January 1, 2018 Mr. Ronald F. Valenta La Cañada, CA 91011 Dear Ron:
EXHIBIT
10.1
January
1, 2018
Xx.
Xxxxxx X. Xxxxxxx
0000
Xxxxxx Xxxxx
Xx
Xxxxxx, XX 00000
Dear
Xxx:
General
Finance Corporation (the “Company”) is pleased to
confirm the terms of your employment agreement (this
“Agreement”) under which
you will serve as the Executive Chairman of the Board of Directors
of the Company (the “Board”) commencing on
January 1, 2018. The Company is listed on The NASDAQ Stock Market.
We believe the position of Executive Chairman will be rewarding and
focused upon, but not limited to, the traditional areas of
mentoring our new Chief Executive Officer (“CEO”), assisting the CEO
in completing his strategic plan and advising on capital allocation
and procurement.
Your
employment will be on the following terms and
conditions:
1. Title
and Responsibilities
1.1 You will serve as
Executive Chairman of the Company effective January 1, 2018.
Your
duties and responsibilities shall be those normally and customarily
vested in an Executive Chairman, as incident to the duties set
forth herein and as set forth in the Bylaws of the Company. Some of
your duties are listed on Exhibit A.
1.2 You agree to obey
all rules, regulations and special instructions of the Company and
all other rules, regulations, guides, handbooks, procedures,
policies and special instructions applicable to the Company’s
business in connection with your duties hereunder and you shall
endeavor to improve your ability and knowledge of the
Company’s business in an effort to increase the value of your
services for the mutual benefit of the Company and
you.
1.3 You will perform
your responsibilities principally at the executive offices of the
Company.
2. Base Salary. Your base salary
(“Base
Salary”) will continue at $240,000 per year, payable
in bimonthly installments less applicable tax withholding; the Base
Salary will be reviewed annually.
3. Bonus.
No later than the 15th day of the second
month of equal quarter, you will be eligible for a quarterly bonus
of $46,250 and an annual performance bonus for fiscal year 2018 and
every year thereafter as determined by the Company’s Board
and Compensation Committee.
4. Equity Incentives. The Company
has adopted the Amended and Restated 2014 Stock Incentive Plan
(this plan, as it may be amended, supplemented or superseded by any
other stock incentive plans, the “Plan"). The Plan authorizes the
grant of stock options, share appreciation rights, restricted
shares, restricted share units, unrestricted shares, deferred share
units and performance and cash-settled awards (each of the
foregoing, an “Award” and collectively,
the “Awards”). The Committee
shall have discretion to determine the value of any Awards other
than restricted shares granted under this Section 4. Under this
Agreement you will receive Awards granted to Board
members.
5. Reimbursement of Expenses. The
Company shall pay you a monthly allowance of $2,500 per month. You
will be reimbursed for reasonable and necessary work-related
expenses, including but not limited to, phone charges, travel
expenses, desk top computer, and other reasonable and necessary
work-related costs will be borne by the Company.
6. Employee Benefits. You will be
entitled to participate on the same basis in all offered benefits
or programs as any other employee of the Company for medical
insurance and retirement programs. Medical and dental benefits will
be provided to you and your immediate family at no cost to
you.
7. Term and Termination of
Employment. Your new duties and responsibilities will
commence on January 1, 2018 (or such other date as may be agreed
between you and the Company) and will terminate on the earliest to
occur of the following:
7.1 upon your
death;
7.2 upon the delivery
to you of written notice of termination by the Company if you shall
suffer a physical or mental disability which renders you unable to
perform your duties and obligations under this Agreement for either
60 consecutive days or 120 days in any 12-month
period;
7.3 upon 30 days’
written notice from you to the Company;
7.4 upon written notice
from you to the Company for one or more of the following effected
without your written consent (“Good Reason”), provided
that such notice is received within 90 days of the event or
circumstance constituting Good Reason: (a) a reduction in your Base
Salary; (b) you are assigned duties and responsibilities that are
materially beneath those of an executive chairman and provided that
you notify the Company within five business days of the assignment
of such duties that you believe are the basis of termination of
your employment for Good Reason and the Company does not revoke
such duties and responsibilities;
7.5 upon delivery to
you of written notice of termination by the Company (i) For
Cause, or (ii) without cause following receipt of written
notice of termination from you pursuant to Section 7.3 of this
Agreement; or
7.6 upon delivery to
you of written notice of termination by the Company without
cause.
