Exhibit 10.5.2
XXXXXXX RENTCORP
2000 LONG-TERM STOCK BONUS PLAN
XXXXX XXXXXXXX
2001-2003 PROGRAM
This Agreement by and between Xxxxx Xxxxx ("Xxxxxx") and McGrath
RentCorp, a California corporation, provides that Xxxxxx is a participant in the
2001-2003 Program of the XxXxxxx RentCorp 2000 Long-Term Stock Bonus Plan under
the following terms and conditions.
1. INITIAL VALUES: LTB Base Points: XXX
EBITDA Multiplier: X.X
Strike Result: XX.X%
Backward
Average EVPS: $XX.XX
2. DEFINITIONS. For purposes of this Agreement, the following terms will
have the following meanings ascribed to such terms below.
2.1 "Average EVPS Increase Percentage" shall be calculated in the
manner set forth in Section 3.1.4 below.
2.2 "Backward Average EVPS" shall be the number set forth in
Section 1 above. (The Backward Average EVPS set forth above was calculated by
adding together the EVPS for the years 1998, 1999 and 2000, and then dividing
that sum by three (3).)
2.3 "Board" shall mean the Board of Directors of XxXxxxx
RentCorp.
2.4 "Change in Control" shall mean that there has been a
corporate merger or consolidation, a sale of all or substantially all of the
assets, or a purchase of outstanding shares that results in a corporation,
partnership, person or group of persons (which corporation, partnership, person
or group of persons is not affiliated with Xxxxxx X. XxXxxxx) owning (i) more
than fifty percent (50%) of XxXxxxx RentCorp's outstanding voting securities or
(ii) all or substantially all of its assets and business.
2.5 "Debt" for any particular fiscal year shall mean the
aggregate amount as of the end of that fiscal year, without duplication, of all
of XxXxxxx RentCorp's (1) obligations for borrowed money, (b) obligations
evidenced by bonds (other than assessment and other special bonds associated
with real property holdings), debentures, notes or other similar instruments,
(c) capitalized lease obligations, and (d) obligations or liabilities of others
secured by a lien on any of XxXxxxx RentCorp's assets, whether or not such
obligation or liability is assumed.
2.6 "EBITDA" for any particular fiscal year shall mean (1) the
Income from Operations of XxXxxxx RentCorp for that year as disclosed in XxXxxxx
RentCorp's published, audited financial statements for that year; plus (2)
Depreciation and Amortization for that year as disclosed in XxXxxxx RentCorp's
audited financial statements for that year; plus (3) any other non-cash items of
expense included in such Income from Operations that are not reasonably expected
by XxXxxxx RentCorp's management to settle in cash; and minus (4) any non-cash
items of income included in such Income from Operations that are not reasonably
expected by XxXxxxx RentCorp's management settle in cash.
2.7 "EBITDA Multiplier" shall be the number set forth in Section
1 above.
2.8 "Enterprise Value" for any particular fiscal year shall be
calculated in the manner set forth in Section 3.1.1 below.
2.9 "EVPS" for any particular fiscal year shall be calculated by
dividing the Enterprise Value for that year by the Number of Shares for that
year.
2.10 "Forward Average EVPS" shall be calculated in the manner set
forth in Section 3.1.3 below.
2.11 "Xxxxxx Shares" shall mean all securities of XxXxxxx
RentCorp now owned by Xxxxxx or hereafter acquired by him in any manner
whatsoever.
2.12 "LTB Base Points" shall be the number set forth in Section 1
above.
2.13 "LTB Final Points" shall be calculated in the manner set
forth in Section 3.1.5 below.
2.14 "Number of Shares" for any particular fiscal year shall mean
the Shares Used In Per Share Calculation, Diluted as such figure is disclosed in
XxXxxxx RentCorp's published, audited financial statements for that year.
2.15 The "Option to Repurchase" is the option granted by Xxxxxx
in Section 6 below to XxXxxxx RentCorp to purchase the Xxxxxx Shares.
