STOCK OPTION AGREEMENT
Exhibit 10.2
This Stock Option Agreement (“Agreement”), dated as of [OPTION DATE], between RSC Holdings Inc., a
Delaware corporation (the “Company”), and [PARTICIPANT NAME] (the “Participant”) who has indicated
acceptance of the terms of this Agreement in accordance with the procedures established by the
Company, is being entered into pursuant to the RSC Holdings Inc. Amended and Restated Stock
Incentive Plan (the “Plan”). The meaning of capitalized terms used in this Agreement may be found
in Section 6 or, if not present in Section 6, in the Plan.
The Company and the Participant hereby agree as follows:
Section 1. Grant of Options.
(a) Confirmation of Grant. The Company hereby evidences and confirms, effective as of
the Grant Date, its grant to the Participant of Options to purchase the number of Common Shares
specified on Schedule A hereto. The Options are intended to be non-qualified stock options
under the Code. This Agreement is entered into pursuant to, and the terms of the Options are
subject to, the terms of the Plan, which has been distributed to the Participant along with this
Agreement. Except as explicitly provided for herein, if there is any inconsistency between this
Agreement and the terms of the Plan, the terms of the Plan shall govern.
(b) Option Price. The Common Shares covered by the Option shall have the Option
Price(s) specified on Schedule A hereof as applicable with respect to such Common Shares.
Section 2. Vesting and Exercisability. Except as otherwise provided in
Section 5 of this Agreement, the Options shall become vested and exercisable as follows:
(the “Normal Vesting Date”), subject to the continuous service of
the Participant with the Company until the applicable vesting date; provided that if the
Participant’s service with the Company is terminated in a Special Termination (i.e., by reason of
the Participant’s death or Disability), any Options held by the Participant shall immediately vest
and become exercisable as of the effective date of such Special Termination. If the Participant’s
continuous service with the Company is terminated due to the Participant’s Normal Retirement prior
to the date that all of the Options become vested and exercisable, any Options held by the
Participant shall immediately vest and become exercisable on the effective date of such Normal
Retirement. If the Participant’s continuous service with the Company is terminated due to an
Involuntary Termination Without Cause prior to the Normal Vesting Date and prior to a Change in
Control, the unvested and outstanding Options shall become vested and exercisable to the extent
determine by the Board, in its sole discretion; provided, however, that the maximum number of
Options that become vested shall not exceed the number of such unvested Options multiplied by the
Vesting Proration Fraction on the date of such Involuntary Termination Without Cause. For the
purposes of this Section 2, “Vesting Proration Fraction” shall mean a fraction the
numerator of which is the number of days elapsed from the Grant Date through the
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date of the Involuntary Termination Without Cause and the denominator of which is the number
of days from the Grant Date to the Normal Vesting Date.
Section 3. Termination of Options.
(a) Normal Termination Date. Unless earlier terminated pursuant to Section
3(b) or Section 5, the Options shall terminate on the tenth anniversary of the Grant
Date (the “Normal Termination Date”), if not exercised prior to such date.
(b) Early Termination. If the Participant’s service with the Company terminates for
any reason, any Options held by the Participant that have not vested before the effective date of
such termination of service (determined without regard to any statutory or deemed or express
contractual notice period) or that do not become vested on such date in accordance with Section
2 shall terminate immediately upon such termination of service (determined without regard to
any statutory or deemed or express contractual notice period) and, if the Participant’s service is
terminated for Cause, all Options (whether or not then vested or exercisable) shall automatically
terminate immediately upon such termination. All vested Options held by the Participant following
the effective date of a termination of service (other than for Cause) shall remain exercisable
until the first to occur of: (i) in the event of a termination that is not a Special Termination or
a Normal Retirement, the 90th day following the effective date of the Participant’s termination of
service (determined without regard to any deemed or express statutory or contractual notice
period), or in the case of a Special Termination or a Normal Retirement, the date that is one year
after the effective date of the Participant’s termination of service (determined without regard to
any deemed or express statutory or contractual notice period), whichever is applicable; (ii) the
Normal Termination Date; or (iii) the cancellation of the Options pursuant to Section 5(a).
