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Transaction Valuation*
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Amount of Filing Fee**
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$609,366,062.00
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$66,481.84
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Amount Previously Paid: Not applicable.
|
| | Filing Party: Not applicable. | |
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Form or Registration No.: Not applicable.
|
| | Date Filed: Not applicable. | |
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK TIME, AT THE END OF THE DAY OF FRIDAY, MAY 21, 2021, UNLESS THE OFFER IS EXTENDED.
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THE BOARD OF DIRECTORS OF GFN RECOMMENDS THAT YOU TENDER ALL OF YOUR SHARES PURSUANT TO THE OFFER.
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| | | | A-1 | | |
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High
|
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Low
|
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Year Ended December 31, 2018: | | | | | | | | | | | | | |
First Quarter
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| | | $ | 7.50 | | | | | $ | 6.80 | | |
Second Quarter
|
| | | $ | 13.55 | | | | | $ | 7.10 | | |
Third Quarter
|
| | | $ | 15.95 | | | | | $ | 13.10 | | |
Fourth Quarter
|
| | | $ | 16.00 | | | | | $ | 9.03 | | |
Year Ended December 31, 2019: | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 11.16 | | | | | $ | 9.02 | | |
Second Quarter
|
| | | $ | 9.67 | | | | | $ | 7.63 | | |
Third Quarter
|
| | | $ | 10.50 | | | | | $ | 6.98 | | |
Fourth Quarter
|
| | | $ | 11.07 | | | | | $ | 8.13 | | |
Year Ended December 31, 2020: | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 11.18 | | | | | $ | 5.04 | | |
| | |
High
|
| |
Low
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| ||||||
Second Quarter
|
| | | $ | 7.11 | | | | | $ | 4.86 | | |
Third Quarter
|
| | | $ | 7.19 | | | | | $ | 5.80 | | |
Fourth Quarter
|
| | | $ | 9.25 | | | | | $ | 5.83 | | |
| |
Name (Citizenship)
|
| | |
Present Principal Occupation /
Material Positions Held During the Past Five Years |
| |
| |
José B. Alvarez
(United States) |
| | |
Member of the Board of Directors of United Rentals, Inc., principally located at 100 First Stamford Place, Suite 700, Stamford, Connecticut 06902
(2009 – Present)
Senior Lecturer of Business Administration at Harvard Business School, principally located at Soldiers Field, Boston, MA 02163
(2009 – Present)
Member of the Board of Directors of TJX, principally located at 300-400 Value Way, Marlborough, MA 01752
(2020 – Present, 2007 – 2008) |
| |
| |
Dale A. Asplund
(United States) |
| | |
Executive Vice President and Chief Operating Officer of United Rentals, Inc.
(2019 – Present)
Executive Vice President, Business Services and Chief Information Officer of United Rentals, Inc.
(2017 – 2019)
Senior Vice President, Business Services and Chief Information Officer of United Rentals, Inc.
(2012 – 2017) |
| |
| |
Marc A. Bruno
(United States) |
| | |
Chief Operating Officer of the U.S. Food & Facilities for Aramark Corporation, principally located at 2400 Market Street, Philadelphia, PA 19103
(2019 – Present)
Chief Operating Officer, Sports, Leisure, Corrections, Facilities, and K-12 of the U.S. Food & Facilities for Aramark Corporation
(2014 – 2019)
Member of the Board of Directors of United Rentals, Inc.
(2018 – Present) |
| |
| |
Jeffrey J. Fenton
(United States) |
| | |
Senior Vice President, Business Development of United Rentals, Inc.
(2012 – Present) |
| |
| |
Name (Citizenship)
|
| | |
Present Principal Occupation /
Material Positions Held During the Past Five Years |
| |
| | | | | |
Member of the Board of Directors of Steel Connect, Inc., principally located at 2000 Midway Lane, Smyrna, TN 37167
(2010 – Present) |
| |
| |
Matthew J. Flannery
(United States) |
| | |
President and Chief Executive Officer of United Rentals, Inc.
(2019 – Present)
President and Chief Operating Officer of United Rentals, Inc.
(2018 – 2019)
Executive Vice President and Chief Operating Officer of United Rentals, Inc.
(2012 – 2018)
Member of the Board of Directors of United Rentals, Inc.
(2019 – Present) |
| |
| |
Jessica T. Graziano
(United States) |
| | |
Executive Vice President and Chief Financial Officer of United Rentals, Inc.
(2018 – Present)
Senior Vice President, Controller and Principal Accounting Officer of United Rentals, Inc.
(2017 – 2018)
Vice President, Controller and Principal Accounting Officer of United Rentals, Inc.
(2014 – 2017) |
| |
| |
Bobby J. Griffin
(United States) |
| | |
Lead Independent Director of the Board of Directors of United Rentals, Inc.
(2019 – Present)
Member of the Board of Directors of United Rentals, Inc.
(2009 – Present)
Member of the Board of Directors of Hanesbrands Inc., principally located at 1000 E. Hanes Mill Road, Winston-Salem, NC 27105
(2006 – Present)
Member of the Board of Directors of WESCO International, Inc., principally located at 225 West Station Square Drive, Suite 700, Pittsburgh, PA 15219
(2014 – Present)
Member of the Board of Atlas Air Worldwide Holdings, Inc., principally located at 2000 Westchester Avenue, Purchase, NY 10577
(2016 – Present) |
| |
| |
Kim Harris Jones
(United States) |
| | |
Member of the Board of Directors of United Rentals, Inc.
(2018 – Present)
Member of the Board of Directors of Fossil Group, Inc., principally located at 901 S. Central Expy. Richardson, TX 75080
(2019 – Present)Member of the Board of Directors of True Blue Inc., |
| |
| |
Name (Citizenship)
|
| | |
Present Principal Occupation /
Material Positions Held During the Past Five Years |
| |
| | | | | |
principally located at 1015 A Street, Tacoma, WA 98402
(2016 – Present) |
| |
| |
Terri L. Kelly
(United States) |
| | |
Member of the Board of Directors of United Rentals, Inc.
(2018 – Present)
President and Chief Executive Officer of W.L. Gore & Associates, principally located at 555 Paper Mill Road, Newark, DE 19711
(2005 – 2018)
Member of the Supervisory Board of ASML, principally located at De Run 6501, 5504 DR, Veldhoven, The Netherlands
(2018 – Present) |
| |
| |
Michael J. Kneeland
(United States) |
| | |
Chairman of the Board of Directors of United Rentals, Inc.
(2019 – Present)
President and Chief Executive Officer of United Rentals, Inc.
(2008 – 2019)
Member of the Board of Directors of Brinks Home Security, principally located at 1990 Wittington Place, Dallas, TX
(2019 – Present) |
| |
| |
Andrew B. Limoges
(United States) |
| | |
Vice President, Controller and Principal Accounting Officer of United Rentals, Inc.
(2018 – Present)
Director of Finance and Accounting of United Rentals, Inc.
(2017 – 2018)
Group Controller of DMGT US, located at 3 Stamford Landing, 46 Southfield Ave, Stamford, CT 06902
(2016 – 2017) |
| |
| |
Gracia Martore
(United States) |
| | |
Member of the Board of Directors of United Rentals, Inc.
(2017 – Present)
Director of Omnicom Group, Inc., principally located at 280 Park Avenue, New York, NY 10017
(2017 – Present)
Director, President and Chief Executive Officer of TEGNA Inc., principally located at 8350 Broad Street, Suite 2000, Tysons, VA 221012
(2011 – 2017)
Director of WestRock Company, principally located at 1000 Abernathy Road NE, Atlanta, GA 30328
(2015 – Present) |
| |
| |
Filippo Passerini
(United States and Italy) |
| | |
Member of the Board of Directors of United Rentals, Inc.
(2009 – Present)
Operating Executive in U.S. Buyouts at Carlyle Group, principally located at 1001 Pennsylvania Avenue NW, Washington, D.C. 20004
(2015 – 2019) |
| |
| |
Name (Citizenship)
|
| | |
Present Principal Occupation /
Material Positions Held During the Past Five Years |
| |
| | | | | |
Director of Integer Holdings Corporation, principally located at 5830 Granite Parkway, Suite 1150, Plano, TX 75024
(2017 – Present)
Director of ABM Industries, principally located at 551 Fifth Avenue, Suite 300, New York, NY 10176
(2017 – 2020) |
| |
| |
Craig A. Pintoff
(United States) |
| | |
Executive Vice President, Chief Administrative and Legal Officer of United Rentals, Inc.
(2017 – Present)
Senior Vice President, General Counsel and Human Resources of United Rentals, Inc.
(2016 – 2017) |
| |
| |
Donald C. Roof
(United States) |
| | |
Member of the Board of Directors of United Rentals, Inc.
(2012 – Present) |
| |
| |
Shiv Singh
(United States) |
| | |
Member of the Board of Directors of United Rentals, Inc.
(2017 – Present)
Senior Vice President and General Manager at Expedia Group, Inc., principally located at 1111 Expedia Group Way, W. Bellevue, Washington 98119.
