<PAGE> 1
EXHIBIT 10.1
AMENDED
EMPLOYMENT RETENTION AGREEMENT
BETWEEN
SPECIALTY EQUIPMENT COMPANIES, INC.
AND
JEFFREY P. RHODENBAUGH
<PAGE> 2
TABLE OF CONTENTS
PAGE
----
1. Employment. 1
(a) Initial Term 1
(b) Extension 1
2. Terms of Employment. 1
(a) Position and Duties 1
(b) Compensation 2
(c) Compensation for Lost Benefits 3
3. Termination of Employment. 3
(a) Death or Permanent Disability 3
(b) Cause 3
(c) Good Reason 4
(d) "Voluntary Termination" 5
(e) Notice of Termination 5
(f) Termination Date 5
4. Obligations of the Company Upon Termination. 5
(a) Termination of Employment for Good Reason or Other Than
for Cause 5
(b) Termination of Employment for Cause or Voluntary
Termination 6
5. Change of Control. 6
(a) Definition 6
(b) Effect of Change of Control 7
(c) Additional Payments 7
6. Confidential Information. 7
7. Non-Competition. 8
8. Remedies. 8
9. Arbitration. 8
10. Full Settlement. 8
11. Successors. 9
2
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
(a) Of Executive 9
(b) Of Company 9
(c) Assumption 9
12. Miscellaneous. 9
(a) Payments after Death 9
(b) Nonalienation 9
(c) Illegality 9
(d) Amendment 9
(e) Notices 10
(f) Counterparts 10
(g) Governing Law 10
(h) Withholding 10
(i) Entire Agreement 10
13. Indemnification. 10
3
<PAGE> 4
AMENDED EMPLOYMENT RETENTION AGREEMENT
THIS AMENDED EMPLOYMENT RETENTION AGREEMENT ("Agreement") dated as of
_________________ ____, 2000 (the "Effective Date"), is made by and between
Specialty Equipment Companies, Inc., a Delaware corporation having its principal
place of business in the State of Illinois (the "Company"), and Jeffrey P.
Rhodenbaugh (the "Executive"), a resident of St. Charles, Illinois.
This Agreement amends and restates effective as of the Effective Date
the Employment Retention Agreement (the "Original Agreement") by and between the
Company and the Executive dated as of May 1, 1997 (the "Original Effective
Date").
The Board of Directors of the Company (the "Board") has determined that
it is in the best interest of the Company and its stockholders to assure that
the Company will have the continued employment and dedication of the Executive.
Accordingly, in consideration of the mutual covenants of this
Agreement, and other good and valuable consideration, receipt of which is hereby
acknowledged, the Company and the Executive agree as follows:
1. Employment.
(a) Initial Term. 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 third anniversary of the
Original Effective Date (the "Initial Term").
(b) Extensions. As of the first anniversary of the Original Effective
Date, the term of employment under this Agreement shall automatically
be extended daily so that the term of employment under this Agreement
will at all times be no less than two years, unless the Company gives
the Executive written notice of its intent not to extend the
Agreement, or the Executive gives the Company written notice of the
Executive's intent not to extend the Agreement. If the Company gives
the Executive written notice of its intent not to extend the Agreement
or the Executive gives the Company written notice of the Executive's
intent not to extend the Agreement, the term of employment under this
Agreement shall end on the later of the end of the Initial Term or the
second annual anniversary of the date such notice is given. The
Initial Term and each extension of the term of employment under this
Agreement shall be referred to as the "Employment Period."
2. Terms of Employment.
4
<PAGE> 5
(a) Position and Duties.
(i) As of the Effective Date 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 the
Company's Chief Executive Officer reporting directly to the
Company's Board of Directors. Such position (including status,
perquisites, offices, titles, reporting requirements and
responsibilities), authority and duties shall be at least
commensurate in all material respects with the most significant
of those held, exercised or assigned at any time during the
365-day period immediately preceding the Effective Date. The
Executive's services shall be performed at the location where the
Executive was employed immediately preceding the Effective Date
or at an equivalent office and location not more than 50 miles
from such location.
