Unassociated Document


     

      
        

      

    

    Exhibit
4.9

     

     

     

    


     

    
      		


    

     

    24
February 2010

    Mr. John
W. Zimmerman

    1551
Wewatta Street

    Denver

    CO
83202

    USA

    


    Dear
John:

    


    Your
Employment with Tomkins plc

    


    This
letter amends your employment letter dated 31 October 2007 (the “Agreement”) as
follows:

    


    
      	
              A.

            	
              Paragraph
      9, Termination, is
      replaced in its entirety with the
following:

            


    

    


    


    
      	
               
      

            	
              “9.

            	
              Termination:

            


    

    


    
      	
               
      

            	
              (a)

            	
              Your
      employment will terminate on:  (i) the acceptance by the Company
      of your voluntary resignation as of its effective date, provided that the
      Company is given not less than six (6) months prior written notice of your
      intention to resign; (ii) at the Company’s option, your disability in a
      circumstance where you are entitled to claim benefits under the Company’s
      long term disability policy, subject to any statutory requirement to
      accommodate such disability; (iii) your death; (iv) your Retirement; or
      (v) your dismissal by reason of your knowing and material breach of any of
      the provisions of paragraph 8 or 10 or any other material terms of this
      agreement.  In any of such events, you will not be entitled to
      any compensation or benefits other than (x) Base Salary earned through the
      Termination Date, which shall be paid within thirty (30) days of your
      Termination Date, (y) any amount earned or owing to you but not yet paid,
      which amount shall be paid no later than the Short-term Deferral Deadline,
      and (z) any other benefits to which you are entitled, if any, in
      accordance with the provisions of applicable plans, programs and
      arrangements of the Company and its affiliates (the amounts described in
      (x), (y) and (z) are collectively referred to hereinafter as the “Accrued
      Obligations”).  Notwithstanding the foregoing, you may also be
      entitled to the rights and prorated Annual Bonus provided by subparagraph
      9(d).  For purposes of this paragraph 9, the phrase “Termination
      Date” means either the date on which your employment terminates pursuant
      to the first sentence of this subparagraph 9(a) or the effective date of a
      notice given by the Company pursuant to subparagraph 9(b), as the case may
      be.  For purposes of this paragraph 9, the phrase “Short-term
      Deferral Deadline” means the last day on which a payment would qualify as
      a short-term deferral under Treas. Reg. § 1.409A-1(b)(4).  A
      payment that occurs no later than the 15th day of the third month
      following your first taxable year in which the right to the payment is no
      longer subject to a substantial risk of forfeiture (within the meaning of
      Section 409A of the Internal Revenue Code) or the 15th day of the third
      month following the end of the Company's first taxable year in which the
      right to the payment is no longer subject to a substantial risk of
      forfeiture generally qualifies as a payment before the Short-Term Deferral
      Deadline.

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
               
      

            	
              (b)

            	
              Unless
      terminated earlier under subparagraph 9(a), the Company may terminate your
      employment by giving you not less than 12 months' notice in writing at any
      time (the “Termination Notice”). At any time after it gives such
      notice of termination the Company shall not be obliged to provide you with
      work and it may, in its discretion, take any one or more of the following
      steps in respect of any unexpired period of
  notice:

            


    

    


    
      	
               
      

            	
              (i)

            	
              require
      you to comply with such reasonable conditions as it may specify in
      relation to attending at, or remaining away from, the place(s) of business
      of the Company;

            


    

    
      	
               
      

            	 


    

    
      	
               
      

            	
              (ii)

            	
              withdraw
      any powers vested in, or duties assigned to, you;
  or

            


    

    


    
      	
               
      

            	
              (iii)

            	
              require
      you to forthwith resign as a director of the Company and from all offices
      held by you in any affiliate of the Company and from all other
      appointments or offices which you hold as nominee or representative of the
      Company or any affiliate of the Company and, if you fail so to do, the
      Company is irrevocably authorised by you to appoint some person in your
      name and on your behalf to execute such documents and to do such other
      things as are reasonably necessary to give effect to such
      resignations;

            


    

    


    provided
that you shall continue to receive your Base Salary, Annual Bonus and Benefits
provided for elsewhere in this agreement (collectively the “Compensation”) until
the Termination Date, and provided that you shall continue to be eligible to
receive variable compensation and any other awards or entitlements provided for
elsewhere in this agreement, without any diminution or reduction resulting from
the operation of this clause. The Company shall procure that you are treated as
a Good Leaver for such awards or entitlements for the purposes of any relevant
plans.