(2020 – Present)
Chief Marketing Officer of Eargo, Inc., principally located at 1600 Technology Drive, Suite 6, San Jose, California 95110
(2019 – 2020)
Founder and Chief Executive Officer of Savvy Matters LLC, principally located at 1102 Balboa Avenue, Burlingame, CA 94010
(2018 – Present)
Senior Vice President, Innovation & Strategic Partnerships at Visa Inc., principally located at 900 Metro Center Boulevard, Foster City, California 94404
(2013 – 2018) |
| |
| |
Name (Citizenship)
|
| | |
Present Principal Occupation /
Material Positions Held During the Past Five Years |
| |
| | Dale A. Asplund | | | |
Executive Vice President and Chief Operating Officer of United Rentals (North America), Inc., principally located at 100 First Stamford Place, Suite 700, Stamford, CT 06902
(2019 – Present)
See above
|
| |
| |
Jeffrey J. Fenton
(United States) |
| | |
Senior Vice President, Business Development of United Rentals (North America), Inc.
(2012 – Present)
See above
|
| |
| |
Name (Citizenship)
|
| | |
Present Principal Occupation /
Material Positions Held During the Past Five Years |
| |
| |
Matthew J. Flannery
(United States) |
| | |
President and Chief Executive Officer of United Rentals (North America), Inc.
(2019 – Present)
Member of the Board of Directors of United Rentals (North America), Inc.
(2018 – Present)
See above
|
| |
| |
Jessica T. Graziano
(United States) |
| | |
Executive Vice President and Chief Financial Officer of United Rentals (North America), Inc.
(2018 – Present)
Member of the Board of Directors of United Rentals (North America), Inc.
(2018 – Present)
See above
|
| |
| |
Joli L. Gross
(United States) |
| | |
Senior Vice President, General Counsel and Corporate Secretary of United Rentals (North America), Inc.
(2017 – Present)
Senior Vice President, Deputy General Counsel and Corporate Secretary of United Rentals, Inc.
(2016 – 2017)
Vice President, Deputy General Counsel and Assistant Corporate Secretary of United Rentals, Inc.
(2011 – 2016)
Member of the Board of Directors of United Rentals (North America), Inc.
(2018 – Present) |
| |
| |
Andrew B. Limoges
(United States) |
| | |
Vice President, Controller and Principal Accounting Officer of United Rentals (North America), Inc.
(2018 – Present)
See above
|
| |
| |
Irene Moshouris
(United States) |
| | |
Senior Vice President and Treasurer of United Rentals (North America), Inc.
(2011 – Present)
Member of the Board of Directors of United Rentals (North America), Inc.
(2018 – Present) |
| |
| |
Craig A. Pintoff
(United States) |
| | |
Executive Vice President, Chief Administrative and Legal Officer of United Rentals (North America), Inc.
(2017 – Present)
Member of the Board of Directors of United Rentals (North America), Inc.
(2018 – Present)
See above
|
| |
| |
Name (Citizenship)
|
| | |
Present Principal Occupation /
Material Positions Held During the Past Five Years |
| |
| | Matthew J. Flannery | | | |
President of UR Merger Sub VI Corporation, principally located at 100 First Stamford Place, Suite 700, Stamford, CT 06902
(2021 – Present)
See above
|
| |
| | Jessica T. Graziano | | | |
Vice President and Chief Financial Officer of UR Merger Sub VI Corporation
(2021 – Present)
See above
|
| |
| |
Joli L. Gross
(United States) |
| | |
Vice President & Secretary of UR Merger Sub VI Corporation
(2021 – Present)
Member of the Board of Directors of UR Merger Sub VI Corporation
(2021 – Present)
See above
|
| |
| |
Irene Moshouris
(United States) |
| | |
Vice President & Treasurer of UR Merger Sub VI Corporation
(2021 – Present)
Member of the Board of Directors of UR Merger Sub VI Corporation
(2021 – Present)
See above
|
| |
| |
Craig A. Pintoff
(United States) |
| | |
Vice President, Chief Administrative Officer and Assistant Secretary of UR Merger Sub VI Corporation
(2021 – Present)
Member of the Board of Directors of UR Merger Sub VI Corporation
(2021 – Present)
See above
|
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|
If delivering by hand, express mail, courier
or other expedited service: |
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By mail:
|
|
|
Continental Stock Transfer & Trust Company
Attn: Corporate Actions 1 State Street Plaza, 30th Floor New York, NY 10004 |
| |
Continental Stock Transfer & Trust Company
Attn: Corporate Actions 1 State Street Plaza, 30th Floor New York, NY 10004 |
|
| |
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK TIME, AT THE END OF THE DAY OF FRIDAY, MAY 21, 2021, UNLESS THE OFFER IS EXTENDED.
|
| |
|
If delivering by hand, express mail, courier
or other expedited service: |
| |
By mail:
|
|
|
Continental Stock Transfer & Trust Company
Attn: Corporate Actions 1 State Street Plaza, 30th Floor New York, NY 10004 |
| |
Continental Stock Transfer & Trust Company
Attn: Corporate Actions 1 State Street Plaza, 30th Floor New York, NY 10004 |
|
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DESCRIPTION OF SHARES TENDERED
|
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Name(s) and Address(es) of Registered Holder(s)
(Please Fill in, if Blank, Exactly as Name(s)Appear(s) on Share Certificate(s)) Please make any address correction below |
| | |
Shares Tendered
(Attach additional signed list, if necessary) |
| | ||||||||||||
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□ indicates permanent address change
|
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Share
Certificate Number(s)(1) |
| | |
Total Number
of Shares Represented By Share Certificate(s)(1) |
| | |
Total Number of Shares
Represented by Book entry (Electronic Form) Tendered |
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Total
Number of Shares Tendered(2) |
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DESCRIPTION OF SHARES TENDERED
|
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Name(s) and Address(es) of Registered Holder(s)
(Please Fill in, if Blank, Exactly as Name(s)Appear(s) on Share Certificate(s)) Please make any address correction below |
| | |
Shares Tendered
(Attach additional signed list, if necessary) |
| | ||||||||||||
| |
□ indicates permanent address change
|
| | |
Share
Certificate Number(s)(1) |
| | |
Total Number
of Shares Represented By Share Certificate(s)(1) |
| | |
Total Number of Shares
Represented by Book entry (Electronic Form) Tendered |
| | |
Total
Number of Shares Tendered(2) |
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Total Shares
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(1)
Need not be completed by stockholders tendering by book-entry transfer.
(2)
Unless a lower number of Shares to be tendered is otherwise indicated, it will be assumed that all Shares described above are being tendered. See Instruction 4.
By signing and submitting this Letter of Transmittal you warrant that these Shares will not be sold, including through limit order request, unless properly withdrawn from the Offer.
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Name of Tendering Institution: |
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DTC Account Number: |
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Transaction Code Number: |
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Name(s) of Tendering Stockholder(s): |
|
Window Ticket Number (if any): |
|
Date of Execution of Notice of Guaranteed Delivery: |
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Name of Eligible Institution that Guaranteed Delivery: |
|
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SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6 and 7)
To be completed ONLY if the check for the purchase price of Shares accepted for payment and Share Certificates not tendered or not accepted for payment are to be issued in the name of someone other than the undersigned.
(Please print)
(Including Zip Code)
(Taxpayer Identification or Social Security No.)
(Also Complete IRS Form W-9 Included Herein) |
| |
| |
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6 and 7)
To be completed ONLY if the check for the purchase price of Shares accepted for payment and Share Certificates not tendered or not accepted are to be mailed to someone other than the undersigned or to the undersigned at an address other than that shown above.
(Please print)
(Including Zip Code)
|
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Capacity (full title) (See Instruction 5) |
|
Area Code and Telephone No. |
|
|
If delivering by hand, express mail, courier
or other expedited service: |
| |
By mail:
|
|
|
Continental Stock Transfer & Trust Company
Attn: Corporate Actions 1 State Street Plaza, 30th Floor New York, NY 10004 |
| |
Continental Stock Transfer & Trust Company
Attn: Corporate Actions 1 State Street Plaza, 30th Floor New York, NY 10004 |
|
| |
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
TIME, AT THE END OF THE DAY OF FRIDAY, MAY 21, 2021, UNLESS THE OFFER IS EXTENDED. |
| |
|
If delivering by hand, express mail, courier
or other expedited service: |
| |
By mail:
|
|
|
Continental Stock Transfer & Trust Company
Attn: Corporate Actions 1 State Street Plaza, 30th Floor New York, NY 10004 |
| |
Continental Stock Transfer & Trust Company
Attn: Corporate Actions 1 State Street Plaza, 30th Floor New York, NY 10004 |
|
| |
Number of Shares and Certificate No(s)
(if available)
|
| |
| | ☐ Check here if Shares will be tendered by book-entry transfer. | | |
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Name(s) of Record Holder(s):
|
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(Please type or print)
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(Zip Code)
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(Daytime telephone number)
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| | Notice of Guaranteed Delivery | | |
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Address:
|
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(Zip Code)
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(Authorized Signature)
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(Please type or print)
|
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|
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| |
THE BOARD OF DIRECTORS OF GFN RECOMMENDS THAT STOCKHOLDERS TENDER ALL OF THEIR SHARES PURSUANT TO THE OFFER.
|
| |
| |
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK TIME, AT THE END OF THE DAY OF FRIDAY, MAY 21, 2021, UNLESS THE OFFER IS EXTENDED (SUCH DATE AND TIME, AS IT MAY BE EXTENDED, THE “EXPIRATION DATE”).
|
| |
| |
THE BOARD OF DIRECTORS OF GFN RECOMMENDS THAT YOU TENDER ALL OF YOUR SHARES PURSUANT TO THE OFFER.
|
| |
ACCOUNT NUMBER: |
|
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|
| | | | | |||
| |
(Signature(s))
|
| | ||||||
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(Please Print Name(s))
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| |
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| | ||||||
| |
(Include Zip Code)
|
| | ||||||
| |
|
| | ||||||
| |
|
| |
| |
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK TIME, AT THE END OF THE DAY OF FRIDAY, MAY 21, 2021, UNLESS THE OFFER IS
EXTENDED. |
| |
| |
THE BOARD OF DIRECTORS OF GFN RECOMMENDS THAT YOU TENDER ALL OF YOUR SHARES PURSUANT TO THE OFFER.
|
| |
Exhibit (a)(1)(vii)
![]() |
United Rentals, Inc.
