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EXHIBIT 10.1
AMENDMENT NO. 1 TO THE AMENDED
EMPLOYMENT RETENTION AGREEMENT
BETWEEN
SPECIALTY EQUIPMENT COMPANIES, INC.
AND
JEFFREY P. RHODENBAUGH
WHEREAS, Specialty Equipment Companies, Inc. (the "Company") and Jeffrey P.
Rhodenbaugh (the "Executive") entered into an Amended Employment Retention
Agreement dated as of July 12, 2000 (the "Agreement");
WHEREAS, the Company and the Executive wish to amend the Agreement to
modify the Executive's ability to voluntarily resign for Good Reason and to
provide for other modifications as set forth below (the "Amendment");
WHEREAS, the Company is entering into an Agreement and Plan of Merger, of
even date herewith, with United Technologies Corp. and Solar Acquisition Corp.
(collectively "UTC") pursuant to which UTC will acquire all shares of common
stock of the Company (the "Merger Agreement");
WHEREAS, the Company and the Executive wish for the Amendment provided
herein to be effective only upon the closing of the transaction set forth in the
Merger Agreement (the "Closing"); and
WHEREAS, all defined terms used herein shall have the meanings set forth in
the Agreement unless specifically defined herein.
NOW, THEREFORE, for mutual consideration the receipt of which is hereby
acknowledged, the Agreement is hereby amended as follows:
1. Section 1 of the Agreement is hereby amended by replacing such section in
its entirety with the following:
1. Term of Employment. The Company hereby agrees to employ the Executive,
and subject to Section 3 of this Agreement the Executive hereby agrees to be
employed by the Company, for the period commencing on the Original Effective
Date and ending on the second anniversary of the Closing, unless terminated
earlier in accordance with Section 3 of this Agreement (the "Employment
Period").
2. Section 2(a)(i) of the Agreement is hereby amended by replacing the first
two sentences thereof with the following:
(i) As of the Closing and during the Employment Period thereafter, the
Executive's position (including status, perquisites, offices, titles, reporting
requirements and responsibilities), authority and duties shall be that of a
Level One UTC Executive.
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3. Section 2(b)(i) of the Agreement is hereby amended by replacing the first
sentence thereof in its entirety with the following:
As of the Effective Date and during the Employment Period thereafter, the
Company shall pay or cause to be paid to the Executive a base salary in cash at
an annual rate of (A) with respect to the portion of the Employment Period on or
before the Closing, at least $400,000; and (B) with respect to the portion of
the Employment Period thereafter, at least $275,000 (the "Guaranteed Base
Salary").
4. Section 2 of the Agreement is hereby amended by adding the following new
Sections 2(b)(iv), (v) and (vi): =
(iv) Following the Closing, and during the Employment Period, the
Company shall pay or cause to be paid to the Executive a transition payment
such that when added to the actual salary and bonus paid during the year
the total is no less than the annual base salary plus target bonus of
Executive immediately prior to the Closing. The transition payment will be
paid in monthly installments, less tax withholding. The transition payment
shall not be treated as compensation under any of the Company's retirement,
welfare, executive compensation or other plans, provided, however, that the
Executive shall be permitted to defer the transition payment under the UTC
deferred compensation plan.
(v) The Company shall pay a bonus consistent with the Company's cash
incentive plan benefit for the Company's entire fiscal year ending January
31, 2001 (the "FYE 2001 Bonus"). The FYE 2001 Bonus shall be paid in March,
2001. Beginning on January 1, 2001, in lieu of the cash incentive plan
described in subsection (ii) for periods after the close of the Company's
fiscal year ending January 31, 2001, the Executive shall be eligible to
participate in the annual Incentive Compensation ("AIC") program of UTC at
the target ranges appropriate to Executive's compensation level and with
business performance and individual performance targets and objectives
consistent with program guidelines as applicable to peer executives.
