Exhibit 10.1
SENIOR RESTRICTED STOCK AGREEMENT- SERIES "Senior I"
Awardee: Xxxxxxx Xxxxxx
Xxxxx Date: June 5, 2001
Award Shares: 800,000 shares of common stock
This SENIOR RESTRICTED STOCK AGREEMENT (the "Agreement") is made as of
the Grant Date by and between UNITED RENTALS, INC., a Delaware corporation
having an office at Five Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the
"Company"), and AWARDEE.
In consideration of the mutual promises and covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Grant of Shares. The Company hereby grants the Award Shares to
Awardee under the Company's 2001 Senior Stock Plan (the "Plan"),
subject to the terms and conditions of this Agreement and the Plan.
2. Vesting. The Award Shares shall vest on the earliest to occur of
the following events:
(a) The 10th anniversary of the Grant Date if the Awardee is then
employed by the Company;
(b) The date of Awardee's death, retirement at or after age 60 or
permanent disability while employed by the Company. Awardee shall be
deemed to be permanently disabled if for a period of six consecutive
months Awardee is unable to perform Awardee's duties for the Company
because of illness or physical or mental disability or other
incapacity.
(c) The date of the occurrence of a change of control of the Company
while Awardee is employed by the Company. A "change of control"
shall be deemed to have occurred if:
(i) any "person" is or becomes a "beneficial owner" (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934 (the
"Act")) directly or indirectly, of securities of United
Rentals, Inc. representing 50% or more of the total voting
power represented by then outstanding voting securities of
United Rentals, Inc., or has the power (whether as a result
of stock ownership, revocable or irrevocable proxies,
contract or otherwise) or ability to elect or cause the
election of directors consisting at the time of such
election of a majority of the Board of Directors. The term
"persons" is defined in Section 13(d) of the Act, except
that the term "person" shall not include (1) any person or
an Affiliate of such person who as of the date of this
Agreement owns 10% or more of the total voting power
represented by the outstanding voting securities of the
Company; and (2) a trustee or other fiduciary holding
securities under any employee benefit plan of the Company or
a corporation which is owned directly or indirectly by the
stockholders of the Company in substantially the same
percentage as their ownership in the Company; or
(ii) the stockholders of United Rentals, Inc. approve, or United
Rentals, Inc. consummates, a transaction or series of
transactions that cause (1) any class of equity securities
which is subject to Section 12(g) or 15(d) of the Securities
Exchange Act of 1934 to be held of record by less than 300
persons, or (2) any class of equity securities of United
Rentals, Inc. which is either listed on a national
securities exchange or authorized to be quoted in an
inter-dealer quotation system of a registered national
securities association to be neither listed on any national
securities exchange nor authorized to be quoted on an
inter-dealer quotation system of any registered national
securities association; or
(iii) the stockholders of United Rentals, Inc. approve a merger of
United Rentals, Inc., or a plan of complete liquidation of
United Rentals, Inc., or an agreement for the sale or
disposition by United Rentals, Inc. of all or substantially
all of its assets, or any other business combination of
United Rentals, Inc. with any other corporation, other than
any such merger or business combination which would result
in the voting securities of United Rentals, Inc. outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) at least 50% of the
total voting power represented by the voting securities of
United Rentals, Inc. or such surviving entity outstanding
immediately after such merger or business combination. An
"Affiliate" of a person is a person that controls, is
controlled by, or is under common control with such person.
(d) As to any Awardee whose current title is Chairman or Vice Chairman,
the date on which the Company terminates Awardee's employment other
than for Cause. The term "Cause" means (i) Awardee shall have
breached any non-compete provision set forth in his or her
employment agreement, the Company shall have advised Awardee of such
breach and, within 60 days after Awardee has received such notice,
Awardee shall not have taken steps to cure such breach; or (ii) the
conviction of Awardee for any felony from which all appeals have
been exhausted.
(e) The date on which the Awardee resigns within 60 days after (1), as
to any Awardee whose current title is Chairman or Vice Chairman, if
the Company has reduced his duties, authority, title or
compensation, or (2) if Awardee is currently a director of the
Company, the Company fails to nominate him to continue as a
director, or (3) the Company has directed that Awardee relocate his
or her personal residence or corporate office or has substantially
increased Awardee's travel requirements, or (4) if Awardee is not
Xxxxxxx Xxxxxx, there has been a good reason resignation by Xxxxxxx
Xxxxxx. A resignation referred to in this Section (e) is referred to
in this Agreement as a "good reason resignation."