(ii) During the Employment Period, and excluding any periods of
vacation, sick leave or disability to which the Executive is
entitled, the Executive agrees to devote the Executive's full
business attention and time to the business and affairs of the
Company and, to the extent necessary to discharge the duties
assigned to the Executive hereunder, to use the Executive's best
efforts to perform such duties faithfully and efficiently.
Notwithstanding such requirement the Executive may serve on
corporate, civic or charitable boards or committees, deliver
lectures, fulfill speaking engagements or teach at educational
institutions, and manage personal or family investments, provided
such activities do not significantly interfere with the
performance of Executive's duties under this Agreement. To the
extent that any such activities have been conducted by the
Executive during the Employment Period before the Effective Date,
the continued conduct of such activities (or activities similar
in nature and scope) after the Effective Date shall not be deemed
to interfere with the performance of the Executive's duties under
this Agreement.
(b) Compensation.
(i) Base Salary. 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 ("Guaranteed Base
Salary"), in cash at an annual rate of at least $400,000. The
Guaranteed Base Salary shall be paid in the manner consistent
with the Company's payroll practices from time to time but such
payroll practices shall in no event be less favorable to
5
<PAGE> 6
Executive than such payroll practices in effect at any time
during the 365-day period immediately preceding the Effective
Date. During the Employment Period, the Guaranteed Base Salary
may be increased at any time and from time to time as shall be
determined in the discretion of the Compensation Committee of the
Board, subject to approval of the Board. An increase in
Guaranteed Base Salary shall not serve to limit or reduce any
other obligation to the Executive under this Agreement. The
Guaranteed Base Salary shall not be reduced after any such
increase, and the term "Guaranteed Base Salary" as used in this
Agreement shall refer to the Guaranteed Base Salary as so
increased.
(ii) Cash Incentive Plan. The Executive shall be entitled to
participate in the cash incentive plan of the Company, subject to
the discretion of the Compensation Committee of the Board and to
approval by the Board. Such cash incentive plan shall have a
target bonus percentage for Executive of at least 100% of the
Executive's Guaranteed Base Salary upon attainment of such target
performance goals as the Compensation Committee, with the
approval of the Board, shall from time to time establish.
(iii) Other Benefits. The Executive shall be entitled to
participate in (A) all other bonus or incentive plans (including
without limitation long-term incentive plans such as the
Company's Amended and Restated Executive Long-Term Incentive Plan
(the "Long-Term Incentive Plan"), savings and retirement plans,
practices, policies and programs applicable to other senior
executives of the Company, (B) welfare benefits plans (including,
without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, dependent life,
accidental death and travel, accident insurance plans and
programs) applicable to other senior executives of the Company,
and (C) fringe benefits, reimbursement of expenses practices,
policies and procedures, vacation and vacation benefits, and
office and support staff (including, without limitation,
exclusive personal secretarial assistance) applicable to other
senior executives of the Company. The benefits under this Section
2(b)(iii) shall not be less favorable in the aggregate to
Executive than those in effect for the Executive at any time
during the 90-day period immediately preceding the Effective
Date.
(c) Compensation for Lost Benefits. Notwithstanding Sections 2(b)(ii)
and (iii), the Executive's benefits under Sections 2(b)(ii) and (iii)
may be reduced or eliminated if and to the extent the Company
furnishes the Executive with compensation or benefits with
6
<PAGE> 7
an actual value to the Executive substantially equivalent to the value
of the benefits of which he has been deprived.
3. Termination of Employment.
(a) Death or Permanent Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the
Employment Period and the Company may terminate Executive's employment
during the Employment Period for Permanent Disability. Permanent
Disability of the Executive shall be deemed to have occurred on the
date on which the Executive is certified as having incurred a
Permanent Disability by a physician who is selected by the Company or
its insurers and who is acceptable to the Executive or the Executive's
legal representative. If the Executive incurs a Permanent Disability
during the Employment Period, the Company shall give to the Executive
written notice in accordance with Section 3(e) of this Agreement of
its intention to terminate the Executive's employment. In such event,
the Executive's employment with the Company shall terminate effective
on the 30th day after receipt of such notice by the Executive (the
"Disability Effective Date"), unless within 30 days after such
receipt, the Executive shall have returned to full-time performance of
the Executive's duties. For purposes of this Agreement, "Permanent
Disability" means any mental or physical condition which renders the
Executive with or without accommodation unable or incompetent to carry
out the job responsibilities which the Executive held or the tasks to
which the Executive was assigned at the time the disability was
incurred, and which is expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than
365 days.