(The date the Options cease to be exercisable pursuant to the preceding sentence being referred to
herein as the “Expiration Date” of the Options.) Any unexercised Options shall
automatically terminate upon the Expiration Date.
Section 4. Manner of Exercise.
(a) General. Subject to such reasonable administrative regulations as the Board may
adopt from time to time, the Participant may exercise vested Options by delivering to the Company
(1) an option exercise form in the form specified by the Company, or through such procedures,
electronic or otherwise, that the Company may adopt for such exercise, in either case specifying
the proposed date on which the Participant desires to exercise a vested Option (the “Exercise
Date”) and the number of whole shares with respect to which the Options are being exercised
(the “Exercise Shares”) and (2) the aggregate Option Price for such Exercise Shares (the
“Exercise Price”).
(b) Payment of Exercise Price and Satisfaction of Tax Withholding Obligations. Unless
otherwise determined by the Board, on or before the Exercise Date the Participant shall deliver to
the Company full payment of the Exercise Price for the Exercise Shares plus any amounts required to
satisfy the Company’s withholding obligations related to the federal, state, local and foreign
taxes or other similar taxes, charges or fees which arise in
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connection with such exercise of the Option, which payment may be made in one or more of the
following forms:
(1) Cash, or cash equivalents satisfactory to the Company in United States dollars;
or
(2) Provided that at the time of exercise the Common Shares are publicly traded and
quoted regularly in The Wall Street Journal, pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance of
Common Shares, results in either the receipt of cash (or check) by the Company or the
receipt of irrevocable instructions to pay the aggregate exercise price to the Company
from the sales proceeds.
Additionally, at the time of exercise of the Option, the Board, in its sole discretion and subject
to such terms and conditions as it may establish, may permit the Participant to elect to tender a
whole number of Common Shares issuable upon exercise of the Option to satisfy, in whole or in part,
the Company’s withholding obligations related to the federal, state, local and foreign taxes or
other similar taxes, charges or fees which arise in connection with such exercise of the Option.
In no event shall any whole number of Common Shares so tendered have a Fair Market Value,
determined on the date of exercise of the Option, in excess of the minimum amount required to be
withheld by law (or such lower amount as may be necessary to avoid adverse accounting consequences
with respect to the Option). Any adverse consequences to the Participant arising in connection
with such share withholding procedure shall be the Participant’s sole responsibility.
(c) Issuance of Shares. After the Participant has satisfied all the conditions
necessary to exercise the Option with respect to the Exercise Shares, including satisfaction of the
applicable tax withholding obligations, the Company shall direct the issuance of the Exercise
Shares, less any Exercise Shares that are withheld to satisfy the Company’s tax withholding
obligation, if applicable, (the “Issuable Shares”) to be registered by the Company’s transfer
agent. As a condition to the issuance of the Issuable Shares, the Company may require the
Participant to furnish or execute such other documents as the Company shall reasonably deem
necessary (1) to evidence such exercise, or (2) to comply with or satisfy the requirements of the
Securities Act, applicable state or non-U.S. securities laws or any other law.
(d) Tolling of Exercise Period Due to Securities Law Prohibition on Exercise. In the
event that the exercise of this Option by the Participant is prohibited by the operation of the
Securities Act or other applicable state or non-U.S. securities laws or any other law, the periods
for exercising this Option set forth in Section 3(a) and 3(b) hereof (other than in
the case of a termination for Cause) shall be extended for the period of such prohibition plus
seven (7) days; provided, however, that in no event shall the period for exercising the Option be
extended beyond the Normal Termination Date.