100 First Stamford Place
Suite 700
Stamford, CT 06902
Telephone: 203 622 3131
Fax: 203 622 6080
United Rentals tender offer for General Finance Corporation commences
Stamford, CT– April 26, 2021 — United Rentals, Inc. (NYSE: URI) (“United Rentals”) today announced that its indirect wholly-owned subsidiary, UR Merger Sub VI Corporation, a Delaware corporation (“Merger Sub”), has commenced a cash tender offer to purchase all of the outstanding shares of common stock, par value USD 0.0001 per share, of General Finance Corporation (NASDAQ: GFN) (“General Finance”) for a price of $19.00 per share, net to the holder thereof in cash, without interest, less any applicable withholding of taxes (the “Offer”). The Offer is being made upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 26, 2021, and the related Letter of Transmittal and pursuant to the terms of the previously announced Agreement and Plan of Merger, dated as of April 15, 2021 (the “Merger Agreement”), among United Rentals (North America), Inc. (“URNA”), Merger Sub and General Finance.
The Offer will expire at 12:00 midnight, New York time, at the end of the day of Friday, May 21, 2021, unless extended (the latest time and date at which the Offer will expire, the “Expiration Date”). Any extension of the Offer will be followed by public announcement of the extension by press release or other public announcement no later than 9:00 a.m., New York time, on the next business day after the previously scheduled Expiration Date.
URNA will file today a Tender Offer Statement on Schedule TO with the United States Securities and Exchange Commission (the “SEC”). The Offer to Purchase contained within the Schedule TO sets out the full terms and conditions of the Offer.
General Finance will file today a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC, which includes, among other things, the recommendation of General Finance’s board of directors that General Finance’s stockholders accept the Offer and tender their shares of General Finance common stock pursuant to the Offer.
The Offer is not subject to any financing condition. The Offer is conditioned upon: (i) the number of shares validly tendered (and not properly withdrawn) prior to 12:00 midnight, New York time, at the end of the day of Friday, May 21, 2021 (excluding shares tendered pursuant to guaranteed delivery procedures that were not received prior to the Expiration Time) together with the shares then owned by Merger Sub, representing at least one share more than 50% of the then outstanding Shares; (ii) the expiration or early termination of the statutory waiting period (and any extensions thereof) applicable to the consummation of the transactions contemplated by the Merger Agreement under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and the rules and regulations promulgated thereunder and, if applicable, any contractual waiting periods under any timing agreements under the HSR Act with governmental entities with jurisdiction over enforcement of any applicable antitrust laws applicable to the transactions contemplated by the Merger Agreement, (iii) the receipt by URNA and Merger Sub of the foreign investment approval by Australian foreign investment authorities, (iv) the receipt by URNA and/or Merger Sub of all consents and/or clearances required from the New Zealand Overseas Investment Office and/or the New Zealand Minister of Finance to give effect to the Offer and the Merger, (v) the absence of a revocation or rescission of a confidentiality, non-competition and non-solicitation agreement entered into among URNA, United Rentals and Ronald Valenta, the chairman of the General Finance board of directors; (vi) the absence of a revocation or rescission of the “at-will” employment agreements among certain General Finance executive officers and management personnel with URNA or a subsidiary of URNA and the absence of an indication of intention by such employees to leave in connection with the Merger; and (vii) other customary conditions as described in this Offer to Purchase. Innisfree M&A Incorporated is acting as information agent for Merger Sub in the Offer. Continental Stock Transfer & Trust Company is acting as the depositary and paying agent in the Offer. Requests for documents and questions by stockholders relating to the Offer may be directed to Innisfree M&A Incorporated by telephone at (877) 687-1875 (shareholders toll free) or (212) 750-5833 (banks and brokers).
1
Additional Information
This press release is neither an offer to purchase nor a solicitation of an offer to sell securities. On April 26, 2021, Merger Sub and URNA will file a Tender Offer Statement on Schedule TO with the SEC and General Finance will file a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC, in each case with respect to the Offer. The Tender Offer Statement (including the Offer to Purchase, the related Letter of Transmittal and other offer documents) and the Solicitation/Recommendation Statement contain important information that should be read carefully when they become available and considered before any decision is made with respect to the Offer. Those materials and all other documents filed by, or caused to be filed by, URNA, Merger Sub or General Finance with the SEC will be available at no charge on the SEC’s website at www.sec.gov. The Schedule TO Tender Offer Statement and related materials will be available for free under the “Our Company—Investor Relations—SEC Filings” section of United Rentals’ website at https://unitedrentals.gcs-web.com/sec-filings. The Schedule 14D-9 Solicitation/Recommendation Statement and such other documents will be available for free from General Finance under the “Investor Information—SEC Information” section of General Finance’s website at https://generalfinance.com/sec-information/.
Disclaimer
This press release contains forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995, known as the PSLRA. Forward-looking statements involve significant risks and uncertainties that may cause actual results to differ materially from such forward-looking statements. These statements are based on current plans, estimates and projections, and, therefore, you should not place undue reliance on them. No forward-looking statement, including any such statement concerning the completion and anticipated benefits of the Offer, Merger or other transactions described in this press release (collectively, the “Transactions”), can be guaranteed, and actual results may differ materially from those projected. United Rentals undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise. Forward-looking statements are not historical facts, but rather are based on current expectations, estimates, assumptions and projections about the business and future financial results of the equipment rental industries, and other legal, regulatory and economic developments. We use words such as “anticipates,” “believes,” “plans,” “expects,” “projects,” “future,” “intends,” “may,” “will,” “should,” “could,” “estimates,” “predicts,” “potential,” “continue,” “guidance” and similar expressions to identify these forward-looking statements that are intended to be covered by the safe harbor provisions of the PSLRA. Actual results could differ materially from the results contemplated by these forward-looking statements due to a number of factors, including, but not limited to, those described in the SEC reports filed by United Rentals and General Finance, as well as the possibility that (1) United Rentals may be unable to obtain regulatory approvals required for the Transactions or may be required to accept conditions that could reduce the anticipated benefits of the acquisition as a condition to obtaining regulatory approvals; (2) the length of time necessary to consummate the Transactions may be longer than anticipated; (3) problems may arise in successfully integrating the businesses of United Rentals and General Finance, including, without limitation, problems associated with the potential loss of any key employees of General Finance; (4) the Transactions may involve unexpected costs, including, without limitation, the exposure to any unrecorded liabilities or unidentified issues that we failed to discover during the due diligence investigation of General Finance or that are not covered by insurance, as well as potential unfavorable accounting treatment and unexpected increases in taxes; (5) our business may suffer as a result of uncertainty surrounding the Transactions, any adverse effects on our ability to maintain relationships with customers, employees and suppliers, or the inherent risk associated with entering a geographic area or line of business in which we have no or limited experience; and (6) the industry may be subject to future risks that are described in the “Risk Factors” section of the Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and other documents filed from time to time with the SEC by United Rentals or General Finance. United Rentals gives no assurance that it will achieve its expectations and does not assume any responsibility for the accuracy and completeness of the forward-looking statements. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties that affect the businesses of United Rentals and General Finance described in the “Risk Factors” section of the Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and other documents filed from time to time with the SEC by United Rentals or General Finance. These forward-looking statements speak only as of the date hereof. United Rentals undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise, except as may be required by applicable securities laws. This communication is not intended to be a recommendation to buy, sell or hold securities and does not constitute an offer for the sale of, or the solicitation of an offer to buy securities in any jurisdiction, including the United States. Any such offer will only be made by means of a prospectus or offering memorandum, and in compliance with applicable securities laws.
