Exhibit 10(t)
Amendment No. 1 to Employment Agreement
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Reference is made to the Employment Agreement dated as of October 14, 1997
(the "Agreement"), between United Rentals, Inc. (subsequently renamed United
Rentals (North America), Inc.), a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxx ("Employee"). The Company and Employee agree that the
Agreement shall be amended and supplemented as set forth below. Except as
specifically set forth below, the Agreement remains unmodified and in full force
and effect:
1. Modification to Paragraph 2
1.1. The following new subparagraph shall be added following Paragraph 2(d):
(e) The Company and Xxxxxxx X. Xxxxxx ("Xxxxxx") are parties to
an Employment Agreement dated September 19, 1997 (the "Xxxxxx
Agreement"). Paragraph 6(a)(iii)(D) of the Xxxxxx Agreement provides
that Xxxxxx may terminate the Xxxxxx Agreement for "Good Reason" (as
defined in the Xxxxxx Agreement). If (1) Xxxxxx terminates the
Xxxxxx Agreement for Good Reason (as defined in the Xxxxxx
Agreement), (2) the circumstances constituting such "Good Reason"
are described in clause (i) of the definition of such term in the
Xxxxxx Agreement, and (3) concurrently therewith or during the 90-
day period that commences on the date of such termination, Employee
resigns as an employee of the Company or his employment with the
Company otherwise terminates for any reason, the Company shall be
obligated to pay to Employee a severance payment equal to 8.67 times
the sum of (x) the Employee's annual base salary in effect at the
time of termination plus (y) the highest annual cash bonus (if any)
paid by the Company to Employee during the three-year period
preceding the date of termination. Such severance payment shall be
payable in a lump sum payment within fifteen (15) days of the
termination of Employee's employment.
2. Addition of New Paragraph 12 Relating to Taxes
2.1. The following new Paragraph 12 is added after Paragraph 11.
12. Taxes
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(a) The payment of the base salary and any bonus or other
incentive compensation to Employee hereunder shall be subject to all
federal, state and local withholding taxes, social security deductions
and any other required payroll deductions.
(b) If all or any portion of the payments and benefits which
Employee is entitled to receive pursuant to the terms of this
Agreement or any other plan, arrangement or agreement in respect of
the Company or its affiliates (the "Payments") constitutes "excess
parachute payments" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), that are subject to the
excise tax (the "Excise Tax") imposed by Section 4999 of
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the Code (or similar tax and/or assessment), the Company (or its
successors or assigns) shall pay to Employee an additional amount
("Gross-Up Payment") such that the net amount retained by Employee,
after deduction of (i) any Excise Tax on Payments, (ii) any federal,
state and local income tax and Excise Tax upon the payment provided
for by this paragraph 12(b), and (iii) any interest and penalties
imposed in respect of the Excise Tax shall be equal to the full amount
of the Payments. For purposes of determining the amount of the Gross-
Up Payment, Employee shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is to be made, and state and local
income taxes at the highest marginal rates of taxation in the state
and locality of Employee's residence on the date the Gross-Up Payment
is to be made, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes.
(c) The Gross-Up Payment for any Payment made shall be paid to
Employee within ten (10) days after the Imposition of Excise Tax,
unless the Company undertakes to indemnify him as provided in
paragraph 12(d). The "Imposition of Excise Tax" shall mean the
earliest of: (i) the issuance by the Internal Revenue Service of a
notice stating in effect that an Excise Tax is due with respect to the
Payment; (ii) Employee's delivery to the Company of an opinion of tax
counsel selected by Employee that all or a portion of the Payment is
subject to the Excise Tax and the amount of the Excise Tax on the
Payment; or (iii) the Company's delivery to Employee of an opinion of
tax counsel selected by the Company and acceptable to Employee that
all or a portion of the Payment is subject to the Excise Tax and the
amount of the Excise Tax on the Payment.
(d) In lieu of paying the Gross-Up Payment for any Payment, the
Company may elect to undertake, at its sole expense, the defense and
settlement of any assessment by the Internal Revenue Service of the
Excise Tax on any Payment. If the Company so elects, the Company
shall protect, defend, indemnify and hold Employee forever harmless
from and against the Excise Tax on such Payment and payments pursuant
to this paragraph 12(d) and any federal, state or local income tax
(determined pursuant to the last sentence of paragraph 12(b)) upon
payments pursuant to this paragraph 12(d) and any and all liabilities,
demands, claims, actions, causes of action, assessments, losses,
costs, damages or expenses, including attorneys' and accountants' fees
in connection with any thereof, and any interest and penalties
sustained by Employee as a result of or arising out of or by virtue of
the Company's undertaking.
(e) If the Excise Tax is determined to be less than the amount
taken into account in determining the Gross-Up Payment paid pursuant
to paragraph 12(c), Employee shall repay to the Company, within ten
(10) days after the time that the amount of such reduction in Excise
Tax is determined, the portion of the Gross-Up Payment attributable to
such reduction plus interest on the amount of such repayment at the
rate provided in section 1274(b)(2)(B) of the Code for debt
instruments with a maturity after issuance equal to the period
beginning on the date the Gross-Up Payment was made and ending on the
date of repayment
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required by this sentence. If the Excise Tax is determined to exceed
the amount taken into account in determining the Gross-Up Payment paid
pursuant to paragraph 12(c), the Company within ten (10) days after
the time that the amount of such excess Excise Tax is determined shall
make an additional payment to Employee of an amount equal to such
excess plus an amount equal to any interest and penalties payable to
the Internal Revenue Service with respect to such excess and any
Excise Tax on payment pursuant to this sentence and any federal, state
and local income tax (determined pursuant to the last sentence of
paragraph 12(b)) upon payments made pursuant to this sentence.
In Witness Whereof, the parties have executed and delivered this Amendment
No. 1 to Employment Agreement as of December 24, 1999
UNITED RENTAL (NORTH AMERICA), INC.
By
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Xxxxxxx X. Xxxxx
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