(e) Tolling of Exercise Period Due to Trading Blackout. In the event that the Company
determines that the Participant is subject to its policy regarding xxxxxxx xxxxxxx of the Company’s
stock and the Expiration Date of the Option is scheduled to occur on a day that does not occur
during an “open window period” applicable to the Participant, as determined by the
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Company in accordance with such policy, then the periods for exercising this Option set forth
in Section 3(a) and 3(b) hereof (other than in the case of a termination for Cause)
shall be extended for the period of such prohibition plus seven (7) days; provided, however, that
in no event shall the period for exercising the Option be extended beyond the Normal Termination
Date.
Section 5. Change in Control.
(a) Vesting. Except as otherwise provided in this Section 5, if the
Participant’s continuous service with the Company is terminated due to a Special Termination (i.e.,
by reason of death or Disability) or an Involuntary Termination Without Cause prior to the Normal
Vesting Date and on or after the effective date of the Change in Control, all of the then unvested
and outstanding Options shall become vested and exercisable on the date of such Special Termination
or Involuntary Termination Without Cause.
(b) Limitation of Benefits. Section 9.3 of the Plan shall not apply to the Options.
Instead, the following provisions of this Section 5(b) shall apply to the Options. If, whether as
a result of accelerated vesting, the grant of an Alternative Award or otherwise, the Participant
would receive any payment, deemed payment or other benefit as a result of the operation of
Section 5(a) that, by itself or together with any other payment, deemed payment or other
benefit the Participant may receive under any other plan, program, policy or arrangement, would (1)
constitute a “parachute payment” under Section 280G of the Code, and (2) but for this sentence, be
subject to the excise tax imposed by Section 4999 of the Code, then, notwithstanding anything in
this Agreement to the contrary, the payments, deemed payments or other benefits such Participant
would otherwise receive under this Agreement and any other relevant agreement shall be equal to the
Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the
payment(s) or other benefits that would result in no portion of any such payment(s) or other
benefits being subject to such excise tax or (y) the largest portion, up to and including the
total, of the payment(s) or other benefits, whichever amount, after taking into account all
applicable federal, state and local employment taxes, income taxes and the excise tax (all computed
at the highest applicable marginal rate), results in the Participant’s receipt, on an after-tax
basis, of the greater economic benefit notwithstanding that all or some portion of the payment(s)
or other benefits may be subject to such excise tax. If a reduction in payments and/or benefits is
necessary, such reduction shall occur in the manner that results in the greatest economic benefit
to the Participant. If more than one such manner of reduction of payments and/or benefits pursuant
to the preceding sentence will result in the same economic benefit to the Participant, such
payments and/or benefits shall be reduced pro rata.
Section 6. Certain Definitions. As used in this Agreement, capitalized terms
that are not defined herein have the respective meaning given in the Plan, and the following
additional terms shall have the following meanings:
“Agreement” means this Participant Stock Option Agreement, as amended from time to
time in accordance with the terms hereof.
“Code” means the United States Internal Revenue Code of 1986, as amended, and any
successor thereto.
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“Company” means RSC Holdings Inc., provided that for purposes of determining the
status of Participant’s service with the “Company,” such term shall include the Company and its
Subsidiaries.
“Exercise Date” has the meaning given in Section 4(a).
“Exercise Price” has the meaning given in Section 4(a).
“Exercise Shares” has the meaning given in Section 4(a).
“Grant Date” means the date of this Agreement, which is the date on which the Options
are granted to the Participant.
“Involuntary Termination Without Cause” means a termination of the Participant’s
service with the Company other than (i) a Special Termination, (ii) a voluntary termination
effectuated by the Participant or (iii) an involuntary termination effectuated by the Company for
Cause.
“Normal Retirement” means a Participant’s voluntary termination of service after
attaining age 65; provided, however, that a termination of such Participant’s employment by the
Company at such time would not have constituted a termination for Cause.
“Normal Termination Date” has the meaning given in Section 3(a).
