Exhibit 10(E)
Amendment No. 1 to Employment Agreement
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Reference is made to the Employment Agreement dated as of October 10, 1997
(the "Agreement"), between United Rentals, Inc. (subsequently renamed United
Rentals (North America), Inc.), a Delaware corporation (the "Company"), and
Xxxxxx Xxxxx ("Employee"). The Company and Employee agree that the Agreement
shall be amended and supplemented as set forth below. Except as specifically
set forth below, the Agreement remains unmodified and in full force and effect:
1. Modification to Paragraph 2
1.1. The following new subparagraph shall be added following Paragraph
2(d):
(e) The Company and Xxxxxxx X. Xxxxxx ("Xxxxxx") are
parties to an Employment Agreement dated September 19, 1997 (the
"Xxxxxx Agreement"). Paragraph 6(a)(iii)(D) of the Xxxxxx
Agreement provides that Xxxxxx may terminate the Xxxxxx Agreement
for "Good Reason" (as defined in the Xxxxxx Agreement). If (1)
Xxxxxx terminates the Xxxxxx Agreement for Good Reason (as
defined in the Xxxxxx Agreement) (2) the circumstances
constituting such "Good Reason" are described in clause (i) of
the definition of such term in the Xxxxxx Agreement, and (3)
concurrently therewith or during the 90-day period that commences
on the date of such termination, Employee resigns as an employee
of the Company or his employment with the Company otherwise
terminates for any reason, the Company shall be obligated to pay
to Employee a severance payment equal to 7.46 times the sum of
(x) the Employee's annual base salary in effect at the time of
termination plus (y) the highest annual cash bonus (if any) paid
by the Company to Employee during the three-year period preceding
the date of termination. Such severance payment shall be payable
in a lump sum payment within fifteen (15) days of the termination
of Employee's employment.
2. Addition of New Paragraph 12 Relating to Taxes
2.1. The following new Paragraph 12 is added after Paragraph 11.
12. Taxes
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(a) The payment of the base salary and any bonus or other
incentive compensation to Employee hereunder shall be subject to
all federal, state and local withholding taxes, social security
deductions and any other required payroll deductions.
(b) If all or any portion of the payments and benefits
which Employee is entitled to receive pursuant to the terms of
this Agreement or any other plan, arrangement or agreement in
respect of the Company or its affiliates (the "Payments")
constitutes "excess parachute payments" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), that are subject to the excise tax (the "Excise
Tax") imposed by Section 4999 of
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the Code (or similar tax and/or assessment), the Company (or its
successors or assigns) shall pay to Employee an additional amount
("Gross-Up Payment") such that the net amount retained by
Employee, after deduction of (i) any Excise Tax on Payments, (ii)
any federal, state and local income tax and Excise Tax upon the
payment provided for by this paragraph 12(b), and (iii) any
interest and penalties imposed in respect of the Excise Tax shall
be equal to the full amount of the Payments. For purposes of
determining the amount of the Gross-Up Payment, Employee shall be
deemed to pay federal income taxes at the highest marginal rate
of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made, and state and local income taxes
at the highest marginal rates of taxation in the state and
locality of Employee's residence on the date the Gross-Up Payment
is to be made, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and
local taxes.
(c) The Gross-Up Payment for any Payment made shall be paid
to Employee within ten (10) days after the Imposition of Excise
Tax, unless the Company undertakes to indemnify him as provided
in paragraph 12(d). The "Imposition of Excise Tax" shall mean the
earliest of: (i) the issuance by the Internal Revenue Service of
a notice stating in effect that an Excise Tax is due with respect
to the Payment; (ii) Employee's delivery to the Company of an
opinion of tax counsel selected by Employee that all or a portion
of the Payment is subject to the Excise Tax and the amount of the
Excise Tax on the Payment; or (iii) the Company's delivery to
Employee of an opinion of tax counsel selected by the Company and
acceptable to Employee that all or a portion of the Payment is
subject to the Excise Tax and the amount of the Excise Tax on the
Payment.
(d) In lieu of paying the Gross-Up Payment for any Payment,
the Company may elect to undertake, at its sole expense, the
defense and settlement of any assessment by the Internal Revenue
Service of the Excise Tax on any Payment. If the Company so
elects, the Company shall protect, defend, indemnify and hold
Employee forever harmless from and against the Excise Tax on such
Payment and payments pursuant to this paragraph 12(d) and any
federal, state or local income tax (determined pursuant to the
last sentence of paragraph 12(b)) upon payments pursuant to this
paragraph 12(d) and any and all liabilities, demands, claims,
actions, causes of action, assessments, losses, costs, damages or
expenses, including attorneys' and accountants' fees in
connection with any thereof, and any interest and penalties
sustained by Employee as a result of or arising out of or by
virtue of the Company's undertaking.
(e) If the Excise Tax is determined to be less than the
amount taken into account in determining the Gross-Up Payment
paid pursuant to paragraph 12(c), Employee shall repay to the
Company, within ten (10) days after the time that the amount of
such reduction in Excise Tax is determined, the portion of the
Gross-Up Payment attributable to such reduction plus interest on
the amount of such repayment at the rate provided in section
1274(b)(2)(B) of the Code for debt instruments with a maturity
after issuance equal to the period beginning on the date the
Gross-Up Payment was made and ending on the date of repayment
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required by this sentence. If the Excise Tax is determined to
exceed the amount taken into account in determining the Gross-Up
Payment paid pursuant to paragraph 12(c), the Company within ten
(10) days after the time that the amount of such excess Excise
Tax is determined shall make an additional payment to Employee of
an amount equal to such excess plus an amount equal to any
interest and penalties payable to the Internal Revenue Service
with respect to such excess and any Excise Tax on payment
pursuant to this sentence and any federal, state and local income
tax (determined pursuant to the last sentence of paragraph 12(b))
upon payments made pursuant to this sentence.
3. Amendment and Restatement. This Amendment No. 1 amends and restates in
its entirety any amendments heretofore executed to the Agreement.
In Witness Whereof, the parties have on August 2, 2000 executed and
delivered this Amendment No. 1 to the Agreement.
UNITED RENTAL (NORTH AMERICA), INC.
By ___________________________
______________________________
Xxxxxx Xxxxx
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