(b) Cause. The Company may terminate Executive's employment during the
Employment Period for Cause. For purposes of this Agreement, "Cause"
means an Executive's habitual neglect of the Executive's duties (other
than on account of disability), habitual reckless conduct or willful
misconduct in carrying out his duties, breach of fiduciary duty to the
Company involving improper personal profits by the Executive, or
conviction of a felony involving moral turpitude, except that Cause
shall not mean:
(i) any act or omission believed by the Executive in good
faith to have been in or not opposed to the interest of the
Company;
(ii) any act or omission with respect to which a determination
could properly have been made by the Board that the Executive met
the applicable standard of conduct under which indemnification or
reimbursement is permitted under the by-laws of the Company, or
under the laws and regulations under which the Company is
governed, in each case in effect at the time of such act or
omission, or
7
<PAGE> 8
under this Agreement; or
(iii) any act or omission with respect to which notice of
termination of employment of the Executive is given more than 12
months after the earliest date on which any member of the Board
who is not a party to the act or omission knew of such act or
omission.
(c) Good Reason. The Executive may terminate Executive's employment
during the Employment Period for Good Reason. For purposes of this
Agreement, "Good Reason" means any one of the following events:
(i) 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 hereunder;
(ii) any failure by the Company to comply with any of the
provisions of Section 2(b) of this Agreement (as modified by
Section 2(c) of this Agreement), 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;
(iii) the Company incurs a Change of Control and Executive
provides the Company with a Notice of Termination in accordance
with Section 3(e) within any period of beginning on the date of
the Change of Control and ending on the first to occur of (i) the
date the board of directors of the Successor Company approves
Executive's employment as chief executive officer of the
Successor Company with Comparable Reporting Status, or (ii) the
fifth annual anniversary of such Change of Control. For this
purpose, "Comparable Reporting Status" means reporting directly
to the board of directors of the Company or of any present or
future parent, successor or affiliate of the Company (a
"Successor Company") that is (1) a public holding company for (A)
the
8
<PAGE> 9
Company or (B) the principal operating Company affiliated
with the Company; and (2) any other company or companies
presently or in the future affiliated with the Company (by direct
or indirect ownership by the Company or a parent company of the
Company of 100% of the voting power of equity securities) to
which individually or in the aggregate 35% or more of the
tangible assets (at net book value) have directly or indirectly
been transferred from the principal operating company (currently
Specialty Equipment Companies, Inc.) (excluding in any case any
liquidating entity);
(iv) any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement; or
(v) any reassignment of Executive, without his written
consent, to a work location located more than 50 miles from his
work location at the Effective Date.
(d) "Voluntary Termination" means a voluntary termination by the
Executive of his employment with the Company other than for Good
Reason.
(e) Notice of Termination. Any termination of the Executive's
employment by the Company (other than by reason of death) or by the
Executive shall be communicated by such party's giving written notice
of such termination ("Notice of Termination") to the other party in
accordance with Section 12(e) of this Agreement. In the case of a
termination by the Company for Cause or by the Executive for Good
Reason, the Notice of Termination shall (i) indicate the specific
termination provision in this Agreement relied upon, (ii) set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the
provision so indicated and (iii) if the Termination Date (as defined
below) is other than the date of receipt of such Notice of
Termination, specify the Termination Date. The failure by the
Executive to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not
waive any right of the Executive hereunder or preclude the Executive
from asserting such fact or circumstance in enforcing the Executive's
rights hereunder.
(f) Termination Date. "Termination Date" means the date of receipt of
the Notice of Termination or any later date specified therein (which
date shall be not more than fifteen days after the giving of such
notice), as the case may be; provided, however, that (i) if the
Executive's employment is terminated by the Company for Cause or by
the Executive as a Voluntary Termination, the Termination Date shall
be the date of receipt of such Notice of Termination and (ii) if the
Executive's employment is terminated by reason of death or Permanent
Disability, the Termination Date shall be the date of death of the
9
<PAGE> 10
Executive or the Disability Effective Date (as defined in Section
3(a)), as the case may be.
