compensation of any kind hereunder accruing
or incurred following the date of termination. Executive acknowledges that,
unless otherwise provided for in any bonus plan and other incentive plans in
which Executive may be entitled to participate, upon any termination of
Executive's employment without Cause, no bonus with respect to any fiscal year
shall be payable unless Executive shall have been employed by the Company both
at the end of such fiscal year and on the date such bonus is otherwise paid to
other Executives of the Company.
10. Termination Without Cause. If the Company shall terminate Executive's
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employment on or before March 31, 2003 for any reason other than for Cause,
Executive shall be entitled to receive, as severance and damages and in exchange
for a general release in favor of the Company and its affiliates and the
promises made by Executive hereunder, and as Executive's sole and exclusive
right and remedy on account of such termination, a payment equal to 24 months'
Base Salary at the then current rate ("Termination Payment"). Executive shall
also be entitled to receive any approved unreimbursed business expenses and
other Executive benefits (as described above) to the date of termination.
Executive acknowledges that, unless otherwise provided for in any bonus plan and
other incentive plans in which Executive may be entitled to participate, upon
any termination of Executive's employment without Cause,
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no bonus with respect to any fiscal year shall be payable unless Executive shall
have been employed by the Company both at the end of such fiscal year and on the
date such bonus is otherwise paid to other Executives of the Company. The
Termination Payment shall be payable in installments when and as the same would
otherwise have been payable under the terms hereof commencing promptly following
the delivery of a general release in favor of the Company. If the Company shall
terminate Executive's employment without Cause after March 31, 2003, then,
unless otherwise agreed between Executive and the Company in writing,
Executive's Termination Payment equal to 12 months' Base Salary at the then
current rate.
11. Termination Without Cause Following Change in Control.
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(a) "Change in Control" means:
(i) With respect to the Parent, any of the following events:
A. if any individual or entity (a "Person") obtains control
of the Parent (within the meaning of Section 840 of the Taxes Act of 1988 of
England) as a result of making a general offer to acquire shares in the Parent,
or having obtained such control makes such an offer;
B. for the purposes of clause A, a Person shall be deemed
to have obtained control of the Parent if the Person and others acting in
concert with the Person have together obtained control of the Parent;
C. if any Person becomes bound or entitled to acquire
shares in the Parent under Sections 428 to 430F of the Companies Act of 1985 of
England or Articles 421 to 423 of the Companies (Northern Ireland) Order 1986 of
England, or if the Parent passes a resolution for voluntary winding up, or if an
order is made for the compulsory winding up of the Parent; or
D. if a court of competent jurisdiction sanctions a
compromise or arrangement with respect to the Parent under Section 425 of the
Companies Act of 1985 of England or Article 418 of the Companies (Northern
Ireland) Order 1986 of the laws of England.
(ii) With respect to a subsidiary or group of subsidiaries of
Parent which is or are the direct or indirect owner(s) of the businesses for
whom Executive performs his primary duties (an "Intermediate Parent") and is or
are organized under the laws of the United Kingdom, the occurrence of any of the
events described in clause (i) of this definition with respect to such
Intermediate Parent.
(iii) With respect to the Intermediate Parents:
A. any sale (in a single transaction or series of related
transactions (or other transfer or disposition) of 50% or more of the voting
stock of such Intermediate Parents, or of all or more than 50% of the
consolidated business or operating assets of such Intermediate Parents to a
third party unrelated to the Parent; or
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B. if Parent shall otherwise cease to be the beneficial
owner, directly or indirectly, of more than 50% of the voting stock of the
Intermediate Parents or shall cease to control a majority of the voting stock of
the Intermediate Parents.
(iv) With respect to the Company:
A. any sale (or other transfer or disposition) of 50% or
more of the voting stock of the Company, whether in a single transaction or a
series of related transactions, or of all or more than 50% of the consolidated
business or operating assets of the Company and its direct and indirect
subsidiaries to a third party unrelated to the Parent; or
B. if the Parent shall otherwise cease to be the beneficial
owner, directly or indirectly, of more than 50% of the voting stock of the
Company or shall cease to control a majority of the voting stock of the Company.