“Option” or “Options” means the right granted to the Participant hereunder to
purchase the number of Common Shares specified on Schedule A hereto for a purchase price
with respect to each Common Share equal to the Option Price, subject to the terms of this Agreement
and the Plan.
“Option Price” means, with respect to each Common Share covered by an Option, the
purchase price specified on Schedule A hereto for which the Participant may purchase such
Common Share upon exercise of an Option.
“Participant” means the grantee of the Options, whose name is set forth on the
signature page of this Agreement; provided that for purposes of Section 4 and Section
7, following such person’s death or Disability “Participant” shall be deemed to include such
person who, in the event of the death or Disability of the Participant, as applicable, shall
thereafter be entitled to exercise the Option.
“Plan” means the RSC Holdings Inc. Amended and Restated Stock Incentive Plan.
“Securities Act” means the United States Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations thereunder that are in effect at the time, and any
reference to a particular section thereof shall include a reference to the corresponding section,
if any, of such successor statute, and the rules and regulations.
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“Special Termination” means a termination of the Participant’s service as a result of
his or her death or Disability.
Section 7. Miscellaneous.
(a) Withholding. The Company or one of its Subsidiaries may require the Participant
to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state
and local and non-U.S. tax withholding or other similar charges or fees that may arise in
connection with the grant, vesting, exercise, purchase, sale or cancellation of the Options or the
Exercise Shares. The Participant may not exercise the Options unless the tax withholding
obligations of the Company and/or any Subsidiary are satisfied. Accordingly, the Participant may
not be able to exercise the Options when desired even though the Options have vested, and the
Company shall have no obligation to issue Common Shares unless such tax withholding obligations are
satisfied.
(b) Authorization to Share Personal Data. The Participant understands that the
Company, and/or its Affiliates hold certain personal information about the Participant, including
but not limited to the Participant’s name, home address, telephone number, date of birth, national
social security or social insurance number, salary, nationality, job title, and details of all
Common Shares granted, cancelled, vested, unvested, or outstanding (the “Personal Data”). Certain
Personal Data may also constitute “Sensitive Personal Data” within the meaning of applicable local
law. Such data include but are not limited to Personal Data and any changes thereto, and other
appropriate personal and financial data about the Participant. The Participant hereby provides
express consent to the Company and/or its Affiliates to collect, hold, and process any such
Personal Data and Sensitive Personal Data. The Participant also hereby provides express consent to
the Company and/or its Affiliates to transfer any such Personal Data and Sensitive Personal Data
outside the country in which the Participant is employed or retained, including the United States.
The legal persons for whom such Personal Data are intended are the Company, its Affiliates and any
company providing services to the Company or its Affiliates in connection with the administration
of the Plan. The Participant has been informed of the Participant’s right to access and correct
the Participant’s Personal Data by applying to the Company’s Human Resources Department.
(c) Authorization of Electronic Delivery. The Participant understands that any
reference herein to a “written” agreement or document shall include any agreement or document
delivered electronically or posted on the Company’s website, intranet, or designated internet site
and consents to such electronic delivery as a condition of the grant of the Options. Participant
hereby acknowledges receipt of the Plan and the Plan prospectus.
(d) Tax Advice. The Participant understands and acknowledges that (1) the Company has
advised that the Participant should seek independent professional advice regarding the tax
consequences of the Options, (2) the Company has not provided the Participant with any tax advice
relating to the Options, and (3) any tax information provided by the Company that relates to the
Options is for informational purposes only and may not be relied upon by the Participant.
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(e) No Rights as Stockholder; No Voting Rights. The Participant shall have no rights
as a stockholder of the Company with respect to any Common Shares covered by the Options until the
exercise of the Options and delivery of the Common Shares. No adjustment shall be made for
dividends or other rights for which the record date is prior to the delivery of the Common Shares.