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About United Rentals
United Rentals, Inc. is the largest equipment rental company in the world. The company has an integrated network of 1,154 rental locations in North America and 11 in Europe. In North America, the company operates in 49 states and every Canadian province. The company’s approximately 18,250 employees serve construction and industrial customers, utilities, municipalities, homeowners and others. The company offers approximately 4,000 classes of equipment for rent with a total original cost of $13.78 billion. United Rentals is a member of the Standard & Poor’s 500 Index, the Barron’s 400 Index and the Russell 3000 Index® and is headquartered in Stamford, Conn. Additional information about United Rentals is available at unitedrentals.com.
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Contact Information:
United Rentals, Inc.
Ted Grace
Office: (203) 618-7122
Cell: (203) 399-8951
Email: tgrace@ur.com
General Finance Corporation
Larry Clark
Financial Profiles, Inc.
Office: (310) 622-8223
Email: lclark@finprofiles.com
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Exhibit 99.(d)(3)
STRICTLY CONFIDENTIAL
03/01/2019
United Rentals, Inc.
100 First Stamford Place Suite 700
Stamford, CT 06902
Attention: | Jeff Fenton |
Senior Vice President – Business Development |
Dear Mr. Fenton:
Confidentiality of Evaluation Materials: In connection with your consideration of a possible transaction involving Project 49er (the "Company") you have requested non-public information ("information") concerning the Company. As a condition to your being furnished with such Information, you agree to treat any Information concerning the Company which is furnished to you by or on behalf of the Company, whether furnished before or after the date of this letter and regardless of the manner in which it is furnished. together with analyses, compilations, studies or other documents or records prepared by you or any of your directors, officer, employees, affiliates, agents or advisors (including, without limitation, attorneys, accountants, consultants, financial advisors and any representatives of your advisors) (collectively, "Representatives") to the extent that such analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from such Information (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The term "Evaluation Material" does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by you or your Representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company or its advisors provided that such source is not known to you to be bound by a confidentiality agreement with the Company or otherwise prohibited from transmitting the information to you by a contractual, legal or fiduciary obligation, (iii) was within your possession prior to its being furnished to you by or on behalf of the Company provided that to your knowledge, the source of such information was not bound by a confidentiality agreement with the Company or otherwise prohibited from transmitting the information to you by a contractual, legal or fiduciary obligation, or (iv) was independently developed by you or your Representatives without reference to the Evaluation Material. Any combination of Information shall not be deemed to be within the foregoing exceptions because individual features of the Information are in the public domain.
Restrictions on Disclosure and Use: You hereby agree that the Evaluation Material will be used solely for the purpose of evaluating or implementing a possible transaction between the Company and you. and that such Evaluation Material will be kept confidential by you and your Representatives; provided, however, that (a) such Evaluation Material may be disclosed to your Representatives who need to know such information for the purpose of evaluating any such possible transaction between the Company and you (it being understood that such Representatives shall have been informed by you of the confidential and proprietary nature of the Evaluation Material, advised of this agreement and shall have an obligation to keep confidential the Evaluation Material), and (b) any disclosure of such Evaluation Material to a third party other than your Representative may be made to which the Company consents in writing prior to disclosure. In any event, you shall be responsible for any breach of this agreement by any of your Representatives and you agree, at your sole expense, to take all reasonable measures (including but not limited to court proceedings) to restrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. You further agree that the Evaluation Material that is in written form shall not be copied or reproduced at any time without the prior written consent of the Company, except for distribution to your Representatives in accordance with and subject to the provisions of this agreement.
In addition, without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any person (i) the existence of this agreement and that the Evaluation Material has been made available to you or your Representatives, (ii) that discussions or negotiations are taking place concerning a possible transaction between the Company and you or (iii) any terms, conditions or other facts with respect to any such possible transaction, including the status thereof. The Company may not, and will direct its Representatives not to, disclose to any person that discussions or negotiations are taking place concerning a possible transaction between you and the Company unless required by law.
In the event that you are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process) to disclose any Evaluation Material, it is agreed that you will provide the Company with prompt notice of any such request or requirement (written if practical) so that the Company may, at its expense, seek an appropriate protective order or waive your compliance with the provisions of this agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, after consultation with the Company and after providing the Company with written opinion of legal counsel to that effect, legally compelled to disclose Evaluation Material, you may disclose only that portion of the Evaluation Material which you are legally compelled to disclose and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to that portion of the Evaluation Material which is being disclosed. In any event, you will not oppose action by the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material.
Non-Solicitation: You agree not to, and will cause your Representatives not to, initiate or maintain contact (except for those contacts made in the ordinary course of business) in connection with a potential transaction between you and the Company with any officer, director or employee of the Company or any other third party with whom the Company has a business relationship (including customers or suppliers) regarding the Company's business, operations, prospects or finances, except with the express written permission of the Company.
For a period of three (3) years from the date of this Agreement (the “Restricted Period”), both you and the Company agree not to, without the prior written consent of the other party, directly or indirectly through any of its subsidiaries or affiliates, solicit to employ or cause to be solicited for employment, any officer or management-level employee who was employed by the other party or any of its subsidiaries or affiliates at any time during the Restricted Period and who (or whose performance) became known to the other party as a result of the potential transaction; provided, however, that the foregoing provision will not prevent either party or its subsidiaries or affiliates from hiring any person (a) who contacts such party in response to a bona fide public advertisement/posting for employment placed by such party or its subsidiaries or affiliates and not specifically targeted at the other party's or its subsidiaries' or affiliates' employees, (b) who has been terminated by the other party or its subsidiaries or affiliates, (c) recruited through normal recruiting processes, or (d) who has not been employed by the other party or its subsidiaries or affiliates during the twelve (12) months preceding any such hiring action by such party or its subsidiaries or affiliates.
It is understood that Oppenheimer & Co. Inc., in its capacity as financial advisor to the Company, will arrange for appropriate contacts for due diligence purposes. All (i) communications regarding this transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings. and (iv) discussions or questions regarding procedures, will be submitted or directed to Oppenheimer & Co. Inc.
Standstill: In consideration of your being furnished the Evaluation Materials and in view of the fact that the Evaluation Material consists and will consist of confidential, non-public and proprietary information. you agree that for a period of three (3) years from the date of this agreement, that, without the prior written consent of the Company, neither you nor any of your affiliates will, directly or indirectly, alone or in concert with others: (i) purchase, offer or agree to purchase, or announce an intention to purchase any securities or assets of the Company or any subsidiary or rights or options to acquire the same; (ii) make, or in any way participate in any “solicitation” of “proxies” to vote or “consents” (as such terms are used in the rules and regulations of the Securities and Exchange Commission), or seek to advise or influence any person with respect to the voting of any voting securities of the Company; (iii) initiate or support any stockholder proposal with respect to the Company; (iv) make any statement or proposal to the board of directors of the Company, any of the Company's Representatives or any of the Company's stockholders regarding, or make any public statements and/or announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any business combination, merger, tender offer, restructuring, recapitalization, or acquisition of the Company's securities or assets, representation on the Company's board of directors, extraordinary transaction involving the Company or its securities, assets or business or any subsidiary or division thereof, or of any successor thereto or any controlling person thereof; (v) seek or propose to influence or control the Company's management, board of directors, policies or affairs; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with any of the foregoing, (viii) take any action that, in the sole judgment of the Company, may require the Company to make a public announcement concerning any of the foregoing, or (ix) encourage any of the foregoing. Notwithstanding the foregoing provisions of this paragraph, the restrictions of this paragraph shall terminate and be of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving all or a controlling portion of the Company's equity securities or all or substantially all of the Company's assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise).
No Warranty: You understand and acknowledge that any and all information contained in the Evaluation Material is being provided without any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, on the part of the Company or Oppenheimer & Co. Inc. You agree that none of the Company, Oppenheimer & Co. Inc. or any of their respective affiliates or representatives shall have any liability to you or any of your Representatives by virtue of this agreement. Solely for the purposes of this paragraph, the term "information" is deemed to include all information furnished by Oppenheimer & Co. Inc. to your or your Representatives and in connection with the proposed transaction, regardless of whether such information is or continues to be subject to the confidentiality provisions hereof. It is understood that the scope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between you and the Company progress to such a point.
Ownership and Return of the Evaluation Material: All Evaluation Material disclosed by the Company shall be and shall remain the property of the Company. In the event that the parties do not proceed with the transaction that is the subject of this letter within a reasonable time or within five days after being so requested by the Company, and subject to (i) applicable law, rule and regulation and your and your Representatives' respective document retention policies and procedures and professional obligations and (ii) your and your Representatives' respective security, disaster recovery and/or internal procedures regarding retention of archival copies of the Confidential Information in archived computer system backup, you shall return or destroy all documents thereof furnished to you by the Company. Subject to (i) or (ii), you will also return to Company or destroy all written material. memoranda. notes, copies, excerpts and other writings or recordings whatsoever prepared by you or your Representatives based upon, containing or otherwise reflecting (in whole or in part) any Evaluation Material. Any destruction of materials shall be verified by you in writing by one of your duly authorized officers. Any Evaluation Material that is not returned or destroyed, including without limitation, any oral Evaluation Material. shall remain subject to the confidentiality obligations set forth in this agreement.