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (c)

            	
              If
      your employment is terminated pursuant to subparagraph 9(b), you will not
      be entitled to any compensation or benefits after the Termination Date
      other than (i) the Accrued Obligations, (ii) any accrued (but not taken)
      vacation pay with pro ration for any partial year of employment, which
      amount shall be paid within thirty (30) days of the Termination Date,
      (iii) reasonable outplacement services actually incurred by you which
      are directly related to the termination of your employment with the
      Company and which are incurred only during a 6-consecutive month period
      that ends within or with the 12-month period following the Termination
      Date, and (iv) the rights and prorated Annual Bonus to which you may be
      entitled under subparagraph 9(d).

            


    

    


    
      	
               
      

            	
              (d)

            	
              Provided
      you are a “Good Leaver” as of the Termination Date, upon such date: (i)
      the restrictions on trading in any Bonus Shares shall have no further
      effect and (ii) you shall vest in and be paid no later than the Short-term
      Deferral Deadline such of your unpaid Deferred Shares in such proportion
      as the number of months since the date of grant of the corresponding Bonus
      Shares bears to 36 months.  In the event of a termination of
      your employment other than for dismissal for cause or for breach pursuant
      to subparagraph 9(a)(v), the Company will also pay your Annual Bonus on a
      prorated basis to the Termination Date, such prorated amount to be paid to
      you at the time the annual bonuses for the Company are paid to all
      employees, but in no event later than the Short-term Deferral
      Deadline.

            


    

    


    
      	
               
      

            	
              (e)

            	
              If,
      after the Company provides you Termination Notice in accordance with
      subparagraph 9(b), your employment is terminated pursuant to an event
      described in subparagraph 9(a), you shall be considered to have terminated
      your employment pursuant to subparagraph 9(a).  By way of
      illustration, in the event you knowingly and materially breach any of the
      provisions of paragraph 10 after a Termination Notice has been given
      pursuant to subparagraph 9(b), the Company may elect to immediately
      terminate your employment pursuant to subparagraph
  9(a)(v).

            


    

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (f)

            	
              In
      the event that any actions taken by the Company after the giving of a
      Termination Notice cause or may be deemed to cause a “separation from
      service” under Treas. Reg. § 1.409A-1(h)(1) then, notwithstanding the
      foregoing provisions of this paragraph 9, to the extent the amount of the
      Compensation does not exceed the Separation Pay Exemption Amount, such
      amount shall be exempt from Section 409A of the Internal Revenue Code
      (“Section 409A”) and shall be paid in strict accordance with the foregoing
      provisions of this paragraph 9.  The amount of the Compensation
      that is in excess of the Separation Pay Exemption Amount shall be subject
      to the requirements of Section 409A and shall be paid in accordance with
      the foregoing provisions of this paragraph 9, unless you are a Specified
      Employee upon your separation from service in which case the excess amount
      shall be paid as follows:  (i) no portion of the excess amount
      may be paid, or commence to be paid, earlier than 6 months after your
      separation from service, (ii) in the case of a payment that would have
      otherwise been paid during such 6-month period, the payment shall be made
      on the first day of the seventh month following the date on which you
      separated from service, (iii) in the case of instalment payments that
      would have otherwise been paid during such 6-month period, such instalment
      payments shall be accumulated and paid on the first day of the seventh
      month following the date on which you separated from service and the
      remaining instalments shall be paid in strict accordance with the
      foregoing provisions of this paragraph 9, and (iv) the determination of
      the Compensation payable under this agreement that may be considered
      excess amounts shall be made in the following order (those that are listed
      first shall be considered not to exceed the Separation Pay Exemption
      Amount to the maximum extent possible): (I) Benefits, then (II) any
      payments in cash that are to be paid in instalments, then (III) any
      payments in cash that are to be paid in a lump sum, and (IV) any noncash
      payments.  For purposes of this subparagraph 9(f), the phrase
      “Separation Pay Exemption Amount” means an amount equal to two times the
      lesser of (x) the sum of your annualized compensation based upon the
      annual rate of pay for services provided to the Company for your taxable
      year preceding the taxable year in which you separate from service
      (adjusted for any increase during that year that was expected to continue
      indefinitely if you had not separated from service); or (y) the maximum
      amount that may be taken into account under a qualified plan pursuant to
      Section 401(a)(17) of the Internal Revenue Code for the year in which you
      separate from service, and the phrase “Specified Employee” shall be
      defined in accordance with Treas. Reg. §1.409A-1(j) and such rules as many
      be established by the Company (including its delegate) from time to
      time.