(v) With respect to a business group or unit of Parent for whom
Executive performs his or her primary duties (the "Primary Group"):
A. any sale (or other transfer or disposition), of 50% or
more of the voting stock of the Primary Group, whether in a single transaction
or a series of related transactions, or of all or more than 50% of the business
or operating assets of, the Primary Group to a third party unrelated to the
Parent (or any successor corporation); or
B. if the Parent shall otherwise cease to be the beneficial
owner, directly or indirectly, of more than 50% of the voting stock or assets of
the Primary Group or shall cease to control a majority of the voting stock or
assets of the Primary Group.
(b) If the Company shall terminate Executive's employment without
Cause within one year following a Change of Control, instead of the Termination
Payment under Paragraph 10, Executive shall be entitled to receive, as
severance, damages and in exchange for a general release in favor of the Parent
and its affiliates and the other promises made by Executive hereunder, and as
Executive's sole and exclusive right and remedy on account of such termination,
a Termination Payment equal to 24 months' Base Salary at the then current rate,
plus his full target bonus for the then current fiscal year, pro rated to his
date of termination plus an amount equal to his full target bonus calculated for
an additional 24 months (i.e. two years' target bonus). In such event, the
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Termination Payment shall be paid in a lump sum concurrently with Executive's
delivery of a general release in favor of the Company and its affiliates. Any
bonus with respect to any fiscal year of the Company ended prior to such Change
in Control shall be paid to Executive at the time it would otherwise be payable
as if Executive had remained employed by the Company without a Change in
Control. Executive shall also be entitled to receive any approved unreimbursed
business expenses and other Executive benefits (as described above) to the date
of termination.
12. Termination for Good Reason.
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(a) Executive may terminate Executive's employment with the Company,
and receive a Termination Payment as provided in this Paragraph upon the
happening of any of the following, which shall be considered "Good Reason":
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(i) the assignment of Executive without his consent to a
position having responsibilities or duties of a materially lesser status than
those contemplated by Paragraph 1 as they may be changed from time to time with
Executive's consent;
(ii) if Executive's place of business is relocated to a distance
of more than 100 miles from New Port Richey, Florida; or
(iii) upon a Change of Control provided Executive has given the
Company at least ten (10) days' prior written notice of his election to
terminate his employment and such notice is given within one year following a
Change of Control.
(b) In the event Executive terminates his employment for Good Reason
as provided in clauses (i) or (ii) of Paragraph 12(a), Executive shall be
entitled to a Termination Payment in the amount and manner as provided in
Paragraph 10 above; provided, however, that Executive shall have a duty to seek
employment and mitigate his damages. Executive shall promptly advise the Company
in the event that he secures other employment and shall respond to the Company's
inquiries from time to time concerning his employment status. Compensation (in
whatever form) earned by Executive on account of other employment or otherwise
for personal services rendered during the unexpired period during which
Termination Payments are to be made (without regard to when such compensation is
paid) shall be offset against and applied in reduction of the Company's
obligations hereunder. In the event Executive terminates his employment for Good
Reason as provided in clause (iii) of Paragraph 12(a), Executive shall be
entited to a termination payment in the amount and manner as provided in
Paragraph 11 above. Executive shall not otherwise be entitled to receive any
further compensation hereunder.
13. Notices. Any notice required, permitted or desired to be given
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pursuant to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or sent by
certified mail, return receipt requested, postage and fees prepaid, or by
national overnight delivery prepaid service to the parties at their addresses
set forth above. Either of the parties hereto may at any time and from time to
time hereafter change the address to which notice shall be sent hereunder by
notice to the other party given under this Paragraph 13. The date of the giving
of any notice sent by mail shall be the date of the posting of the mail, except
that notice of an address change shall be deemed given when received.