No Obligation: You agree that unless and until a definitive agreement regarding a transaction between the Company and you has been executed, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this agreement except for the matters specifically agreed to herein. For the purposes of this paragraph. the term "definitive agreement" does not include an executed letter of intent of any other preliminary written agreement. nor does it include any written or oral acceptance of an offer or bid by any party hereto. You further acknowledge and agree that the Company reserves the right. in its sole discretion. to reject any and all proposals made by you or any of your Representatives with regard to a transaction between the Company and you. to terminate discussions and negotiations with you or your Representatives at any time and to conduct any process for a transaction involving the Company as it may determine.
Remedies: It is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement and that the Company shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Company. in the event of litigation relating to this agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party or its Representatives have breached this agreement, then such party shall reimburse the other party for its reasonable out of pocket legal fees and expenses actually incurred in connection with such litigation. including any appeals therefrom.
No Waiver: You acknowledge and agree that no failure or delay by the Company or Oppenheimer & Co. inc. in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right. power or privilege hereunder.
Governing Law; Jurisdiction: This agreement shall be governed and construed in accordance with the laws of the State of Delaware. regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. You agree, on behalf of yourself and your Representatives, to submit to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if and only if such state court lacks subject matter jurisdiction, the federal courts of the United States in each case located in the City of Wilmington. Delaware and the County of New Castle to resolve any dispute relating to this agreement and waive any right to move to dismiss or transfer any such action brought in any such court on the basis of any objection to personal jurisdiction or venue.
Securities Law Compliance: Each party hereby acknowledge and agree that: (a) the Evaluation Material may contain or constitute material non-public information concerning the Company and its affiliates: and (b) trading in the Company's or your securities while in possession of material. nonpublic information or communicating that information to any other person who trades in such securities could subject a party to liability under the U.S. federal and state securities laws, and the rules and regulations promulgated thereunder. including Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. Each party hereby agrees that it and its controlled affiliates will not trade in the other party's securities while in possession of material, nonpublic information or at all until such party and its controlled affiliates can do so in compliance with all applicable laws and without breach of this agreement.
No Waiver of Privilege: To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges, or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation) to you or any of your Representatives.
Terms of this agreement control: The terms of this agreement shall control over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database, or similar repository of Evaluation Material to which you or any of your Representatives is granted access in connection with the evaluation, negotiation, or consummation of a transaction with the Company and/or its stockholders, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature. "clicking" on an "I Agree" icon, or other indication of assent to such additional confidentiality conditions, it being understood and agreed that the confidentiality obligations with respect to Evaluation Material are exclusively governed by this agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.
Severability: If any provision of this agreement, or the application thereof shall he held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement and such provision as applied to other persons, places. or circumstances shall remain in full force and effect.
Notices: All notices, requests. consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile, email, or other electronic delivery (with oral or written confirmation of receipt) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set out in this agreement.
Assignment: Neither this agreement nor any of the rights or obligations hereunder may be assigned by any party without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser of the Company or• all or substantially all of the assets of the Company shall be entitled to the benefits of this agreement, whether or not this agreement is assigned to such purchaser.
Entire Agreement: This agreement sets forth the entire understanding and agreement of the parties hereto and supersedes all previous communications, negotiations and agreements, whether oral or written, with respect to the subject matter hereof and may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such agreement.
Term: This agreement shall terminate and he of no further force and effect three (3) years from the date hereof.
This agreement may be executed in two or more counterparts, each of which shall be deemed to be an original. but all of which shall constitute one and the same agreement. Please confirm that the foregoing is in accordance with your understanding of our agreement by signing and returning to us a copy of this letter.
Very truly yours, | ||
OPPENHEIMER & CO. INC. | ||
On behalf of | ||
Project 49er | ||
By: | /s/ Matthew Hudson | |
Matthew Hudson | ||
Managing Director |
Accepted and agreed as of the date first written above: | ||
United Rentals. Inc. | ||
By: | /s/ Jeff Fenton | |
Jeff Fenton | ||
Senior Vice President -- Business Development |
Exhibit 99(d)(4)
EMPLOYMENT AGREEMENT
This Employment Agreement (the “Agreement”) among United RENTALS, INC., UNITED RENTALS (NORTH AMERICA), iNC., both Delaware corporations, each having a principal place of business at 100 First Stamford Place – Suite 700, Stamford, CT 06902 (United Rentals, Inc. and its subsidiaries and other affiliates are referred to collectively as “URI” or the “Company”) and _______ (“Employee” or “you”) is hereby entered into as of April [•], 2021. [Contingent upon the Closing of the Merger (each, as defined below), this Agreement will replace the existing employment arrangement between Employee and [General Finance Corporation][Pac-Van, Inc., an Indiana corporation and wholly owned subsidiary of General Finance Corporation], dated as of [•] (the “Existing Employment Agreement”).]
Recitals:
United Rentals (North America), Inc. (“Parent”), General Finance Corporation (“General Finance”), a Delaware corporation, and UR Merger Sub VI Corporation (“Merger Sub”), a Delaware corporation and wholly owned subsidiary of Parent, have entered into that certain Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), which provides for the merger of Merger Sub with and into General Finance (the “Merger”), with General Finance surviving the Merger, in a cash tender offer to acquire any and all of the outstanding Shares of General Finance in cash, as more fully described in, and pursuant to the terms of, the Merger Agreement. Employee understands and agrees that Employee’s post-employment obligations under this Agreement may be enforced by URI and/or General Finance. Capitalized terms that are used but not defined herein have the meaning set forth in the Merger Agreement.
Employee is a Key Employee, may own Shares or hold certain Company Equity Awards and acknowledges and agrees that, by virtue of the Merger, Employee will receive direct and substantial economic benefit in exchange for the sale, conveyance, transfer, assignment and delivery of all of Employee’s direct ownership interests in General Finance, including the “single-trigger” treatment of Employee’s Company Equity Awards as further described in the letter agreement of even date herewith. Further, in order to induce URI to enter into the Merger Agreement and to induce URI to consummate the Merger, Employee has agreed to enter into this Agreement.
URI engages in the business of renting and selling equipment and merchandise to the commercial and general public, including construction equipment, earthmoving equipment, aerial work platforms, traffic safety equipment, trench safety equipment, pumps, tanks, filtration, power and HVAC equipment, industrial equipment, sanitation equipment, landscaping equipment, home repair equipment, maintenance equipment, contractor supplies, general tools, light equipment and specialty equipment, as well as the buying of companies that engage in such activities, along with the training and computer systems designed, developed and utilized with respect to support any of the foregoing. URI may in the future also engage in other businesses, including, for the avoidance of doubt, the businesses of General Finance following the Closing.
Employee is or will be employed by the Company in a confidential relationship where Employee, in the course of his or her employment with the Company, and in exchange for Employee’s confidentiality obligations, has become and/or will become familiar with and aware of confidential information which was established and maintained at great expense to the Company; this information is Confidential Information and/or a Trade Secret (as defined below) and constitutes valuable goodwill of the Company. The protection of these Trade Secrets and Confidential Information is of critical importance to the Company.
The Company will sustain irreparable harm if Employee should violate the provisions of this Agreement. Monetary damages for such losses would be extremely difficult to calculate and would be inadequate to fully compensate the Company.
NOW, THEREFORE, in consideration for URI to enter into the Merger Agreement and to consummate the Merger contemplated thereby, the “single-trigger” treatment of Company’s Equity Awards, and without limitation of the Company’s employment of Employee on an at-will basis[, and the Company’s agreement to Section 3.1,] as well as the entrustment of customer relationships/goodwill, and the provision of access to the Company’s Trade Secrets and Confidential Information (both as defined below), the Employee acknowledges that sufficient consideration is being granted in exchange for the terms and provisions contained herein, including, but not limited to, the non-compete provisions contained in Section 3 hereof and the assignment provision contained in Section 10(c) hereof. For the mutual promises, terms, covenants and conditions set forth herein and the performance of each, it is hereby agreed as follows:
1. Employment At Will; Full Time, Etc.
(a) | Employee is employed on at-will basis. Employee’s employment may be terminated by the Company or by the Employee, at any time, for any reason or no reason, without notice or cause. |
(b) | During Employee’s employment, Employee shall devote his or her full time and attention and use his or her best efforts to promote and further the business and services of the Company and shall not be engaged in any other business activity pursued for gain, profit or other pecuniary advantage without the prior written consent of the Company. Employee shall faithfully adhere to, execute and fulfill all policies established by the Company. |
(c) | All funds received by Employee on behalf of the Company, if any, shall be held in trust for the Company and shall be delivered to the Company as soon as practicable. Although the Company will reimburse Employee for appropriate and properly-documented expenses that are incurred by Employee on behalf of the Company in accordance with Company policies in effect from time to time, Employee shall not seek reimbursement for, or utilize a Company credit card or funds for, personal or inappropriate expenses at any time. |
(d) | Employee agrees and acknowledges that if Employee is eligible to receive commissions, bonuses or other incentive pay (referred to collectively as “Incentive Compensation”), such Incentive Compensation, if any, shall be calculated in accordance with the applicable Company policies, procedures and/or plans that are in effect at that time. Employee understands and agrees that it is his or her responsibility to review such policies, procedures and/or plans as needed to ensure his or her comprehension. Employee agrees to raise any questions he or she has about such policies, procedures and/or plans with his or her supervisor or the Human Resources department. Employee further agrees and acknowledges that all applicable Company policies, procedures and/or plans may be revoked or amended at the Company’s sole discretion and at any time without advance notice to Employee. |
2. Trade Secrets; Confidentiality and Company Property. During and at all times after Employee’s employment with the Company:
(a) | Employee will not communicate or disclose to any person or entity, without the Company’s prior written consent, any Trade Secrets or other Confidential Information (as defined below), whether prepared by Employee or others; |
(b) | Employee will not, except in the furtherance of the business of the Company, use any Trade Secrets or other Confidential Information in order to solicit, call upon or do business with any person or entity; |
(c) | Employee will not directly or indirectly use any Trade Secrets or other Confidential Information other than as directed by the Company in writing; |
(d) | Employee will not, except in the furtherance of the business of the Company, copy, delete, remove and/or retain any Trade Secrets or other Confidential Information, whether in electronic, paper, or other form, from the premises of the Company, or from Company servers, computers, cellular/mobile phones, smartphones, tablets, or other devices, without the prior written consent of the Company; |
(e) | All products, correspondence, reports, records, charts, customer contact information, advertising materials, designs, plans, manuals, field guides, memoranda, lists and other property compiled or produced by Employee or delivered or made available to Employee by or on behalf of the Company or by its customers (including, but not limited to, customers solicited by the Employee), whether or not Confidential Information, shall be and remain the property of the Company, shall be subject at all times to its direction and control, and shall be returned immediately whenever demanded/requested by the Company; |
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(f) | Upon termination of employment for any reason whatsoever, or upon request at any time, Employee shall, immediately and in no event more than three (3) business days thereafter: (i) turn over to the Company, and not maintain any copy of, all Company property, data, and information, including, but not limited to, any customer names, contact information, or other customer data stored in any Company or personal cellular/mobile phone, smartphone, tablet, personal computers or other electronic device(s) (collectively, “Devices”), as well as backups of any Device stored on any other Device or in any location (“Backups”); (ii) provide to the Company, in writing, all user names, IDs, passwords, pin codes, and encryption or other access/authorization keys/data utilized by Employee with respect to any Company Devices, computers, hardware or services; (iii) comply with all exit interview and/or termination processes utilized by the Company; (iv) promptly deliver to the Company all originals and copies (whether in note, memo or other document form or on/in the Device(s), Backups, USB drive(s), hard drive(s), video, audio, computer tapes, discs, electronic media, cloud-based accounts, other formats now known or hereinafter devised, or otherwise) of all Trade Secrets or other Confidential Information, and all property identified in Section 2(e) above, that is in Employee’s possession, custody or control, whether prepared by Employee or others, including, but not limited to, the information described above in this Section 2(f); (v) tender to the Company all Company property, including but not limited to any Device(s), Backups, USB drive(s), hard drive(s), video, audio, computer tapes, discs, electronic media, cloud-based accounts, or other electronic devices or formats now known or hereinafter devised, on which Employee stored any Confidential Information or Trade Secrets; and (vi) arrange with the Company a safe, secure, and complete removal/deletion of any and all remaining electronic copies of any such data or information, including, but not limited to, the information described above in this Section 2(f); |
(g) | “Trade Secrets” shall mean all information not generally known about the business of the Company, which is subject to reasonable efforts to maintain its secrecy or confidentiality, and from which the Company derives economic value from the fact that the information is not generally known to others who may obtain economic value from its disclosure or use, regardless of whether such information is specifically designated as a trade secret, and regardless of whether such information may be protected as a trade secret under any applicable law. Employee acknowledges that the Company’s Trade Secrets are owned by the Company in Connecticut, and that Employee will access, utilize, and/or obtain such Trade Secrets. |
(h) | “Confidential Information” includes, but is not limited to: |
(i) | business, strategic and marketing plans and forecasts, and the past results of such plans and forecasts; |
(ii) | business, pricing and management methods, as well as the accumulation, compilation and organization of such information; |
(iii) | operations manuals and best practices memoranda; |
(iv) | finances, strategies, systems, research, surveys, plans, reports, recommendations and conclusions; |
(v) | arrangements with, preferences, pricing history, transaction history, identity of internal contacts or other proprietary business information relating to, the Company’s customers, equipment suppliers, manufacturers, financiers, owners or operators, representatives and other persons who have business relationships with the Company or who are prospects for business relationships with the Company; |
(vi) | technical information, work product and know-how; |
(vii) | cost, operating, and other management information systems, and other software and programming developed, maintained and/or utilized by the Company; |
(viii) | the name of any company or business, any part of which is or at any time was a candidate for potential acquisition by the Company, together with all analyses and other information which the Company has generated, compiled or otherwise obtained with respect to such candidate, business or potential acquisition, or with respect to the potential effect of such acquisition on the Company’s business, assets, financial results or prospects; and |
(ix) | the Company’s Trade Secrets (note that some of the information listed above may also be a Trade Secret). |
Employee understands that the Company’s Confidential Information includes not only the individual categories of information identified in this Section 2, but also the compilation and/or aggregation of the Company’s information, which is and has been compiled/aggregated via significant effort and expense and which has value to the Company and to the Company’s employees as used in furtherance of the Company’s business.
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(i) | IMPORTANT NOTICE TO ALL EMPLOYEES UNDER 18 U.S.C. SECTION 1833(B): Although the Company is committed to the protection of its Confidential Information and/or Trade Secrets, Employee should be aware that an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order. |
3. Non-Compete Provisions. The following covenants are made by Employee in partial consideration for URI to enter into the Merger Agreement and to consummate the Merger contemplated thereby, the “single-trigger” treatment of Company’s Equity Awards, and without limitation of the Company’s employment of Employee on an at-will basis[, and the Company’s agreement to Section 3.1,] as well as the entrustment of customer relationships/goodwill, and the provision of access to the Company’s Trade Secrets and Confidential Information. Such covenants were material inducements to the Company in deciding to enter into the Merger Agreement and invest in Employee and giving Employee access to the Company’s Trade Secrets, Confidential Information, customer relationships and goodwill.
(a) | During Employee’s employment by the Company and for a period of 12 months following the termination of his or her employment for any reason whatsoever, whether or not for cause or by resignation, Employee will not, directly or indirectly (whether through affiliates, relatives or otherwise): |
(i) | in any Restricted Area (as hereinafter defined), be employed or retained by any person or entity who or which then competes with the Company in the Restricted Area to any reasonable extent, or directly or indirectly own any interest in any such person or entity or render to it any consulting or other services or any advice, assistance or other accommodation. Employee shall be deemed to be employed or retained in the Restricted Area if Employee has an office in the Restricted Area or if Employee performs any duties or renders any advice in, or with respect to any competitive facility or business activities in, the Restricted Area. A “Restricted Area” means each of: |
(A) | Australia, New Zealand, any state in the United States and any provinces in Canada in which the Company conducts any equipment rental or other equipment-related activity, including portable storage, modular space and liquid containment solutions, it being agreed that each state and province is one unitary market for purposes of the Company’s business; |
(B) | the states of 1) Alabama, 2) Alaska, 3) Arizona, 4) Arkansas, 5) California, 6) Colorado, 7) Connecticut, 8) Delaware, 9) Florida, 10) Georgia, 11) Hawaii, 12) Idaho, 13) Illinois, 14) Indiana, 15) Iowa, 16) Kansas, 17) Kentucky, 18) Louisiana, 19) Maine, 20) Maryland (including the District of Columbia), 21) Massachusetts, 22) Michigan, 23) Minnesota, 24) Mississippi, 25) Missouri, 26) Montana, 27) Nebraska, 28) Nevada, 29) New Hampshire, 30) New Jersey, 31) New Mexico, 32) New York, 33) North Carolina, 34) North Dakota, 35) Ohio, 36) Oklahoma, 37) Oregon, 38) Pennsylvania, 39) Rhode Island, 40) South Carolina, 41) South Dakota, 42) Tennessee, 43) Texas, 44) Utah, 45) Vermont, 46) Virginia, 47) Washington, 48) West Virginia, 49) Wisconsin, and 50) Wyoming; and the Canadian Provinces of 1) New Brunswick, 2) Newfoundland and Labrador, 3) Nova Scotia, 4) Ontario, 5) Prince Edward Island, 6) Quebec, 7) Manitoba, 8) Saskatchewan, 9) Alberta, and 10) British Columbia; |