2.16 "Stock Bonus Allocation" shall be the number of shares of
XxXxxxx RentCorp Common Stock allocated to Xxxxxx as a bonus under this Program,
as determined in accordance with Section 3.2 below.
2.17 "Stock Value" as of a particular date shall mean the then
current fair market value of XxXxxxx RentCorp's Common Stock determined by
calculating the average of the high and low prices reported for transactions in
such Common Stock for each of the five preceding days on which transactions
occurred on NASDAQ or any exchange on which the stock is then traded, as
reported by The NASDAQ Stock Market, Inc. In the event XxXxxxx'x Common Stock is
not then traded on NASDAQ or an exchange, the fair market value of the Common
Stock shall be determined by the Board in good faith.
2.18 "Strike Result" shall be the number set forth in Section 1
above.
2.19 A "Successor to XxXxxxx RentCorp" shall be (i) any
corporation which is the surviving corporation in a merger or consolidation with
XxXxxxx RentCorp, or (ii) any corporation, partnership or person(s) which
acquires all or substantially all of the assets of XxXxxxx RentCorp in a
transaction wherein a majority of the employees of XxXxxxx RentCorp continue to
be employed by such purchaser.
2.20 "Termination of Employment" shall mean the termination of
Xxxxxx's employment with XxXxxxx RentCorp (and its subsidiaries) for any reason
whatsoever, whether by voluntary resignation due to disability or otherwise, by
reason of Xxxxxx's death, or at the election of XxXxxxx RentCorp for any reason
whatsoever. A leave of absence approved by the Board of Directors of XxXxxxx
RentCorp shall not be considered to be a Termination of Employment for purposes
of this Agreement.
3. CALCULATION OF STOCK BONUS ALLOCATION.
3.1 Calculation of LTB Final Points. As soon as the audited
financial statements of XxXxxxx RentCorp for the year ended December 31, 2003
have been published, the LTB Final Points shall be calculated as follows:
3.1.1 Enterprise Value shall be calculated for each of the years
2001, 2002 and 2003 in accordance with the following formula: Enterprise Value =
(EBITDA * EBITDA Multiplier) - Debt.
3.1.2 EVPS shall then be calculated for each of the years 2001,
2002 and 2003 by taking the Enterprise Value for that year and dividing it by
the Number of Shares for that year.
3.1.3 Forward Average EVPS shall then be calculated by adding
together the EVPS for each of the years 2001, 2002 and 2003 calculated in
accordance with Section 3.1.2 above, and then dividing that sum by three (3).
3.1.4 The Average EVPS Increase Percentage shall then be
calculated in accordance with the following formula: Average EVPS Increase
Percentage = (Forward Average EVPS - Backward Average EVPS) / Backward Average
EVPS.
3.1.5 LTB Final Points are then calculated in accordance with the
following formula: LTB Final Points = LTB Base Points * (Average EVPS Increase
Percentage - Strike Result) * 100.
3.2 Allocation of Stock Bonus. Xxxxxx shall be allocated one (1)
share of XxXxxxx RentCorp Common Stock for each LTB Final Point, or portion
thereof, calculated in accordance with Section 3.1 above.
3.2.1 The number of shares of XxXxxxx RentCorp Common Stock to be
allocated to Xxxxxx pursuant to this Section 3.2 shall be proportionally
adjusted for any increase or decrease in the number of outstanding shares of
Common Stock of
XxXxxxx RentCorp resulting from a subdivision or consolidation of shares, or for
the payment of a stock dividend (but only on the Common Stock), or for any other
increase or decrease in the number of such shares effected without receipt of
consideration by XxXxxxx RentCorp. Adjustments under this Section 3.2.1 shall be
determined by the Board, whose determination as to what adjustments shall be
made, and the extent thereof, shall be final, binding and conclusive.