8.1 Upon termination of
your employment for any reason, you shall not be entitled to any
severance, except that if you terminate your employment for Good
Reason or there is a change of control of the Company (change of
control is defined as the majority of the Company’s
outstanding shares are purchased by another investor(s)), or the
Company terminates your employment without cause, you shall be
entitled to a lump sum severance payment equal to 12 months’
Base Salary as in effect on the date of termination (but prior to
any reduction in salary that entitled you to terminate your
employment for Good Reason) provided that you execute and deliver
to the Company, and do not revoke, a written release (the
“Release”), in form and
substance satisfactory to the Company, of any and all claims
against the Company and its subsidiaries, directors, officers and
affiliates with respect to all matters arising out of your
employment by the Company. The Company shall be entitled to defer
payment of any amounts under this Section 8 until the expiration of
any period during which you shall have the right to revoke the
Release.
8.2 Notwithstanding the
timing of payments set forth in this Agreement, if the Company
determines that you are a “specified employee” within
the meaning of Section 409A of the Internal Revenue Code of 1986,
as amended, and that, as a result of such status, any portion of
the payment under this Agreement would be subject to additional
taxation, the Company will delay paying any portion of such payment
until the earliest permissible date on which payments may commence
without triggering such additional taxation (with such delay not to
exceed six months), with the first such payment to include the
amounts that would have been paid earlier but for the above
delay.
9. Certain Definitions. For
purposes of this Agreement, the following capitalized terms have
the following meanings:
9.1 “For Cause” shall mean, in
the context of a basis for termination of your employment with the
Company, that:
9.1.1 you
breach any obligation, duty or agreement under this Agreement,
which breach is not cured or corrected within 15 days of
written notice thereof from the Company; or
9.1.2 you
commit any act of personal dishonesty, fraud, breach of fiduciary
duty or trust; or
9.1.3 you
are convicted of, or plead guilty or nolo contendere with respect to, theft,
fraud, a crime involving moral turpitude, or a felony under federal
or applicable state law; or
9.1.4 you
commit any act of personal conduct that, in the reasonable opinion
of the Board, gives rise to a material risk of liability under
federal or applicable state law for discrimination or sexual or
other forms of harassment or other similar liabilities to
subordinate employees; or
9.1.5 you commit continued and
repeated substantive violations of specific written directions of
the Board, which directions are consistent with this Agreement and
your position as Executive Chairman, or continued and repeated
substantive failure to perform duties assigned by or pursuant to
this Agreement; provided that no discharge shall be deemed For
Cause under this subsection 9.1.5 unless you first receive written
notice from the Company advising you of the specific acts or
omissions alleged to constitute violations of written directions or
a material failure to perform your duties, and such violations or
material failure continue after you shall have had a reasonable
opportunity to correct the acts or omissions so complained of;
or
9.1.6 you
engage in conduct that is demonstrably and materially injurious to
the Company Group (as defined below), or that materially xxxxx the
reputation or financial position of the Company Group (as defined
below), unless the conduct in question was undertaken in good faith
on an informed basis with due care and with a rational business
purpose and based upon the honest belief that such conduct was in
the best interest of the Company Group (as defined below);
or
9.1.7 you
are found liable in any Securities and Exchange Commission
(“SEC”)
or other civil or criminal securities law action or entering any
cease and desist order with respect to such action (regardless of
whether or not you admit or deny liability) where the conduct that
is the subject of such action is demonstrably and materially
injurious to the Company Group (as defined below); or
9.1.8 you
(i) obstruct or impede, (ii) endeavor to influence, obstruct or
impede, or (iii) fail to materially cooperate with, any
investigation authorized by the Board or any governmental or
self-regulatory entity (an “Investigation”) (however,
your failure to waive attorney-client privilege relating to
communications with your own attorney in connection with an
Investigation shall not constitute “Cause”); or
9.1.9 you
made any material misrepresentations (or omissions) in connection
with your resume and other documents which may have been provided
by you, and oral statements regarding your employment history,
education and experience, in determining to enter into the
Agreement.
9.2 “Company Group” means the
Company and each corporation or entity controlled directly or
indirectly by the Company.
10. Employment “At
Will.” Nothing in this Agreement constitutes a promise
of continued employment or employment for a specified term. By
discussing the terms of employment with the Company outlined
herein, you agree and acknowledge that your employment relationship
with the Company would be at will.
11. Non-Solicitation. During the
period from the date your employment with the Company terminates
through the second anniversary of such date, you will not directly
or indirectly, either alone or by action in concert with others:
(a) induce or attempt to influence any employee of any member
of the Company Group to terminate his or her employment with any
member of the Company Group; (b) employ or offer employment to
any person who was employed by any member of the Company Group at
the time of termination of your employment with the Company; or
(c) induce or attempt to induce any customer, supplier,
licensee or other business relationship of any member of the
Company Group to cease or reduce its business with any member of
the Company Group, or in any way interfere with the relationship
between any such customer, supplier, licensee or business
relationship and any member of the Company Group; or
(d) solicit business from any of the Company’s
customers.
