STOCK OPTION AGREEMENT
Exhibit 10.1
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. Each Common Share covered by the Option shall have the Option Price
specified on Exhibit A hereof.
Section 2. Vesting and Exercisability. Except as otherwise provided in
Section 5 of this Agreement, the Options shall become vested as
follows: _____________________________________
, 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 as of the effective date of
such Special Termination.
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,
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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 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 the 180th 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), whichever is applicable; (ii) the Normal Termination Date;
or (iii) the cancellation of the Options pursuant to Section 5(a) (the earliest to occur of
such events is 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 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
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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 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 and Cancellation. Except as otherwise provided in this Section 5,
in the event of a Change in Control, all then-outstanding Options (whether vested or unvested)
shall be canceled in exchange for a payment having a value equal to the excess, if any, of (i) the
product of the Change in Control Price multiplied by the aggregate number of shares covered by all
such Options immediately prior to the Change in Control over (ii) the aggregate Option Price for
all such shares, to be paid as soon as reasonably practicable, but in no event later than 30 days
following the Change in Control.
(b) Alternative Award. Notwithstanding Section 5(a), no cancellation,
termination, or settlement or other payment shall occur with respect to any Option if the Board
reasonably determines prior to the Change in Control that the Participant shall receive an
Alternative Award meeting the requirements of the Plan. Notwithstanding anything to the
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contrary
set forth in the Plan, any Alternative Award shall be deemed to have a substantially equivalent
economic value to the Option if the Alternative Award reflects the intrinsic value of the Option,
if any, determined at the time of the Change in Control. Therefore, if at the time of the Change
in Control the Options do not have any intrinsic value (i.e., the Exercise Price is not less than
the Change in Control Price), then the Company shall have no obligation to issue an Alternative
Award or pay any cash settlement in exchange for cancellation of the Options.
(c) Limitation of Benefits. 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) or Section 5(b) 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 an “excess
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 Section
5 to the contrary, the payments, deemed payments or other benefits such Participant would
otherwise receive under Section 5(a) or Section 5(b) shall be reduced to the extent
necessary to eliminate any such excess parachute payment and such Participant shall have no further
rights or claims with respect thereto. If a reduction in payments or benefits is necessary,
reduction shall occur in the following order unless Participant elects in writing a different order
(provided, however, that such election shall be subject to Company approval if made on or after the
effective date of the event that triggers the payment): reduction of cash payments, cancellation of
accelerated vesting of equity awards; reduction of other benefits. In the event that acceleration
of vesting of equity awards is to be reduced, such acceleration of vesting shall be canceled in the
reverse order of the date of grant of such equity award (i.e., the earliest granted equity award
cancelled last) unless Participant elects in writing a different order for cancellation.
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.
“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.
“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 “Participant” shall be deemed to include such person’s
beneficiary or estate and following such Person’s Disability, “Participant” shall be deemed to
include such person’s legal representative.
“Exercise Date” has the meaning given in Section 4(a).
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“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.
“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.
“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.
“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 or purchase of the Options.
(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
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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.
(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 to the
estate of the Participant upon the Participant’s death or with the Company’s consent; 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) permit 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
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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.
(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.
(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.
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(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.
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
Options
Total Number of Common Shares for the Purchase of Which Options have been
Granted:
|
Option Price (Per Common Share): | |
[TOTAL SHARES GRANTED]
|
[OPTION PRICE] |
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