4. ISSUANCE OF SHARE CERTIFICATES.
4.1 Issuance of Stock Certificates. As soon as reasonably
practical following the determination of Xxxxxx's Stock Bonus Allocation,
XxXxxxx RentCorp shall cause five stock certificates to be issued in the name of
Xxxxxx, each one evincing twenty percent (20%) of the number of shares of
XxXxxxx RentCorp Common Stock allocated to him as a Stock Bonus.
4.2 Delivery of First Stock Certificate. XxXxxxx RentCorp shall
deliver to Xxxxxx one (1) of the stock certificates issued in accordance with
Section 4.1 above.
4.3 Delivery and Re-Delivery of Four Remaining Stock
Certificates. XxXxxxx RentCorp shall deliver the remaining four (4) stock
certificates to Xxxxxx, and Xxxxxx shall promptly redeliver back to XxXxxxx
RentCorp the four (4) stock certificates to be held by XxXxxxx RentCorp for
later redelivery to Xxxxxx in accordance with, and subject to, the forfeiture
provisions set forth in Section 5 below.
4.4 Option to Receive a Portion in Cash. With respect to the
shares of Common Stock delivered to Xxxxxx pursuant to Section 4.2 above, or
with respect to any shares redelivered to him in accordance with Section 5.2
below, Xxxxxx may elect, by written notice given to XxXxxxx RentCorp not less
than ten (10) days nor more than thirty (30) days prior to the delivery or
redelivery of a certificate evincing such shares, to receive the Stock Value of
such shares in cash, in lieu of the issuance and delivery of such shares. For
purposes of determining the Stock Value of such shares, the Stock Value shall be
calculated as of the date of such notice.
4.4.1 Notwithstanding the foregoing right to elect to receive
cash, the maximum amount of cash which Xxxxxx shall have the right to receive in
lieu of the issuance and delivery of shares shall be forty percent (40%) of the
aggregate Stock Value of Xxxxxx's entire Stock Bonus Allocation.
5. FORFEITURE UPON TERMINATION OF EMPLOYMENT.
5.1 Termination of Employment Prior to End of Program. In the
event of Xxxxxx's termination of employment prior to December 31, 2003, Xxxxxx
shall have no right to receive any Stock Bonus Allocation nor any certificates
evincing any shares of XxXxxxx RentCorp Common Stock to be issued pursuant to
this Agreement.
5.2 Subsequent Delivery of Stock Certificates. Provided Xxxxxx
has remained in the employ of XxXxxxx RentCorp, or its subsidiaries,
continuously from the date hereof through the applicable subsequent certificate
delivery date, one certificate evincing twenty percent (20%) of the Stock Bonus
Allocation held in the possession of XxXxxxx RentCorp in accordance with Section
4.3 above, shall be delivered to Xxxxxx on December 31, 2004, and another one of
the certificates shall be delivered to Xxxxxx each December 31 thereafter for as
long as Xxxxxx remains in the continuous employ of XxXxxxx RentCorp, or its
subsidiaries, until December 31, 2007, at which time all five stock certificates
shall have been delivered to Xxxxxx.
5.3 Termination of Employment Subsequent to December 31, 2003. In
the event of Xxxxxx's Termination of Employment subsequent to December 31, 2003,
Xxxxxx shall have the right to retain, subject to the Option to Repurchase set
forth in Section 6 below all share certificates evincing Stock Bonus Allocations
which had been delivered to him pursuant to Sections 4.2 or 5.2 above prior to
his Termination of Employment; however, upon his Termination of Employment, such
share certificates still held at that time by XxXxxxx RentCorp pursuant to
Section 4.3 or 5.2 above shall be immediately forfeited by him, and the shares
evinced thereby shall be deemed canceled and returned to the status of
authorized but unissued shares of XxXxxxx RentCorp, and Xxxxxx shall have no
further rights or claims thereto.