12. Confidentiality. You agree not
to disclose or use at any time (whether during or after your
employment with the Company) for your own benefit or purposes or
the benefit or purposes of any other person any non-public
information regarding the Company Group and its business,
operations, assets, financial condition and properties, including,
without limitation, trade secrets, business plans, policies,
pricing information and customer data, provided that the foregoing
covenant shall not restrict you from disclosing information to the
extent required by law. You agree that upon termination of your
employment with the Company for any reason, you will return to the
Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or
therefrom, in any way relating to the business of the Company Group
except that you may retain personal notes, notebooks, diaries,
rolodexes and addresses and phone numbers. You further agree that
you will not retain or use for your account at any time any trade
names, trademark or other proprietary business designation used or
owned in connection with the business of any member of the Company
Group.
13. Clawback
Provisions. You agree to repay
or forfeit, to the fullest extent permitted by law, any
bonus, incentive payment, equity award or other compensation has
been awarded or received if each of
the following three elements is satisfied:
13.1 the
payment, grant or vesting of such compensation was based upon the
achievement of financial results that were subsequently the subject
of a restatement of financial statements of the Company filed with
the SEC, or the amount of the award was based upon the achievement
of financial results which subsequently were determined to have
been overstated;
13.2 the
Board determines in its reasonable discretion, exercised in good
faith, that you engaged in fraud, intentional misconduct or an
intentional violation of law or the Company policy that caused or
contributed to the need for the restatement or caused or
contributed to the overstatement of the financial results;
and
13.3 the
Board determines in its reasonable discretion, exercised in good
faith, that it is in the best interests of the Company and its
stockholders for you to repay or forfeit all or any portion of
the bonus, incentive payment, equity award or other
compensation.
14. Withholding. The Company may
deduct from any compensation payable to you (including payments
made pursuant to Section 9 of this Agreement in connection with or
following termination of employment) amounts sufficient to cover
your share of applicable federal, state and/or local income tax
withholding, old-age and survivors’ and other Social Security
payments, state disability and other insurance premiums and
payments.
15. Entire Agreement. The foregoing
constitutes the entire agreement between you and the Company should
you elect to proceed. By ultimately accepting, you and the Company
are agreeing to be bound by the terms of this Agreement, and only
this Agreement. In other words, you are not accepting the offer
based on an understanding or promise, oral or written, which is not
contained in this Agreement, as this Agreement would represent the
entire agreement and understanding between you and the Company
regarding your employment with the Company should you proceed. Any
changes to the terms of this Agreement can only be in writing and
must be signed by you and either the President and Chief Executive
Officer or the Chairman of the Compensation Committee in order to
be valid and enforceable. Notwithstanding the foregoing, you
acknowledge that the Company has relied on your resume and other
documents which may have been provided by you, and oral statements
regarding your employment history, education and experience, in
determining to enter into the Agreement, and material
misrepresentations (or omissions) in connection with such documents
may constitute the basis of termination For Cause, as contemplated
by the definition of For Cause.
16. Governing Law. This Agreement
has been made and entered into in the State of California and shall
be construed in accordance with the laws of the State of
California.
17. Captions. The various captions
of this Agreement are for reference only and shall not be
considered or referred to in resolving questions of interpretation
of this Agreement.
18. Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall
be deemed to be an original, but all of which together shall
constitute one and the same instrument.
We
believe that you would be a worthy addition to the Company and are
capable of making an outstanding contribution and that we, in turn,
can offer you a challenging and rewarding career. We look forward
to working together with you.
Very
truly yours,
GENERAL
FINANCE CORPORATION
Accepted and agreed as of
the date set for above
|
By
/s/ Xxxxx X.
Xxxxxx
Xxxxx
X. Xxxxxx
Chair
of the Compensation Committee
|
/s/ Xxxxxx X.
Xxxxxxx
Xxxxxx
X. Xxxxxxx
|
EXHIBIT
A
Description of Duties and Responsibilities
-
All activities,
responsibilities and authority related to the position of Executive
Chairman of the Board of Directors;
-
Call meetings of
the entire Board of Directors, quarterly or as deemed
necessary;
-
Review the agenda
for the Board sessions;
-
Preside over the
Board sessions;
-
Work closely with
the Lead Independent Director;
-
Annually review
succession planning of key senior managers and their likely
successors with the directors;
-
The Executive
Chairman should ensure the CEO, or their designee, should
coordinate the information flow to the directors, periodically
discuss director satisfaction with board materials with individual
directors to other suggestions on materials. Such information shall
be distributed at least one week in advance of regular Board
meetings and twenty-four hours in advance of any special
meeting;
-
Review the
CEO’s strategic plan and provide suggestions and/or
recommendations; and
-
Assist and advise
on capital allocation and procurements.