4. Obligations of the Company Upon Termination.
(a) Termination of Employment for Good Reason or Other Than for Cause.
If, during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause, or if the Executive shall
terminate employment under this Agreement for Good Reason or if
Executive's employment terminates by reason of his death or Permanent
Disability, the Company shall provide Executive (directly or as
provided in Section 12(a)), in lieu of any bonus under the Company's
cash incentive plan for the year in which the Termination Date occurs,
but in addition to all vested rights arising from his employment, with
the following benefits:
(i) A cash payment on or before 30 days after the Termination
Date in an aggregate amount equal to (A) the greater of (x) two
times the Guaranteed Base Salary at the date of termination, plus
four times the average of the bonuses earned by the Executive
under the Company's cash incentive plan in the immediately
preceding two fiscal years, or (y) $2.8 million, plus (B) any
deferred compensation (including without limitation Executive's
EVA bonus bank).
(ii) The Company shall continue to provide Executive with other
benefits as described in Section 2(b)(iii) of this Agreement (or
the equivalent thereof of cash) ("Continuation Benefits"), at the
Company's expense, for a period (the "Continuation Term") which
shall be (A) if the Termination Date occurs on or after a Change
in Control, twenty-four months, or (B) in all other cases, six
months. Benefits under this clause (ii) are in addition to, and
not in lieu of, COBRA benefits and any other benefits required by
law.
(iii) Any options granted to the Executive prior to October 22,
1999 which are not yet exercisable by the Executive on the
Termination Date shall become exercisable and these options and
any other not yet exercised options held by the Executive under
the Plan will continue to be exercisable as provided by their
terms and in accordance with the Plan. The Committee which
administers the Plan has authorized the aforedescribed
acceleration of option exercisability and waiver of restrictions
and conditions applicable to the options held by the Executive in
accordance with the Plan. For those options issued after October
22, 1999 under the Amended and Restated Executive Long Term
Incentive Plan, the Committee may in its discretion determine
within 90 days of the
10
<PAGE> 11
Termination Date, that the options will instead be vested and
exercisable in accordance with the Alternative Vesting Schedule
(vesting in five annual installments at a rate of 20% each year
on the anniversary of the Grant Date of the Award).
(iv) The Executive's rights to indemnification under Section 13
shall survive the termination of this Agreement.
(b) Termination of Employment for Cause or Voluntary Termination. If,
during the Employment Period, the Executive's employment shall be
terminated by the Company for Cause or by the Executive as a Voluntary
Termination, the Company shall continue to provide Continuation
Benefits at Company's expense for a period of 90 days after the
Termination Date (or the equivalent thereof in cash), plus COBRA and
any other benefits to the extent required by law, and this Agreement
shall then terminate without further obligation by the Company to the
Executive, other than (i) the obligation to pay to the Executive, in a
lump sum in cash within 30 days of the Termination Date, that portion
of the Guaranteed Base Salary which is payable to the Executive for
services performed as of the Termination Date to the extent
theretofore unpaid, (ii) the Executive's rights to indemnification
under Section 13, which shall survive termination of this Agreement or
(iii) the Executive's benefits as explicitly provided upon termination
under the terms of any plan, policy or program of the Company or as
otherwise required by applicable law.
5. Change of Control.
(a) Definition. For purposes of this Agreement, a "Change of Control"
shall mean, and be deemed to have occurred if and when after the
Effective Date:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934
(the "1934 Act")) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the 1934 Act), except that
a person shall be deemed to have beneficial ownership of all
shares voting capital stock that such person has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than
50% of the total voting power of all classes of voting capital
stock of the Company; or
(ii) during a period of two consecutive years, individuals who
at the beginning of such period constituted the Board (together
with any new members of the Board whose election to the Board, or
whose
11
<PAGE> 12
nomination for election by the holders of capital stock of the
Company, was approved by a vote of 66-2/3% of the members of the
Board then still in office who were either members of the Board
at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to
constitute a majority of such Board then in office; or
(iii) the Company consolidates with or merges with or into any
person or conveys, transfers or leases all or substantially all
of its assets to any person, or any corporation or partnership
consolidates with or merges into or with the Company, in any such
event pursuant to a transaction in which the outstanding voting
capital stock of the Company is changed into or exchanged for
cash, securities or other property, other than any such
transaction where the persons who were the beneficial owners of
the voting capital stock of the Company immediately before the
transaction directly or indirectly own, immediately after the
transaction, in substantially the same proportions, at least 50%
of the then-outstanding voting capital stock of the surviving,
resulting or acquiring corporation or partnership, or
(iv) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution.