6. OPTION TO REPURCHASE. Upon Termination of Employment, Xxxxxx shall,
and does hereby, offer for sale to XxXxxxx RentCorp, all, but not less than all,
of the Xxxxxx Shares on the terms specified in this Section 6.
6.1 Notice of Exercise. In order to exercise the Option to
Repurchase the Xxxxxx Shares, XxXxxxx RentCorp shall give notice of its
intention to so exercise to Xxxxxx, or to his personal representative in the
event of his death or incapacity, within three (3) months following his
Termination of Employment.
6.2 Repurchase Price. The Repurchase Price for the repurchase of
the Xxxxxx Shares shall be the Stock Value as of the date of Termination of
Employment or as of the date of the giving of the notice of exercise of the
Option to Repurchase, with the election of which price shall apply being stated
in the notice of exercise.
6.3 Terms of Payment. Payment of the Repurchase Price shall be
made at the time that the notice of exercise of the Option to Repurchase is
given. XxXxxxx RentCorp may first offset against the Repurchase Price due to
Xxxxxx any amount of indebtedness owed by Xxxxxx to XxXxxxx RentCorp. Payment of
the net amount of the Repurchase Price after the offset of indebtedness shall be
as follows:
6.3.1 One-third (1/3) thereof in cash or by check; and
6.3.2 The remaining two-thirds (2/3) thereof by means of the
delivery of a Promissory Note, bearing interest at the rate of nine percent (9%)
per annum on the unpaid principal amount, and payable in ten (10) equal annual
installments of principal plus accrued interest, commencing one year from the
date thereof. Such Note shall permit prepayment of any amount by XxXxxxx
RentCorp at any time without penalty.
6.4 Other Shareholders. XxXxxxx RentCorp may assign, partially or
completely, its Option to repurchase to one or more of its shareholders, and
each such assignee shall have the right to repurchase the Xxxxxx Shares in his,
her or its own name and for his, her or its own account, all on the same terms
and conditions specified in this Section 6; provided, that the exercise of the
Option to Repurchase as so assigned shall result in the repurchase of all of the
Xxxxxx Shares.
6.5 Restrictive Legend. The certificates evincing the Xxxxxx
Shares shall be endorsed with an appropriate legend referring to the Option to
Repurchase granted by this Section 6. Xxxxxx shall immediately cause to be
delivered to XxXxxxx RentCorp all certificates evincing Xxxxxx Shares which are
currently outstanding so that they may be imprinted with such a legend. Such
certificates shall be returned to Xxxxxx after they have been imprinted with the
appropriate legend.
6.6 Permitted Transfers. Notwithstanding the provisions of this
Section 6, nothing herein shall prevent Xxxxxx from making a bona fide sale or
gift of any of the Xxxxxx Shares.
7. RESTRICTED ACTIVITIES.
7.1 Unfair Trade Practices. Xxxxxx acknowledges that the success
of XxXxxxx RentCorp's business as conducted depends to a large extent upon the
business practices and methods used by it and upon the knowledge of the needs,
preferences and particularities of each of its customers and suppliers, which
practices, methods and knowledge are continuously developed by XxXxxxx RentCorp.
Xxxxxx further acknowledges that these practices, methods and knowledge
constitute trade secrets which are valuable assets belonging to XxXxxxx
RentCorp. Accordingly, Xxxxxx agrees that, during his employment with XxXxxxx
RentCorp and for a period of five (5) years immediately following his
Termination of Employment, he shall not, either directly or indirectly, (i)
disclose to any person, firm or corporation, or use himself in any way, any
trade secret of XxXxxxx RentCorp (except as may be required in the course of his
employment with XxXxxxx RentCorp and for its benefit), or (ii) call on, solicit,
divert or take away, or attempt to call on, solicit, divert or take away any
person, firm or corporation who is a customer of or a supplier to XxXxxxx
RentCorp, or who is being solicited by XxXxxxx RentCorp at the time of Xxxxxx's
Termination of Employment, or who had been a customer of or supplier to XxXxxxx
RentCorp during the six months immediately preceding Xxxxxx's Termination of
Employment.
