EXHIBIT 4.19
[LOGO OF ENODIS]
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Enodis Corporation o 2227 Welbilt Boulevard o New Port Richey, FL 34655 o USA
Tel: 727-375-7010 o Fax: 727-375-7328 o www.enodis.com
As of October 1, 2001
Mr. David Odum
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.
(a) Executive shall be employed by the Company on the terms and
conditions set forth herein as an Executive and shall initially serve as the
Enodis Group President, Retail and be assigned such duties and responsibilities
relating to the retail food equipment 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, the 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.
(a) Base Salary. As compensation for Executive's services, as provided
in Paragraph 1 above, the Company will pay to Executive a base annual salary
("Base Salary") at the rate of $324,500 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
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 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 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
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 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
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
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 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 Paragraphs 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.
(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 Paragraph 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 or other incentive plan 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
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"). Such Termination
Payment will be payable as follows: (i) 12 months' Base Salary in a lump sum and
(ii) 12 months Base Salary in equal installments as and when payable under the
terms hereof. 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
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Termination Payment shall be equal to 12 months' Base Salary at the then
current rate. Such Termination Payment will be payable in equal installments as
and when payable under the terms hereof. The installment Termination Payments
will commence promptly after, and the lump sum Termination Payment will be made
concurrently with, the delivery by Executive of a general release in favor of
the Company and its affiliates. 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 or other incentive plan 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.
11. Termination Without Cause Following Change in Control.
(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 substantially all of the
businesses for whom Executive performs his primary duties (including
Kysor/Warren) (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
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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
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 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.
The Retail Group is currently Executive's Primary Group and consists of four
businesses: Kysor/Warren, Kysor Panel Systems, Austral and Belshaw Bros.
Notwithstanding the foregoing, a Change of Control shall not be deemed to have
occurred under clause (iii), (iv) or (v) above unless the stock and/or business
or assets disposed of includes at least three of the four businesses in the
Primary Group (a "Primary Group Disposal").
(b) Executive's employment will be deemed to automatically terminate upon a
Primary Group Disposal, provided that if requested by the Company, Executive
shall continue his employment hereunder for up to 90 days following a Primary
Group Disposal. If (i) the Company shall terminate Executive's employment
without Cause within twelve (12) months following a Change in Control or (ii) a
Primary Group Disposal shall occur (and Executive's employment shall terminate
as provided above) then, in either such case, 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,
his full target bonus for the then current year, pro rated to the date of his
termination plus an amount equal to his full target bonus calculated for an
additional 24 months
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(i.e., two years' target bonus). In either such event, after termination of
Executive's employment, the 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. Executive shall also be entitled to receive any
approved unreimbursed business expenses and other Executive benefits (as
described above) to the date of termination. Any bonus with respect to any
fiscal year of the Company ended prior to a Change in Control or a Primary Group
Disposal shall also 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 or a Primary Group Disposal. Notwithstanding the foregoing, if the
termination occurs following a Change of Control under clause (iii), (iv) or (v)
above or after a Primary Group Disposal and following such Change of Control or
Primary Group Disposal the Company or the Parent continues to be the beneficial
owner of the Kysor/Warren business, then Executive shall not be entitled to a
Termination payment unless prior to such termination, Executive shall have
provided to the satisfaction of the Company for appropriate senior
management/succession planning for the Kysor/Warren business and the hiring and
training of a permanent President and Vice President of Engineering each of whom
shall have been approved by Kysor/Warren's Board of Directors.
12. Termination for Good Reason.
(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":
(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.
(b) In the event Executive terminates his employment for Good Reason,
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. Executive shall not otherwise be entitled
to receive any further compensation hereunder.
13. Notices. Any notice required, permitted or desired to be given 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
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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 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, 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, 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
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
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.
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18. Waiver. No course of dealing nor any delay on the part of either party
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
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
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
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 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
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 Odum
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DAVID ODUM
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