(C) | a 50 mile radius from any and all Company locations for which Employee performed services, or had management, sales or other responsibilities, at any time during the two year period preceding the termination of his or her employment; |
(D) | the geographic area(s) in which or in relation to which Employee shall have performed any duties, or had management, financial, sales, corporate, or other responsibilities, for the Company during the two year period preceding the termination of his or her employment; and |
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(E) | the geographic area(s) in which or about which Employee had involvement in the development, review, use, presentation, or implementation of Confidential Information during the two year period preceding the termination of his or her employment. |
(ii) | Be employed or retained anywhere in the United States, Australia, Canada or New Zealand by a Similar Entity (as hereinafter defined), or directly or indirectly own any interest in any Similar Entity or render to it any consulting or other services. A “Similar Entity” means each of: |
(A) | each of the following: 1) 1-800-PACK-RAT, 2) Aggreko, 3) Ahern Rentals, 4) ATCO Structures & Logistics, 5) Ausco Modular (Algeco Scotsman), 6) Boxman Containers, 7) BOXX Modular, 8) CAT Rental, 9) Coates Hire, 10) ContainerCo, 11) CSL Containers, 12) Design Space, 13) Eagle Leasing, 14) H & E Equipment, 15) Haulaway Storage Containers, 16) Herc Rentals, 17) Home Depot (rental operations), 18) McGrath RentCorp, 19) Mobile Mini, 20) PODS, 21) Rain For Rent, 22) SCF Group (Simply Containers), 23) Satellite Shelters, 24) Sunstate Equipment, 25) Sunbelt Rentals, 26) Synergy Equipment, 27) Tradecorp Group, 28) Vanguard Modular, 29) WillScott, 30) any company that competes with the Company and is listed on the most recent “RER 100” list, and 31) any affiliate or dealer of any of the foregoing; |
(B) | any entity which at any time during the term of Employee’s employment was a candidate for acquisition by or merger with the Company (provided Employee was aware of the possibility of such acquisition or merger); and |
(C) | any entity which owns or owned any assets or facility which were acquired by the Company (provided Employee was involved in or otherwise related to such acquisition). |
(b) | During his or her employment by the Company and for a period of 12 months immediately following the termination of Employee’s employment for any reason whatsoever, whether or not for cause or by resignation, Employee will not anywhere directly or indirectly (whether as an owner, partner, employee, consultant, broker, contractor or otherwise, and whether personally or through other persons): |
(i) | solicit or accept the business of, call upon, contact, or communicate with any person or entity, or affiliate of any such person or entity, who or which is or was a customer, business prospect or other person who had a business relationship with the Company resulting in and/or for the purpose of providing or obtaining any product or service reasonably deemed competitive with any product or service then offered by the Company; provided, however, that this limitation shall apply only with respect to persons or entities with whom Employee had a business relationship, with whom Employee communicated, with whom Employee transacted business, or about whom Employee had Confidential Information while employed by the Company; |
(ii) | approve, solicit or retain, or discuss the employment or retention (whether as an employee, consultant or otherwise) of any person who was an employee of the Company at any time during the one year period preceding the termination of Employee’s employment by the Company. Nothing in this section restricts employees from engaging in protected activities with other employees concerning their wages, hours, and working conditions as set forth in Section 7 of the National Labor Relations Act; |
(iii) | solicit or encourage any person to leave the employ of the Company; |
(iv) | call upon or assist in the acquisition of any company which was, during the one-year period preceding the termination of Employee’s employment by the Company, the target of possible acquisition by the Company (provided Employee was aware of the possible acquisition); or |
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(v) | own any interest in or be employed by or provide any services to any person or entity which engages in any conduct which is prohibited to Employee under this Section 3(b) (this provision shall not prohibit Employee’s ownership of less than 5% of the outstanding common stock of a publicly-traded company). |
(c) | Before taking any position with any person or entity during the 12 month period following the termination of his or her employment for any reason, with or without cause or by resignation, Employee will give prior written notice to the Company of the name of such person or entity, as well as the assigned location, duties and responsibilities related to the position under consideration by Employee. Employee understands and expressly agrees that the obligation to provide written notice under this Section 3(c) is a material term of this Agreement, and that the failure to provide such notice shall be a material breach of this Agreement, and shall constitute a presumption that any employment about which he or she failed to give notice violates Section 3(a) and/or would necessarily result in a violation of Section 3(b) of this Agreement. Irrespective of whether such notice is given, the Company shall be entitled to advise any person or entity of the provisions of this Agreement, and to correspond and otherwise deal with any person or entity to ensure that the provisions of this Agreement are enforced and duly discharged. Employee acknowledges that Employee has not signed a confidentiality, non-competition or non-solicitation agreement with any former employer that by its terms remains in effect. |
(d) | All time periods in Section 3 of this Agreement shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this Agreement and any time during which there is pending in any court of competent jurisdiction any action (including any appeal from any final judgment) brought by any person, whether or not a party to this Agreement, in which action the Company seeks to enforce the agreements and/or covenants in this Agreement or in which any person contests the validity of such agreements and/or covenants or their enforceability or seeks to avoid their performance or enforcement. |
(e) | Employee understands that the provisions of this Agreement have been carefully designed to restrict his or her activities to the minimum extent that is consistent with law and the Company's legitimate interests. Employee has carefully considered these restrictions, and Employee confirms that they are reasonable in both duration and geographic scope and will not unduly restrict Employee’s ability to obtain a livelihood. Employee has heretofore engaged in businesses other than the business in which Employee will be engaged on behalf of the Company. Employee acknowledges and agrees that Employee has had the opportunity to discuss this Agreement and all of its terms with Employee’s attorney before signing this Agreement. |
(f) | Employee acknowledges that monetary damages will be inadequate and the Company will be irreparably damaged if the provisions of this Agreement are not specifically enforced. Employee agrees that, in the event of a breach or threatened breach of this Agreement, the Company shall be entitled, among other remedies (i) to an injunction temporarily, preliminarily, and/or permanently restraining any violation of this Agreement (without any bond or other security being required) by Employee and by any person or entity to whom Employee provides or proposes to provide any services in violation of this Agreement, (ii) to require Employee to hold in a constructive trust, account for and pay over to the Company all compensation and other benefits which Employee shall derive as a result of any action or omission which is a violation of any provision of this Agreement and (iii) to require Employee to account for and pay over to the Company any net profit earned by the Employee from the exercise and/or vesting, during the 12-month period prior to the termination of his or her employment, of any stock options and/or restricted stock issued to him/her by the Company. |
(g) | The terms and provisions of this Section 3 are intended to be separate and divisible provisions and if, for any reason, any one or more of them is held to be invalid or unenforceable, neither the validity nor the enforceability of any other provision of this Agreement will thereby be affected. The courts enforcing this Agreement shall be entitled to reform or modify the duration, scope or other provision of any restriction contained herein to the extent such restriction would otherwise be unenforceable, and such restriction as reformed/modified shall be enforced. |
3.1 [Severance. Following the Closing, the severance provisions set forth in the Existing Employment Agreement will continue to apply (including, for the avoidance of doubt, the definitions of “Cause” and “Good Reason” set forth therein); provided, however, that Employee agrees by acceptance of this Agreement that Employee’s employment with the Company following Closing will not constitute “Good Reason” by nature of the Company [(a) hiring or employing a [title] senior to Employee unless Employee is promoted to a title or role senior to [title]; or (b)] assignment of duties and responsibilities that are materially beneath those of [title] with [General Finance.][Pac-Van, Inc.]]
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4. Inventions and Intellectual Property. Employee shall promptly disclose to the Company any and all conceptions and ideas for inventions, improvements and valuable discoveries, whether patentable or not, which are conceived or made by Employee, solely or jointly with another, during or after regular hours of employment, during the period of employment or within one year thereafter, and which are related to the business or activities of the Company or which Employee conceives as a result of his or her employment by the Company, and Employee hereby assigns and agrees to assign all Employee’s interests therein to the Company or its nominee. Employee also agrees that all works created by him/her are considered work made for hire and prepared by Employee within the scope of his/her employment by the Company and Employee further agrees to assign, and hereby does assign automatically, all such future work to the Company. Whenever requested to do so by the Company, Employee shall execute any and all applications, assignments or other instruments that the Company shall deem necessary to apply for and obtain any patent or copyright in the United States or any foreign country or to otherwise protect the Company's interest therein. These obligations shall continue beyond the termination of employment with respect to inventions, improvements and valuable discoveries, whether patentable or not, conceived, made or acquired by Employee during the period of employment or within one year thereafter, and shall be binding upon Employee’s assigns, executors, administrators and other legal representatives.
