EXHIBIT 10.4
SENIOR RESTRICTED STOCK AGREEMENT- SERIES "Senior I"
Awardee: Xxxxxxx Xxxxx
Xxxxx Date: June 5, 2001
Award Shares: 235,000 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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