(b) Effect of Change of Control. Upon a Change of Control, in addition
to the effects stipulated in Sections 3(c)(iii) and 4(a)(iii), all
options granted to Executive under the Long-Term Incentive Plan (or
any successor plan) and held by Executive but not immediately
exercisable immediately before the Change of Control shall immediately
become fully vested and exercisable. Those options and any other not
yet exercised options held by the Executive under the Long-Term
Incentive Plan will continue to be exercisable as provided by their
terms and in accordance with the Long-Term Incentive Plan. The
Committee which administers the Long-Term Incentive Plan has
authorized this acceleration of option exercisability and waiver of
restrictions and conditions applicable to the options held by the
Executive in accordance with the Long-Term Incentive Plan.
(c) Additional Payments. In the event the Executive becomes subject,
with respect to compensation received or contemplated hereunder, to
the excise tax imposed under Internal Revenue Code Section 4999, the
Company, regardless of whether the Executive remains employed
hereunder at the time the Executive becomes so subject, shall
reimburse the Executive for the amount of the excise taxes due under
such Section and for the amount of any taxes and excise taxes imposed
on such reimbursement, provided, however, that the total amount of
such reimbursements shall not exceed five times the amount of such
excise taxes.
12
<PAGE> 13
6. Confidential Information. The Executive shall hold in a fiduciary capacity
for the benefit of the Company all Confidential Information. "Confidential
Information" means all secret or confidential information, or other proprietary
information, including knowledge or data relating to the Company and its
businesses or acquired in connection with the Company's businesses which shall
have been obtained by the Executive during the Executive's employment by the
Company and which shall not be or become public knowledge (other than by acts by
the Executive or representatives of the Executive in violation of this
Agreement), other than disclosure ordered by a court or governmental agency.
After termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company, communicate or
divulge any Confidential Information to anyone other than the Company and those
designated by it except in connection with enforcing the Executive's rights
hereunder or if ordered by a court or governmental agency.
7. Non-competition. The Executive agrees that while he is employed hereunder,
the Executive shall not 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 in substantial competition with the Company in the
continental United States, unless he obtains the express written approval of the
Board in its sole discretion after full disclosure of the nature of the intended
arrangement.
8. Remedies. If, at any time, the Executive violates any of the covenants or
agreements set forth in paragraphs 6 or 7, the Company shall have the right to
terminate all of its obligations to make further payments under this Agreement,
including, but not limited to, the obligations set forth in Section 4(a) of the
Agreement, except that (i) the Company may not defer, withhold or terminate any
obligation to make any payment hereunder on the basis of a violation of Section
6 of this Agreement unless and until the fact of such violation shall have been
established in an arbitration proceeding pursuant to Section 9; and (ii) the
Company may not defer, withhold, terminate or limit under this Section 8 any
rights of the Executive under Section 13.
9. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and judgment upon the award rendered by the Arbitrator(s) may be entered in any
court having jurisdiction thereof. The Company shall pay the costs of such
arbitration which are incurred by the Executive and by the Company, regardless
of the outcome of such arbitration. Such costs shall include all legal fees,
including retainer fees, and other fees and expenses which the Executive may
reasonably incur as a result of the arbitration. All such reasonable costs and
fees incurred by Executive shall be paid by the Company as incurred without
regard to whether the arbitration has been completed.
10. Full Settlement. The Company's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any circumstances, including, without limitation, set-off,
counterclaim, recoupment, defense or other
13
<PAGE> 14
claim, right or action which the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement, nor shall the amount of
any payment hereunder be reduced by any compensation earned by the Executive as
a result of employment by another employer.
11. Successors.
(a) Of Executive. This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by the Executive's legal representatives.