7.2 Covenant Not to Compete. In order to protect the element of
good will purchased in part by payment of the Repurchase Price for the Xxxxxx
Shares, and as part of the consideration for the payment of the Repurchase Price
in the event XxXxxxx RentCorp (or some of its shareholders) purchases all of the
Xxxxxx Shares, Xxxxxx agrees, for a period of two (2) years after such purchase,
not to engage or participate, or cause any other person, firm or corporation to
become engaged, in any activity or business within the geographical regions
within which XxXxxxx RentCorp conducts its business as of the date of
Termination of Employment, either directly or indirectly, as an employee, agent,
representative, partner, owner, director, officer or investor, which is in the
same or similar business as XxXxxxx RentCorp. For purposes of this Section 7.2,
a purchase of the Xxxxxx Shares shall be deemed to have occurred when XxXxxxx
RentCorp (and/or other shareholders) tenders the Repurchase Price in accordance
with Section 6.3 above.
7.3 Enforcement. Xxxxxx agrees that a violation on his part of
any of the terms of this Agreement shall cause irreparable damage, the exact
amount of which is impossible to ascertain, and for that reason agrees that
XxXxxxx RentCorp (and/or the other shareholders) shall be entitled to a decree
of specific performance of the terms hereof and/or an injunction restraining
further violations; said right to be in addition to any other remedies available
under law.
8. SUCCESSOR TO XXXXXXX RENTCORP.
8.1 Assumption of Program Obligations by Successor. Any Successor
to XxXxxxx RentCorp shall be required to assume the obligations then outstanding
under this Program, or in the alternative, to enter into a substitute program
which is approved and accepted by Xxxxxx in writing, which approval and
acceptance shall not be unreasonably withheld.
8.2 Termination of Employment. As used in this Section 8 only,
"Termination of Employment" shall not include a termination of Xxxxxx's
employment by reason of his voluntary resignation due to disability or otherwise
or by reason of his death.
8.3 Effect of Change in Control. In the event of a Termination of
Employment at the time of a Change in Control or thereafter,
8.3.1 The share certificate delivery schedule set forth in
Sections 4 and 5 above shall accelerate and the full Stock Bonus Allocation
shall vest as of the date of such Termination of Employment notwithstanding
Section 5.3 above, and all share certificates then held by XxXxxxx RentCorp
pursuant to Section 4.3 above shall be delivered to Xxxxxx; and
8.3.2 In the event Xxxxxx's Termination of Employment is prior to
December 31, 2003, the calculation of the LTB Final Points in Section 3.1 above
shall be made as of the last fiscal quarter completed prior to the Termination
of Employment, with appropriate adjustments to the calculation therein of the
Average Return on Equity.
9. MISCELLANEOUS PROVISIONS.
9.1 Tax Withholding. XxXxxxx RentCorp (or any of its subsidiaries
which employ Xxxxxx) shall have the right to deduct any sums that federal, state
or local tax law requires to be withheld with respect to the issuance of Common
Stock under this Program or as otherwise may be required by such laws. XxXxxxx
RentCorp (or such subsidiary) may require, as a condition to issuing shares of
Common Stock under this Program, that Xxxxxx or his beneficiaries pay any sums
that federal, state or local tax law requires to be withheld with respect to
such issuance.
9.2 Privileges of Stock Ownership. Xxxxxx shall not be entitled
to the privileges of stock ownership as to any shares of Common Stock which have
been allocated to him but for which certificates have not been issued and
delivered to him.
