Exhibit 10.1
Appendix A
MCGRATH RENTCORP
2007 STOCK INCENTIVE
PLAN
(As Amended and Restated Effective
June 4, 2009)
1. Purposes of the Plan . The
purposes of this Plan are to attract and retain the best available
personnel, to provide additional incentives to Employees, Directors
and Consultants and to promote the success of the Company’s
business.
2. Definitions . The
following definitions shall apply as used herein and in the
individual Award Agreements except as defined otherwise in an
individual Award Agreement. In the event a term is separately
defined in an individual Award Agreement, such definition shall
supercede the definition contained in this
Section 2.
(a) “ Administrator
” means the Board or any of the Committees appointed to
administer the Plan.
(b) “ Affiliate ”
and “ Associate ” shall have the respective
meanings ascribed to such terms in Rule 12b-2 promulgated
under the Exchange Act.
(c) “ Applicable Laws
” means the legal requirements relating to the Plan and the
Awards under applicable provisions of federal securities laws,
state corporate and securities laws, the Code, the rules of any
applicable stock exchange or national market system, and the rules
of any non-U.S. jurisdiction applicable to Awards granted to
residents therein.
(d) “ Assumed ”
means that pursuant to a Corporate Transaction either (i) the
Award is expressly affirmed by the Company or (ii) the
contractual obligations represented by the Award are expressly
assumed (and not simply by operation of law) by the successor
entity or its Parent in connection with the Corporate Transaction
with appropriate adjustments to the number and type of securities
of the successor entity or its Parent subject to the Award and the
exercise or purchase price thereof which at least preserves the
compensation element of the Award existing at the time of the
Corporate Transaction as determined in accordance with the
instruments evidencing the agreement to assume the
Award.
(e) “ Award ”
means the grant of an Option, SAR, Restricted Stock, Restricted
Stock Unit or other right or benefit under the Plan.
(f) “ Award Agreement
” means the written agreement evidencing the grant of an
Award executed by the Company and the Grantee, including any
amendments thereto.
(g) “ Board ”
means the Board of Directors of the Company.
(h) “ Cause ”
means, with respect to the termination by the Company or a Related
Entity of the Grantee’s Continuous Service, that such
termination is for “Cause” as such term (or word of
like import) is expressly defined in a then-effective written
agreement between the Grantee and the Company or such Related
Entity, or in the absence of such then-effective written agreement
and definition, is based on, in the determination of the
Administrator, the Grantee’s: (i) performance of any act
or failure to perform any act in bad faith and to the detriment of
the Company or a Related Entity; (ii) dishonesty, intentional
misconduct or material breach of any agreement with the Company or
a Related Entity; or (iii) commission of a crime involving
dishonesty, breach of trust, or physical or emotional harm to any
person; provided, however, that with regard to any agreement that
defines “Cause” on the occurrence of or in connection
with a Corporate Transaction or a Change in Control, such
definition of “Cause” shall not apply until a Corporate
Transaction or a Change in Control actually occurs.
(i) “ Change in Control
” means a change in ownership or control of the Company
effected through either of the following transactions:
(i) the direct or indirect
acquisition by any person or related group of persons (other than
an acquisition from or by the Company or by a Company-sponsored
employee benefit plan or by a person
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that directly or indirectly
controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of
Rule 13d-3 of the Exchange Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of
the Company’s outstanding securities pursuant to a tender or
exchange offer made directly to the Company’s shareholders
which a majority of the Continuing Directors who are not Affiliates
or Associates of the offeror do not recommend such shareholders
accept, or
(ii) a change in the composition of
the Board over a period of twelve (12) months or less such
that a majority of the Board members (rounded up to the next whole
number) ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who are Continuing
Directors.
(j) “ Code ”
means the Internal Revenue Code of 1986, as amended.
(k) “ Committee ”
means any committee composed of members of the Board appointed by
the Board to administer the Plan.
(l) “ Common Stock
” means the common stock of the Company.
(m) “ Company ”
means McGrath RentCorp, a California corporation, or any successor
entity that adopts the Plan in connection with a Corporate
Transaction.
(n) “ Consultant
” means any person (other than an Employee or a Director,
solely with respect to rendering services in such person’s
capacity as a Director) who is engaged by the Company or any
Related Entity to render consulting or advisory services to the
Company or such Related Entity.