(b) Of Company. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) Assumption. The Company will negotiate in good faith to require
any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had
taken place. If this Agreement is not assumed, Executive will be
deemed to have been terminated by Company for reasons other than for
Cause. If such Agreement is assumed the term "Company" as used in this
Agreement, shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise,
and the Company and such successor shall be jointly and severally
liable hereunder.
12. Miscellaneous.
(a) Payments after Death. If the Executive dies prior to receiving
amounts to which the Executive is entitled hereunder, such amounts
shall be paid in a lump sum payment as soon as practicable after the
date of death to the beneficiary designated in writing by the
Executive and if no such beneficiary is designated, to the Executive's
estate, provided that if such a lump sum payment is impracticable
because certain amounts to which the Executive is entitled are not yet
determinable, each amount to which the Executive is entitled hereunder
shall be paid as soon as practicable after the date of death.
(b) Nonalienation. Benefits payable under this Agreement shall not be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or
levy of any kind, either voluntary or involuntary, prior
14
<PAGE> 15
to being payable to the Executive, and any such attempt to dispose of
any right to benefits not yet payable hereunder shall be void.
(c) Illegality. If all or any part of this Agreement is declared by
any court or governmental authority to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate any portion
of this Agreement not declared to be unlawful or invalid. Any
paragraph or part of a paragraph so declared to be unlawful or invalid
shall, if possible, be construed in a manner which will give effect to
the terms of such paragraph or part of a paragraph to the fullest
extent possible while remaining lawful and valid.
(d) Amendment. This Agreement shall not be altered, amended or
modified except by written instrument executed by the Company and
Executive. A party's waiver of any term, covenant, agreement or
condition contained in this Agreement shall not be deemed a waiver of
any other term, covenant, agreement or condition, and a party's waiver
of any default in any such term, covenant, agreement or condition
shall not be deemed a waiver of any later default thereof or of any
other term, covenant, agreement or condition.
(e) Notices. All notices and other communications hereunder shall be
in writing and delivered by hand or by first class registered or
certified mail, return receipt requested, postage prepaid, addressed
as follows:
If to the Executive: If to the Company:
------------------- ------------------
Jeffrey P. Rhodenbaugh Specialty Equipment Companies, Inc.
4115 Royal Troon Court 1245 Corporate Boulevard, Suite 401
St. Charles, Illinois 60174 Aurora, Illinois 60504
Attn: Mr. Donald K. McKay
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(f) No Mitigation. The Executive shall not have any duty to mitigate
the amounts payable by the Company under this Agreement by seeking new
employment or taking any other action following termination of
employment. All amounts payable under this Agreement shall be paid
without reduction regardless of any amounts of salary, compensation or
other amounts which may be paid or payable to the Executive as the
result of the Executive's employment by another employer.
Notwithstanding the foregoing, welfare plan coverage described in
Section 2(b)(iii)(B) that the Company is obligated to continue during
the Continuation Term as Continuation Benefits pursuant to Section
4(a) shall be secondary and the Company shall only be obligated to the
extent that
15
<PAGE> 16
comparable benefits are not provided or offered to Executive and/or
his family by reason of such new employment.
(g) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument
originals.
(h) Governing Law. This Agreement shall be interpreted and construed
in accordance with the laws of the State of Illinois, without regard
to its choice of law principles. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect.
(i) Withholding. The Company may withhold from any amounts payable
under this Agreement such federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulations.
(j) Entire Agreement. This Agreement contains the entire understanding
of the Company and the Executive with respect to its subject matter.
13. Indemnification. The Company shall indemnify and hold harmless the Executive
to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law as now enacted or hereafter amended, with respect to acts,
omissions, and events occurring prior to the Effective Date or during the
Employment Period. Such indemnification shall survive the termination of this
Agreement, shall inure to the benefit of Executive's heirs, executors, and
administrators, and shall cover all expenses (including advances of expenses)
incurred by Executive (including, but not limited to, attorney's fees) and all
liabilities and losses (including, but not limited to, judgments, fines, ERISA
or other excise taxes or penalties and amounts paid or to be paid in settlement)
incurred by Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
EXECUTIVE: SPECIALTY EQUIPMENT COMPANIES, INC.
By:
-------------------------------
Jeffrey P. Rhodenbaugh Its:
ATTEST:
16