9.3 Non-Transferability of Stock Bonus Allocation. The right
granted hereby to Xxxxxx to receive shares of XxXxxxx RentCorp Common Stock
under certain circumstances shall be non-transferrable by Xxxxxx other than by
will or the laws of descent and distribution. XxXxxxx RentCorp shall not be
liable for the debts, contracts or engagements of Xxxxxx or his beneficiaries,
and rights under this Program may not be taken in execution or by attachment or
garnishment, or by any other legal or equitable proceeding; nor shall Xxxxxx or
his beneficiaries have any right to assign, pledge or hypothecate any rights or
benefits hereunder.
9.4 No Effect on Employment. Nothing contained in this Agreement
shall confer upon Xxxxxx any right to continue in the employ of XxXxxxx RentCorp
(or its subsidiaries) or constituted any contract or agreement of employment.
9.5 Governmental Regulations. This Program, the grant of Stock
Bonus Allocations and the issuance of Common Stock hereunder shall be subject to
all applicable rules and regulations of governmental authorities. At the time of
the issuance of any shares of Common Stock to Xxxxxx under this Program, and as
a condition to the issuance of such shares, Xxxxxx shall give such
representations and warranties in writing to XxXxxxx RentCorp as its legal
counsel shall deem appropriate to insure compliance with applicable securities
laws and regulations. XxXxxxx RentCorp may place upon the certificates evincing
the shares of Common Stock being issued legends referring to restrictions on
transfer as may be appropriate in connection with compliance with applicable
securities laws and regulations.
10. STANDARD PROVISIONS.
10.1 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (i) on the date of service if delivered personally, (ii) on
the date of transmission if sent by facsimile transmission with printed proof of
electronic receipt, (iii) on the date of delivery if delivered by a courier
service with proof of delivery, or (iv) on the third business day after mailing
if mailed by first class mail, certified, return receipt requested, postage
prepaid, to the following addresses:
If to XxXxxxx RentCorp, then to: McGrath RentCorp
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Corporate Secretary
Facsimile No.: 0-000-000-0000
With a copy to: Xxxxxxxxxxx Xxxx, Esq.
0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Facsimile No.: 0-000-000-0000
If to Xxxxxx, then to: Xxxxxx Xxxxxx
McGrath RentCorp
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile No.: 0-000-000-0000
10.2 Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement between the parties pertaining to the subject
matter contained herein and supersedes all prior and contemporaneous agreements,
representations and understandings of the parties. No supplement, modification
or amendment to this Agreement shall be binding unless executed in writing by
the party to be charged. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
10.3 Remedies. The rights and remedies provided to any party
herein shall be cumulative and in addition to any other or further rights or
remedies available at law or in equity.
10.4 Disputes. All disputes, controversies and claims arising out
of or relating to this Agreement, or the interpretation, construction,
performance or breach hereof shall be settled by arbitration in accordance with
the rules of the American Arbitration Association, regardless of whether one of
the parties fails or refuses to participate; and such arbitration shall take
place in Alameda County, State of California. Judgment upon the award rendered
by the arbitrator may be entered in any Court having jurisdiction thereof.
Notwithstanding the foregoing, either party hereby may bring an action in the
Superior Court of the State of California in and for Alameda County for
injunctive relief. In the event any court action is instituted, or a referral is
made to arbitration, to settle any dispute arising under this Agreement or to
enforce any right or obligation hereunder, the prevailing party shall be
entitled to recover its or his attorney fees and other expenses associated
therewith.
10.5 Severability. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, the meaning of such provision shall be
construed (to the extent feasible) so as to render the provisions valid and
enforceable, and if no feasible construction would save the provision, its
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement; rather this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
10.6 Governing Law. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of California as applied
to contracts that are executed and performed entirely in California.
10.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall be constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the ________ day of November, 2001, by the undersigned Chairman of the Board and
Chief Executive Officer of XxXxxxx XxxxXxxx, thereunto duly authorized by the
Board of Directors of said corporation, and by Xxxxxx.
XXXXXXX RENTCORP
BY
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XXXXXX X. XXXXXXX, CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
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XXXXXXX XXXXXX