(o) “ Continuing
Directors ” means members of the Board who either
(i) have been Board members continuously for a period of at
least twelve (12) months or (ii) have been Board members
for less than twelve (12) months and were elected or nominated
for election as Board members by at least a majority of the Board
members described in clause (i) who were still in office at
the time such election or nomination was approved by the
Board.
(p) “ Continuous
Service ” means that the provision of services to the
Company or a Related Entity in any capacity of Employee, Director
or Consultant is not interrupted or terminated. In jurisdictions
requiring notice in advance of an effective termination as an
Employee, Director or Consultant, Continuous Service shall be
deemed terminated upon the actual cessation of providing services
to the Company or a Related Entity notwithstanding any required
notice period that must be fulfilled before a termination as an
Employee, Director or Consultant can be effective under Applicable
Laws. A Grantee’s Continuous Service shall be deemed to have
terminated either upon an actual termination of Continuous Service
or upon the entity for which the Grantee provides services ceasing
to be a Related Entity. Continuous Service shall not be considered
interrupted in the case of (i) any approved leave of absence,
(ii) transfers among the Company, any Related Entity, or any
successor, in any capacity of Employee, Director or Consultant, or
(iii) any change in status as long as the individual remains
in the service of the Company or a Related Entity in any capacity
of Employee, Director or Consultant (except as otherwise provided
in the Award Agreement). An approved leave of absence shall include
sick leave, military leave, or any other authorized personal leave.
For purposes of each Incentive Stock Option granted under the Plan,
if such leave exceeds three (3) months, and reemployment upon
expiration of such leave is not guaranteed by statute or contract,
then the Incentive Stock Option shall be treated as a Non-Qualified
Stock Option on the day three (3) months and one (1) day
following the expiration of such three (3) month
period.
(q) “ Corporate
Transaction ” means any of the following transactions,
provided, however, that the Administrator shall determine under
parts (iv) and (v) whether multiple transactions are
related, and its determination shall be final, binding and
conclusive:
(i) a merger or consolidation in
which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state
in which the Company is incorporated;
(ii) the sale, transfer or other
disposition of all or substantially all of the assets of the
Company;
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(iii) the complete liquidation or
dissolution of the Company;
(iv) any reverse merger or series of
related transactions culminating in a reverse merger (including,
but not limited to, a tender offer followed by a reverse merger) in
which the Company is the surviving entity but (A) the shares
of Common Stock outstanding immediately prior to such merger are
converted or exchanged by virtue of the merger into other property,
whether in the form of securities, cash or otherwise, or
(B) in which securities possessing more than forty percent
(40%) of the total combined voting power of the
Company’s outstanding securities are transferred to a person
or persons different from those who held such securities
immediately prior to such merger or the initial transaction
culminating in such merger; or
(v) acquisition in a single or
series of related transactions by any person or related group of
persons (other than the Company or by a Company-sponsored employee
benefit plan) of beneficial ownership (within the meaning of
Rule 13d-3 of the Exchange Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of
the Company’s outstanding securities but excluding any such
transaction or series of related transactions that the
Administrator determines shall not be a Corporate
Transaction.
(r) “ Covered Employee
” means an Employee who is a “covered employee”
under Section 162(m)(3) of the Code.
(s) “ Director ”
means a member of the Board or the board of directors of any
Related Entity.
(t) “ Disability
” means as defined under the long-term disability policy of
the Company or the Related Entity to which the Grantee provides
services regardless of whether the Grantee is covered by such
policy. If the Company or the Related Entity to which the Grantee
provides service does not have a long-term disability plan in
place, “Disability” means that a Grantee is unable to
carry out the responsibilities and functions of the position held
by the Grantee by reason of any medically determinable physical or
mental impairment for a period of not less than ninety
(90) consecutive days. A Grantee will not be considered to
have incurred a Disability unless he or she furnishes proof of such
impairment sufficient to satisfy the Administrator in its
discretion.
(u) “ Employee ”
means any person, including an Officer or Director, who is in the
employ of the Company or any Related Entity, subject to the control
and direction of the Company or any Related Entity as to both the
work to be performed and the manner and method of performance. The
payment of a director’s fee by the Company or a Related
Entity shall not be sufficient to constitute
“employment” by the Company.