14. Assignment. Neither this Agreement nor the right to receive any
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payments hereunder may be assigned by Executive. It is the intention of the
parties hereto that Executive remain employed pursuant to the provisions hereof
by any successor of the Company or the Primary Group, whether by merger,
consolidation, acquisition of all or substantially all of the business or
assets, or otherwise, and the Company shall have the right to assign this
Agreement to any such successor in interest. This Agreement shall be binding
upon Executive, his heirs, executors and administrators and upon the Company,
its successors and assigns.
15. Patents and Other Property. Any interests in trademarks, patents,
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patent applications, inventions, developments and processes which Executive may
develop during the term of this Agreement relating to the fields in which the
Parent or its affiliates may then be engaged, shall belong to the Company.
Executive agrees to execute any trademark assignment or other instrument as the
Company may deem reasonably necessary to evidence, establish,
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maintain, protect, enforce and or defend any and all of the Company's interests
under this Paragraph 15. All such interests shall vest in the Company, whether
or not such instrument is requested, executed or delivered. If Executive shall
not so execute or deliver any such instrument after reasonable opportunity to do
so, the Company shall have the right to do so in Executive's name, place and
stead and the Company is hereby irrevocably appointed as Executive's
attorney-in-fact for such purpose, which power is coupled with an interest.
16. Executive's Representations and Warranties. Executive represents and
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warrants to the Company as follows:
(a) Executive has the unfettered right to enter into this Agreement on
the terms and subject to the conditions hereof, and Executive has not done or
permitted to be done anything which may curtail or impair any of the rights
granted to the Company herein.
(b) Neither the execution and delivery of this Agreement by Executive
nor the performance by Executive of any of Executive's obligations hereunder
constitute or will constitute a violation or breach of, or a default under, any
agreement, arrangement or understanding, or any other restriction of any kind,
to which Executive is a party or by which Executive is bound.
17. Indemnification. The Company agrees to hold harmless and indemnify
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Executive to the extent permitted by law against all damages and/or losses which
Executive may suffer as a result of any third party claim, action, suit or
proceeding to which he may become a party by reason of Executive's services as,
and/or for activities engaged in by Executive while Executive is acting as an
officer and/or Executive of the Company or any affiliate thereof; provided,
however, that no such indemnification shall be paid to the extent any such
damages or losses shall arise through the negligence, bad faith or misconduct of
Executive or the breach by Executive of any of Executive's obligations under
this Agreement. This indemnity shall survive the termination of this Agreement
and the release of the Company and its affiliates contemplated hereby.
18. Waiver. No course of dealing nor any delay on the part of either party
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in exercising any rights hereunder will operate as a waiver of any rights of
such party. No waiver of any default or breach of this Agreement shall be deemed
a continuing waiver or a waiver of any other breach or default.
19. Governing Law. This Agreement shall be governed, interpreted and
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construed in accordance with the laws of the State of Florida applicable to
agreements entered into and to be performed entirely therein.
20. Partial Invalidity. If any clause, paragraph, section or part of this
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Agreement shall be held or declared to be void, invalid or illegal for any
reason by any court of competent jurisdiction, such provision shall be
ineffective but shall not in any way invalidate or affect any other clause,
paragraph, section or part of this Agreement.
21. Modifications. Executive acknowledges and agrees that the Company has
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not made nor is making, and in executing this Agreement Executive has not relied
upon, any representations, promises or inducements except to the extent that the
same are expressly set
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forth in this Agreement. This Agreement shall not be altered or modified except
in writing, duly executed by the parties hereto.
22. Binding Effect. This document is not intended to constitute an
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Agreement, commitment, or offer of employment binding upon the Company until and
unless executed on behalf of the Company, as provided below, and no
representative of the Company has authority to make any commitment or to give
any assurance to the contrary.
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If the foregoing correctly sets forth our understanding and agreement,
please sign where indicated below.
Very truly yours,
ENODIS CORPORATION
By: /s/ Andrew Allner
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Name: Andrew Allner
AGREED TO AND ACCEPTED:
/s/ DAVID MCCULLOCH
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DAVID MCCULLOCH
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