            


    

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (g)

            	
              The
      terms and conditions of this letter agreement are in lieu of and not in
      addition to and in full satisfaction of any and all other claims and
      entitlements which you have or may have upon the termination of your
      employment in any of the circumstances contemplated by this agreement, by
      statute or at common law including, without limitation for severance pay
      entitlement, notice of termination or pay in lieu thereof, salary,
      bonuses, automobile allowances, vacation and/or vacation pay and other
      remuneration and benefits payable or otherwise provided to you in relation
      to your employment by the Company (including, specifically, any preceding
      employment by the Company or the Tomkins Group); and the compliance by the
      Company with these terms will effect a full and complete release of the
      Company for any and all claims which you may have then for whatever reason
      or cause in connection with your employment and the termination of it
      other than those obligations specifically reflected in this letter
      agreement.  By agreeing to the terms of this letter agreement,
      and in order to be entitled to the Compensation, benefits and other rights
      provided by subparagraphs (b) and(c), you must effectively execute such
      releases (including, but not limited to, a release immediately following
      the delivery of Termination Notice and a supplemental release immediately
      following the Termination Date) as the Company, in its sole discretion,
      deems necessary or advisable and deliver resignations from all offices,
      positions and directorships held with the Company or any of the Tomkins
      Group if and when requested by the Company.  In the case of any
      defined benefit pension plan of which you are a member as at the date of
      the termination of your employment, service accrual will cease at the date
      of termination of employment and you will either become a pensioner or
      deferred pensioner in accordance with the rules of that pension plan
      including any “Good Leaver” provisions where applicable.  In the
      event that you fail to execute such release as the Company may require
      pursuant to this subparagraph 9(g) your employment shall terminate on the
      day on which Termination Notice is given by the Company (or such later
      date as the Company may specify in writing) and the Company shall (i) not
      treat you as a “Good Leaver” for the purposes of the Annual Bonus
      Incentive Plan and (ii) shall not (and shall not be obliged to) make any
      payment to you or provide any benefits to you following the termination of
      your employment under this paragraph 9 or otherwise save in respect of
      salary accrued and earned up to the date of termination.  In the
      event that you bring any claim against the Company in respect of the
      termination of your employment (whether or not you have signed a release)
      the Company shall (x) require you to repay any sums paid to you after the
      giving of a Termination Notice under subparagraph 9(b) above and (y)
      require you to use your best endeavours to find alternative employment as
      soon as possible following the termination of your employment with the
      Company and (z) set off any sums earned (or sums that you could reasonably
      be expected to have earned if you have used your best endeavours) against
      any award of damages or compensation ordered to be paid to you by a court
      of competent jurisdiction.”

            


    

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              B.

            	
              Subparagraph
      c) of the definition of “Benefits” of
      Schedule A is replaced in its entirety with the
  following:

            


    

     

    
      	
               
      

            	
              “c)

            	
              Five
      weeks of vacation in respect of each completed twelve (12) month period,
      to be taken at such time or times as are mutually convenient to you and
      the Company, but not payment in lieu thereof.  Unused vacation
      cannot be carried forward; and”

            


    

    


    


    
      	
              C.

            	
              Except
      as modified herein the Agreement remains in full force and effect
      unchanged.

            


    

    


    


    If the
revisions to your terms of employment as set out in this letter are acceptable
to you, please sign and date three copies in the places indicated and return two
signed and dated copies to the undersigned, at which time those revisions will
become effective.

    


    Yours
very truly

    


     

    


    James
Nicol

    Chief
Executive Officer

    


    


    


    I hereby
accept the revisions to the terms and conditions of my employment as set out
above and acknowledge that the Agreement, as modified by this letter, contains
all the terms and conditions of my employment with the Company, as and from the
date hereof, and that no other terms, conditions or representations form
part of this agreement.

    


    
      	
              SIGNED,
      SEALED & DELIVERED

              In
      the presence of:

               

               

            	 
      	 
      	 
      
	
              Witness

            	 
      	 
      	
              [name
      of employee]

            
	
               
      

               

            	 
      	 
      	 
      
	 
      	 
      	 
      	
              Date