(v) “ Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
(w) “ Fair Market Value
” means, as of any date, the value of Common Stock determined
as follows:
(i) If the Common Stock is listed on
one or more established stock exchanges or national market systems,
including without limitation The NASDAQ Global Select Market, The
NASDAQ Global Market or The NASDAQ Capital Market of The NASDAQ
Stock Market LLC, its Fair Market Value shall be the closing sales
price for such stock (or the closing bid, if no sales were
reported) as quoted on the principal exchange or system on which
the Common Stock is listed (as determined by the Administrator) on
the date of determination (or, if no closing sales price or closing
bid was reported on that date, as applicable, on the last trading
date such closing sales price or closing bid was reported), as
reported in The Wall Street Journal or such other source as the
Administrator deems reliable;
(ii) If the Common Stock is
regularly quoted on an automated quotation system (including the
OTC Bulletin Board) or by a recognized securities dealer, its Fair
Market Value shall be the closing sales price for such stock as
quoted on such system or by such securities dealer on the date of
determination, but if selling prices are not reported, the Fair
Market Value of a share of Common Stock shall be the mean between
the high bid and low asked prices for the Common Stock on the date
of
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determination (or, if no such prices
were reported on that date, on the last date such prices were
reported), as reported in The Wall Street Journal or such other
source as the Administrator deems reliable; or
(iii) In the absence of an
established market for the Common Stock of the type described in
(i) and (ii), above, the Fair Market Value thereof shall be
determined by the Administrator in good faith.
(x) “ Grantee ”
means an Employee, Director or Consultant who receives an Award
under the Plan.
(y) “ Incentive Stock
Option ” means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of
the Code
(z) “ Non-Qualified Stock
Option ” means an Option not intended to qualify as an
Incentive Stock Option.
(aa) “ Officer ”
means a person who is an officer of the Company or a Related Entity
within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder.
(bb) “ Option ”
means an option to purchase Shares pursuant to an Award Agreement
granted under the Plan.
(cc) “ Parent ”
means a “parent corporation”, whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(dd) “ Performance-Based
Compensation ” means compensation qualifying as
“performance-based compensation” under
Section 162(m) of the Code.
(ee) “ Plan ”
means this 2007 Stock Incentive Plan.
(ff) “ Related Entity
” means any Parent or Subsidiary of the Company.
(gg) “ Replaced ”
means that pursuant to a Corporate Transaction the Award is
replaced with a comparable stock award or a cash incentive program
of the Company, the successor entity (if applicable) or Parent of
either of them which preserves the compensation element of such
Award existing at the time of the Corporate Transaction and
provides for subsequent payout in accordance with the same (or a
more favorable) vesting schedule applicable to such Award. The
determination of Award comparability shall be made by the
Administrator and its determination shall be final, binding and
conclusive.
(hh) “ Restricted Stock
” means Shares issued under the Plan to the Grantee for such
consideration, if any, and subject to such restrictions on
transfer, rights of first refusal, repurchase provisions,
forfeiture provisions, and other terms and conditions as
established by the Administrator.
(ii) “ Restricted Stock
Units ” means an Award which may be earned in whole or in
part upon the passage of time or the attainment of performance
criteria established by the Administrator and which may be settled
for cash, Shares or other securities or a combination of cash,
Shares or other securities as established by the
Administrator.
(jj) “ Rule 16b-3
” means Rule 16b-3 promulgated under the Exchange Act or
any successor thereto.
(kk) “ SAR ”
means a stock appreciation right entitling the Grantee to Shares or
cash compensation, as established by the Administrator, measured by
appreciation in the value of Common Stock.
(ll) “ Share ”
means a share of the Common Stock.
(mm) “ Subsidiary
” means a “subsidiary corporation”, whether now
or hereafter existing, as defined in Section 424(f) of the
Code.
3. Stock Subject to the Plan
.