(f) No Right to Continued Service. Nothing in this Agreement shall be deemed to
confer on the Participant any right to continue in the employ or service of the Company or any
Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to
terminate such service at any time.
(g) No Notification of Expiration of Options. Nothing in this Agreement or in any
document or communication delivered to the Participant shall be deemed to create in any way
whatsoever any obligation on the Company’s part to notify the Participant regarding any pending
expiration of the Options.
(h) Non-Transferability of Options. The Options may be exercised only by the
Participant. The Options are not assignable or transferable, in whole or in part, and they may
not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated,
hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift,
operation of law or otherwise) other than by will or by the laws of descent and distribution upon
the Participant’s death; provided that the Board may permit, on such terms as it determines
appropriate (including, but not limited to, assurances as to compliance with all applicable
securities and other laws), a transfer for estate planning purposes.
(i) Notices. All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been given if delivered
personally or sent by certified or express mail, return receipt requested, postage prepaid, or by
any recognized international equivalent of such delivery, to the Company or the Participant, as the
case may be, at the following addresses or to such other address as the Company or the Participant,
as the case may be, shall specify by notice to the other:
| (1) | if to the Company, to it at: |
||
(2) if to the Participant, to the Participant at his or her most recent address as
shown on the books and records of the Company or Subsidiary employing or retaining the
Participant; and
All such notices and communications shall be deemed to have been received on the date of delivery
if delivered personally or on the third business day after the mailing thereof.
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(j) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective permitted successors and assigns
under this Agreement. Nothing in this Agreement, express or implied, is intended or shall be
construed to give any person other than the parties to this Agreement or their respective permitted
successors or assigns under this Agreement any legal or equitable right, remedy or claim under or
in respect of any agreement or any provision contained herein.
(k) Waiver; Amendment.
(1) Waiver. Any party hereto or beneficiary hereof may by written notice to the other
parties: (A) extend the time for the performance of any of the obligations or other actions of the
other parties under this Agreement, (B) waive compliance with any of the conditions or covenants of
the other parties contained in this Agreement, and (C) waive or modify performance of any of the
obligations of the other parties under this Agreement. Except as provided in the preceding
sentence, no action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver
by the party or beneficiary taking such action of compliance with any representations, warranties,
covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of
a breach of any provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or
privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges
hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same
at any subsequent time or times hereunder. Notwithstanding anything to the contrary in this
Agreement or the Plan to the contrary, no waiver or other action by the Company or its Subsidiaries
that would result in this Agreement being subject to taxation under Section 409A of the Code shall
be effective unless the Participant has explicitly consented thereto in writing.
(2) Amendment. This Agreement may not be amended, modified or supplemented orally,
but only by a written instrument executed consistent herewith by the Participant and the Company.
(l) Assignability. Neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by the Participant without the
prior written consent of the Company.
(m) Applicable Law. This Agreement shall be governed by and construed in accordance
with the law of the State of Delaware regardless of the application of rules of conflict of law
that would apply the laws of any other jurisdiction.
(n) Section and Other Headings, etc. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the Company has executed this Agreement as of the date first above written
and the Participant’s agreement to the terms hereof shall be evidenced by the Participant’s
acceptance of the grant of this Option in the manner established by the Company. In the event the
Participant’s acceptance of the grant of this Option is pursuant to electronic means, such
acceptance shall be deemed to be the affixing of the Participant’s electronic signature to this
Agreement with, to the extent permitted by law, the same and effect of a manually applied signature
to this Agreement.
| RSC HOLDINGS INC. |
||||
| By: | ||||
| Name: | Xxxx Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
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Schedule A
Number of Common Shares and Option Prices
The following Option Prices apply with respect to the indicated number of Common Shares for which
the Options were granted:
| Option Price (Per Common Share): | ||
| Number of Common Shares: | $[OPTION PRICE] | |
| $ | ||
| $ | ||
| $ | ||
Total: [TOTAL SHARES GRANTED] |
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