(f) The date, if any, on which the Administrator advises Awardee that
the Award has been accelerated, but only to the extent set forth in
such notice.
3. Forfeiture. Award Shares shall be forfeited if Awardee's employment is
terminated before the Award has vested, but only if such termination
does not itself vest the Award under the express provisions of Section 2.
4. Stock Certificates; Transferability.
(a) The Company shall promptly deliver to Employee a stock certificate
for the Award Shares. The certificate shall contain a legend (the
"Vesting Legend") as follows:
The securities represented by this certificate are subject to
a restricted stock agreement between the Company and the
registered owner of this certificate (or his predecessor in
interest). Copies of said agreement may be obtained upon
written request to the secretary of the Company by the
registered owner hereof. These securities may be cancelled and
retired by the Company in the circumstances set forth in the
Agreement, in which event this Certificate shall be null and
void.
(b) The Company will cause the Vesting Legend to be removed upon request
by Awardee given at any time after the Award Shares have vested, but
only if the Awardee has satisfied the withholding tax obligations
set forth elsewhere in this Agreement.
(c) Should Awardee forfeit any Award Shares, Awardee shall promptly
return the certificate therefor to the Company for cancellation.
Without limiting the Company's other rights and remedies for any
failure to timely make such return, Awardee shall indemnify the
Company and hold the Company harmless from all loss, damage or claim
which the Company may incur as a result of such failure. Whether or
not such certificate is returned as aforesaid, such certificate
shall upon such forfeiture no longer represent shares of common
stock and will be cancelled on the records of the Company.
5. Transferability.
(a) Awardee represents that Awardee is acquiring the Award Shares for
Awardee's own account and not on behalf of others.
(b) To the extent that the Award Shares have not vested, they are not
transferable by the Awardee, whether by sale, assignment, exchange,
pledge, or hypothecation, or by operation of law or otherwise except
(a) pursuant to a qualified domestic relations order as defined for
purposes of the Employee Retirement Income Security Act of 1974, as
amended, or (b) by gift: to a member of the "Family" (as defined
below) of the Awardee, to or for the benefit of one or more
organizations qualifying under Code sec. 501(c) (3) and 170(c) (2)
(a "Charitable Organization") or to a trust for the exclusive
benefit of the Awardee, one or more members of the Awardee's Family,
one or more Charitable Organizations, or any combination of the
foregoing, provided that any such transferee shall enter into a
written agreement to be bound by the terms of this Agreement. For
this purpose, "Family" shall mean the ancestors, spouse, siblings,
spouses of siblings, lineal descendants and spouses of lineal
descendants of the Awardee.
(c) Whether or not the Award Shares have vested, Federal and state
securities laws govern and restrict the right to offer, sell or
otherwise dispose of any Award Shares unless otherwise covered by a
Form S-8 or unless the offer, sale or other disposition thereof is
otherwise registered under the Securities Act of 1933, as amended,
(the "1933 Act") and state securities laws or, in the opinion of the
Company's counsel, such offer, sales or other disposition is exempt
from registration thereunder. The Company will within a reasonable
time after Awardee's request, file such Form S-8 or other
registration statement as shall be reasonably necessary for the
public sale of Award Shares that have vested. Awardee will in no
event offer, sell or otherwise dispose of any Award Shares in any
manner which would violate or cause the Company to violate the 1933
Act, the rules and regulations promulgated thereunder or any other
state or federal law. Stock certificates representing the Award
Shares shall bear a legend (the "1933 Act Legend") in substantially
the following form, in addition to the Vesting Legend, the Brokerage
Legend and any other legends that may be required under federal or
state securities laws:
The securities represented by this certificate have not been
registered pursuant to the Securities Act of 1933, as amended
(the "Act"), or any state securities law, and such securities
may not be sold, transferred or otherwise disposed of unless
the same are registered and qualified in accordance with the
Act and any applicable state securities laws, or in the
opinion of counsel satisfactory to the Company such
registration and qualification are not required.