(vi) Beginning on January 1, 2001, in lieu of participation in the
Long-Term Incentive Plan described in subsection (iii), the Executive shall
be entitled to participate in the Continuous Improvement Incentive Plan
("CIIP") of UTC and be eligible for grants of stock options in amounts and
on terms and conditions appropriate to Executive's compensation level
consistent with program guidelines as applicable to peer executives.
5. Section 3(c) of the Agreement is hereby amended by replacing such section
in its entirety with the following:
(c) Good Reason. The Executive may terminate the Executive's employment for
Good Reason (A) at any time during the Employment Period in the case of
Good Reason as
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described in clauses (i), (ii) or (iii) below, or (B) on or after the second
anniversary of the Closing in the cases of Good Reason as described in clause
(iv) below. For the purposes of this Agreement, "Good Reason" means any one of
the following events:
(i) any failure by the Company to comply with any provision of Sections
2(b)(i) (as modified by this Amendment) or 2(b)(iv), 2(b)(v), or 2(b)(vi), other
than an isolated, insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(ii) any failure by the Company to comply with and satisfy Section 11(c)
of this Agreement;
(iii) any reassignment of the Executive, without his written consent, to a
work location located more than 50 miles from his work location at the Effective
Date; or
(iv) a material change by the Company in the Executive's title, authority,
working conditions, function reporting responsibilities, status or any other
action by the Company which would cause the Executive's position with the
Company to become one of materially less responsibility, importance, or scope
from the position and attributes thereof described in Section 2(a)(i) above, or
which material action or change would unreasonably add to the burdens of his
duties, excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive, provided, however, that
the hiring of additional executives whose responsibilities overlap those of the
Executive shall not necessarily constitute Good Reason.
6. Section 4(a)(i) of the Agreement is hereby amended by inserting before the
final period thereof the following:
; provided, however, that any amount payable under this Section 4(a)(i)
shall be decreased by the total amount of transition payment paid to the
Executive during the term of this Agreement in accordance with Section 2(b)(iv)
and provided further, that any amount payable under this Section 4(a)(i) shall
be based upon the Guaranteed Base Salary in effect immediately prior to the
Closing, and provided finally that if the amounts specified in Section 4(a)(i)
have not become payable before the second anniversary of the Closing and
Executive has not been terminated by the Company for Cause or resigned without
Good Reason, then the amounts specified in Section 4(a)(i) shall be paid to
Executive in a lump sum on or about January 2, 2003, whether or not the
Executive remains employed by the Company following the second anniversary of
the Closing.
7. Section 5(b) of the Agreement is hereby amended by deleting the phrase
"Sections 3(c)(iii) and 4(a)(iii)" and replacing it with "Sections 4(a)(i) and
4(a)(ii)(A)".
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8. Section 7 of the Agreement is hereby amended by replacing such section in
its entirety with the following:
7. Non-competition. The Executive agrees that while he is employed
hereunder and for a period of one year following the termination of the
Executive's employment for any reason, and occurring at any time, including any
time after the end of the Employment Period, the Executive shall not be employed
or enter into or engage in or be connected with or engage to work for any
individual, firm or corporation which is engaged in or connected with any
business that competes, directly or indirectly, with the Company (including,
without limitation, in the supply of equipment for the food retail, food service
or beverage industries), unless he obtains the express written approval of the
Vice President, Human Resources of Carrier Corporation (or his or her functional
equivalent), who shall grant or withhold consent in his or her sole discretion
after the Executive's full disclosure of the nature of the intended arrangement.
The obligations of this Section 7 shall survive the termination of this
Agreement.
9. The amendments made by this Amendment shall be effective from and after the
Closing conditional on the occurrence of the Closing on or before March 1, 2001.
If for any reason the Closing does not occur on or before March 1, 2001, the
amendments made by this Amendment shall have no effect.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Amendment as of the 13th day of October, 2000.
EXECUTIVE: JEFFREY P. RHODENBAUGH
/s/ Jeffrey P. Rhodenbaugh
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Signature
COMPANY: SPECIALTY EQUIPMENT COMPANIES, INC.
By: /s/ Robert R. Friedl
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Name: Robert R. Friedl
Title: CFO