(a) Subject to the provisions of
Section 10, below, the maximum aggregate number of Shares
which may be issued pursuant to all Awards is two million six
hundred ninety thousand (2,690,000) Shares, plus
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the number of Shares that remain
available for grants of awards under the Company’s 1998 Stock
Option Plan (the “1998 Plan”) as of the date the Plan
is approved by the Company’s shareholders, plus any Shares
that would otherwise return to the 1998 Plan as a result of
forfeiture, termination or expiration of awards previously granted
under the 1998 Plan (ignoring the termination or expiration of the
1998 Plan for the purpose of determining the number of Shares
available for the Plan); provided, however, that the maximum
aggregate number of Shares that may be issued pursuant to Incentive
Stock Options is two million six hundred ninety thousand
(2,690,000) Shares. Notwithstanding the foregoing, any Shares
issued in connection with Awards other than Options and SARs shall
be counted against the limit set forth herein as two
(2) Shares for every one (1) Share issued in connection
with such Award (and shall be counted as two (2) Shares for
every one (1) Share returned or deemed not have been issued
from the Plan pursuant to Section 3(b) below in connection
with Awards other than Options and SARs). The Shares to be issued
pursuant to Awards may be authorized, but unissued, or reacquired
Common Stock.
(b) Any Shares covered by an Award
(or portion of an Award) which is forfeited, canceled or expires
(whether voluntarily or involuntarily) shall be deemed not to have
been issued for purposes of determining the maximum aggregate
number of Shares which may be issued under the Plan. Shares that
actually have been issued under the Plan pursuant to an Award shall
not be returned to the Plan and shall not become available for
future issuance under the Plan, except that if unvested Shares are
forfeited, or repurchased by the Company at the lower of their
original purchase price or their Fair Market Value at the time of
repurchase, such Shares shall become available for future grant
under the Plan. Notwithstanding anything to the contrary contained
herein: (i) Shares tendered or withheld in payment of an
Option exercise price shall not be returned to the Plan and shall
not become available for future issuance under the Plan;
(ii) Shares withheld by the Company to satisfy any tax
withholding obligation shall not be returned to the Plan and shall
not become available for future issuance under the Plan; and
(iii) all Shares covered by the portion of an SAR that is
exercised (whether or not Shares are actually issued to the Grantee
upon exercise of the SAR) shall be considered issued pursuant to
the Plan.
4. Administration of the Plan
.
(a) Plan Administrator
.
(i) Administration with Respect
to Directors and Officers . With respect to grants of Awards to
Directors or Employees who are also Officers or Directors of the
Company, the Plan shall be administered by (A) the Board or
(B) a Committee designated by the Board, which Committee shall
be constituted in such a manner as to satisfy the Applicable Laws
and to permit such grants and related transactions under the Plan
to be exempt from Section 16(b) of the Exchange Act in
accordance with Rule 16b-3. Once appointed, such Committee
shall continue to serve in its designated capacity until otherwise
directed by the Board.
(ii) Administration With Respect
to Consultants and Other Employees . With respect to grants of
Awards to Employees or Consultants who are neither Directors nor
Officers of the Company, the Plan shall be administered by
(A) the Board or (B) a Committee designated by the Board,
which Committee shall be constituted in such a manner as to satisfy
the Applicable Laws. Once appointed, such Committee shall continue
to serve in its designated capacity until otherwise directed by the
Board. The Board may authorize one or more Officers to grant such
Awards and may limit such authority as the Board determines from
time to time.
(iii) Administration With Respect
to Covered Employees . Notwithstanding the foregoing, grants of
Awards to any Covered Employee intended to qualify as
Performance-Based Compensation shall be made only by a Committee
(or subcommittee of a Committee) which is comprised solely of two
or more Directors eligible to serve on a committee making Awards
qualifying as Performance-Based Compensation. In the case of such
Awards granted to Covered Employees, references to the
“Administrator” or to a “Committee” shall
be deemed to be references to such Committee or
subcommittee.
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(iv) Administration Errors .
In the event an Award is granted in a manner inconsistent with the
provisions of this subsection (a), such Award shall be
presumptively valid as of its grant date to the extent permitted by
the Applicable Laws.
(b) Powers of the
Administrator . Subject to Applicable Laws and the provisions
of the Plan (including any other powers given to the Administrator
hereunder), and except as otherwise provided by the Board, the
Administrator shall have the authority, in its
discretion:
(i) to select the Employees,
Directors and Consultants to whom Awards may be granted from time
to time hereunder;
(ii) to determine whether and to
what extent Awards are granted hereunder;
(iii) to determine the number of
Shares or the amount of other consideration to be covered by each
Award granted hereunder;
(iv) to approve forms of Award
Agreements for use under the Plan;
(v) to determine the
terms