(d) The Company shall not be required to transfer on its books any of
the Award Shares that shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement, or
to treat any transferee to whom such shares have been so sold or
transferred as a stockholder of the Company.
(e) Unless a change of control has occurred, Awardee will sell Award
Shares only through a brokerage firm which is from time to time
designated by the Company. The certificates that represent the Award
Shares will bear the following legend (the "Brokerage Legend"):
Holder may sell these shares only through a brokerage firm which is
from time to time designated by the Company.
6. Rights as Stockholder. Except as otherwise provided in Sections 4 and 5,
the Awardee shall until forfeiture be entitled to all rights of a
stockholder of the Company, including the right to vote the Award Shares
and to receive dividends and/or other distributions declared on such
shares.
7. Conformity with Plan. This Agreement is intended to conform in all
respects with, and is subject to all applicable provisions of, the Plan,
which is incorporated herein by reference. Any inconsistencies between
this Agreement and the Plan shall be resolved in accordance with the terms
of the Plan. By executing and returning the enclosed copy of this
Agreement, Awardee acknowledges its receipt of the Plan and its agreement
to be bound by all the terms of the Plan. All definitions stated in the
Plan apply to this letter.
8. Not a Contract for Employment. No rights to continued employment with the
Company shall be construed as arising under the terms of this Agreement.
9. Withholding Taxes. Awardee shall pay to the Company, or make provision
satisfactory to the Administrator for payment of, any taxes required to be
withheld in respect of the Award Shares no later than the date of the
event creating the tax liability. The Company may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind
otherwise due to the Awardee, including any Award Shares held by the
Company. In the event that payment to the Company of such tax obligations
is made in shares of common stock of the Company, such shares shall be
valued at their fair market value on the applicable date for such
purposes.
10. Awardee Advised To Obtain Personal Counsel and Tax Representation.
IMPORTANT: The Company and its employees do not provide any guidance or
advice to individuals who may be granted an Award under the Plan regarding
the federal, state or local income tax consequences or employment tax
consequences of participating in the Plan. Each person who may be entitled
to any benefit under the Plan is responsible for determining their own
personal tax consequences of participating in the Plan. Accordingly, you
may wish to retain the services of a professional tax advisor in
connection with any Awards under the Plan.
11. Gross-up. Under separate agreement with the Company, Awardee is entitled
to certain gross-up amounts in respect of payments and benefits which
constitute "excess parachute payments" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"). The
Company confirms that such gross-up payments also apply to payments and
benefits in respect of the Award Shares.
12. Miscellaneous.
(a) This Agreement may not be changed or terminated except by written
agreement signed by the Company and Awardee. It shall be binding on
the parties and on their personal representatives and permitted
assigns.
(b) This Agreement sets forth all agreements of the parties. It
supersedes and cancels all prior agreements with respect to the
subject matter hereof. It shall be enforceable by decrees of
specific performance (without posting bond or other security) as
well as by other available remedies.
(c) This Agreement shall be governed by, and construed in accordance
with, the laws of Delaware. The federal and state courts sitting in
Connecticut shall have exclusive jurisdiction over all matters
relating to this Agreement. Trial by jury is expressly waived.
(d) All notices, requests, service of process, consents, and other
communications under this Agreement shall be in writing and shall be
deemed to have been delivered (i) on the date personally delivered
or (ii) one day after properly sent by Federal Express, or (iii) on
the day transmitted by facsimile so long as a confirmation copy is
simultaneously forwarded by Federal Express, in each case addressed
to Awardee at the last address he or she has filed in writing with
the Company, or in the case of the Company, at its principal
offices. A copy of each notice to the Company shall be addressed to
the Company's CEO and the Company's Corporate Counsel, c/o the
Company. Either party hereto may designate a different address by
providing written notice of such new address to the other party
hereto as provided above.
(e) Each provision of this Agreement shall be treated as a separate and
independent clause, and the invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement. Moreover,
if one or more of the provisions contained in this Agreement shall
for any reason by held to be excessively broad in scope, activity,
geography, time-period, subject, or otherwise so as to be
unenforceable at law, such provision or provisions shall be
construed by the appropriate judicial body by limiting or reducing
it or them, so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then exist.
Dated: As of June 5, 2001
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
UNITED RENTALS, INC.
By:
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Name:
Title:
AWARDEE:
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