5. Jurisdiction, Arbitration & Attorneys’ Fees.
(a) | Consent to Personal Jurisdiction. Employee hereby agrees that the interpretation and enforcement of the provisions of this Agreement shall be resolved and determined exclusively by the state court sitting in Fairfield County, Connecticut or the federal courts in the District of Connecticut and Employee hereby consents that such courts be granted exclusive jurisdiction for such purpose. Employee hereby acknowledges that, in the performance of his or her duties, Employee will maintain significant contacts with the Company’s corporate offices and/or infrastructure in Connecticut, including, without limitation, telephone and email contacts with corporate personnel, access to corporate databases and other data and intellectual property maintained in Connecticut, required attendance at certain training and/or strategic meetings, and payment of business related travel and entertainment expenses. |
(b) | Waiver of Jury Trial. Employee and the Company hereby waive a trial by jury in all legal disputes brought pursuant to this Agreement. |
(c) | Waiver of Service. Employee agrees to waive formal service of process under any applicable federal or state rules of procedure. Service of process shall be effective when given in the manner provided for notices hereunder. |
(d) | Arbitration of Certain Claims by Employee. |
(i) | Any and all claims by Employee relating to any matter arising during or after the employment of the Employee by Company or in connection with the cessation of said employment shall be resolved exclusively by arbitration conducted by one arbitrator in accordance with the Employment Arbitration Rules and Mediation Procedures established by the American Arbitration Association (AAA). The Company will provide a copy of these Rules to Employee on request. The decision of the arbitrator will be final and binding on both parties. (Note that this arbitration provision shall not apply to any claims by the Company against Employee or any matters within the scope of Section 5(a)). |
(ii) | The claims and disputes to be arbitrated under this Section 5(d) (“Arbitrable Claims”) include, without limitation, disputes or claims arising under (A) federal, state, and local statutory or common law (examples include, but are not limited to, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act, and the Americans with Disabilities Act), (B) the law of contract and (C) the law of tort. |
(iii) | Each Arbitrable Claim shall automatically expire unless Employee begins arbitration for the claim no later than the first anniversary of the day on which the Employee learned or reasonably should have learned that he or she may have such claim. |
(iv) | No Arbitrable Claim may be initiated or maintained on a putative or certified class, collective or multi-party action basis either in a court or in Arbitration. Any Arbitrable Claim purporting to be brought as a putative or certified class, collective or multi-party action basis will be decided under these rules as an individual claim in Arbitration. |
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(v) | No language in this document is intended to limit in any way Employee’s rights under the National Labor Relations Act (“NLRA”), and any claims under the NLRA are specifically excluded from the arbitration provisions described above. |
(e) | Attorneys’ Fees. If Employee breaches any of the covenants set forth in this Agreement, or brings any action challenging this Agreement or its enforcement, Employee agrees to pay all costs (including reasonable attorneys’ fees) incurred by the Company in establishing that breach and/or in otherwise defending or enforcing any of the covenants or provisions of this Agreement. |
6. Suits Against Company.
(a) | Both during and after the term of employment hereunder, Employee covenants that Employee will not bring suit or file counterclaims against the Company, for corporate misconduct (which for this purpose does not mean matters for which Employee has a personal claim against the Company in his or her capacity as an employee), unless both of (i) and (ii) shall have occurred, namely: |
(i) | Employee shall have first made written demand to the Company's Board of Directors to investigate and deal with such misconduct, and |
(ii) | The Board of Directors shall have failed within 45 days after the date of receipt of such demand to establish a Special Litigation Committee, consisting exclusively of outside directors, to investigate and deal with such misconduct. |
(b) | Without limiting the generality of and to further implement the foregoing, Employee irrevocably and unconditionally consents at the option of the Company to the entry of temporary restraining orders and temporary and permanent injunctions (without posting bond or other security) against the filing of any action or counterclaim that is prohibited hereunder. |
(c) | The opinion of the Board of Directors shall be binding and conclusive on the determination of which directors constitute “outside directors,” and the determination of the Special Litigation Committee shall be binding and conclusive on all matters relating to the actual or alleged misconduct which is referred to it as aforesaid. |
7. Cooperation in Proceedings. During and after the termination of Employee’s employment, Employee will cooperate fully at reasonable times with the Company in all litigations, investigations, and/or regulatory proceedings on which the Company seeks Employee’s assistance and as to which Employee has any knowledge or involvement. Without limiting the generality of the foregoing, Employee will testify at such litigations and other proceedings, and will cooperate with counsel to the Company in preparing materials and providing information regarding such matters. Except as required by law and/or related to an investigation by a government agency, Employee will not in any way cooperate or assist any person or entity in any matter which is adverse to the Company. Employee understands that nothing in this Agreement shall limit Employee’s rights under applicable law to provide truthful information to any governmental entity or to file a charge with or participate in an investigation conducted by any governmental entity or from cooperating with any government investigation, making a truthful statement or complaint to law enforcement or a government agency, testifying under oath to law enforcement or a government agency, or from complying with a properly-served and lawfully-issued subpoena or similar order issued by a government agency or court of competent jurisdiction.
8. Acknowledgment. Employee acknowledges that the covenants contained in Sections 2, 3 and 4 of this Agreement are separate from, in addition to, and not in substitution for, the restrictive covenants to which Employee may be subject pursuant to his or her employment agreement, non-compete agreement, restrictive covenants agreement or other agreements with General Finance or any of its subsidiaries or affiliates. The post-employment restricted periods described above shall run simultaneously (and not be added on to) the post-termination restriction periods set forth in such employment or other agreements. Employee further acknowledges that nothing in this Agreement is intended to limit or curtail the covenants in such other agreements.
9. Effectiveness. This Agreement shall become effective as of, and shall be conditioned upon the occurrence of, the Closing. This Agreement will automatically become null and void in the event the Merger Agreement is terminated in accordance with its terms prior to the Closing.
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10. Miscellaneous.
(a) | This Agreement is not a promise of employment. There are no oral representations, understandings or agreements with the Company or any of its officers, directors or employees covering the same subject matter as this Agreement. This written Agreement is the final, complete and exclusive statement and expression of the agreement between the Company and Employee and of all the terms of this Agreement, it cancels and supersedes all prior agreements with respect to the subject matter hereof, and it cannot be modified, varied, contradicted or supplemented by evidence of any prior, contemporaneous or subsequent oral agreement(s), or any prior written agreement(s). Notwithstanding the foregoing, in the case of any Restricted Stock Unit Agreement (“RSU Agreement”) between Employee and the Company, Employee understands that any post-employment obligations contained in such RSU Agreement(s) are independent of and in addition to those contained in this Agreement. Employee also understands and agrees that Employee’s role, responsibilities, and terms of employment may change over time, and that any such change will not affect the validity or enforceability of this Agreement. This written Agreement may not be later modified, varied, contradicted, or supplemented except by a further writing signed by the Company and Employee, and no term of this Agreement may be waived except by a writing signed by the party waiving the benefit of such terms. |
(b) | No waiver by the parties hereto of any default or breach of any term, condition or covenant of this Agreement shall be deemed to be a waiver of any subsequent default or breach of the same or any other term, condition or covenant contained herein. This Agreement is intended, among other things, to supplement the applicable common and/or statutory laws and does not in any way abrogate any of the obligations or duties Employee otherwise owes to the Company. |
(c) | This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective heirs, legal representatives, successors and permitted assigns. Employee may not assign either this Agreement or any of Employee’s rights, interests or obligations hereunder. Employee hereby agrees and acknowledges that the Company may assign any or all of its rights and interest hereunder, including, but not limited to, Employee’s agreements contained in Section 2 and Section 3 hereof, without the consent of Employee, to any person or entity that acquires any of the assets of the Company, or to any affiliate of the Company, or to any entity with which the Company merges or consolidates. |
(d) | Whenever any notice is required hereunder, it shall be given in writing addressed as follows: |
To the Company: | 100 First Stamford Place – Suite 700 | |
Stamford, CT 06902 | ||
Attn: Human Resources Department | ||
To Employee: | To the home address Employee last provided to the Company’s Human Resources department |
Notice shall be deemed effective: (a) five business days after the document is deposited in the U.S. mail (provided it is sent via first class mail, certified, return receipt requested); (b) one business day after the document is delivered to a nationally recognized air courier for next day delivery; and/or (c) upon personal delivery. Either party may change the address for notice by notifying the other party of such change in accordance with this paragraph. Any failure by Employee to update his or her address shall not impact the validity of any Notice, provided it is given in the manner prescribed in this subsection. |
(e) | This Agreement contains independently-enforceable obligations. If any section, provision or clause of this Agreement, or any portion thereof, is held void or unenforceable, the remainder of such section, provision or clause, and all other sections, provisions or clauses of this Agreement, shall remain in full force and effect as if the section, provision or clause determined to be void or unenforceable had not been contained herein. The paragraph headings herein are for reference purposes only and are not intended in any way to describe, interpret, define or limit the extent or intent of this Agreement or any part hereof. |
(f) | All rights and remedies of either party expressly set forth herein are intended to be cumulative and not in limitation of any other right or remedy set forth herein or otherwise available to such party at law or in equity. Notwithstanding the foregoing, in no event shall the Company be liable to Employee for consequential or punitive damages, except as specifically provided in this Agreement. |
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(g) | This Agreement shall in all respects be construed according to the laws of the State of Connecticut, without regard to its conflict of laws principles. |
(h) | This Agreement may be executed digitally, electronically and/or by facsimile, and may be transmitted digitally, electronically, and/or by facsimile, in any number of counterparts, each of which upon execution and delivery shall be considered an original for all purposes; provided, however, all such counterparts shall, together, upon execution and delivery, constitute one and the same instrument. |
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Parties have executed and delivered or have caused this Agreement to be duly executed and delivered as of the date first written above.
UNITED RENTALS, INC. | EMPLOYEE: | ||
BY: | |||
[•] | |||
NAME: | |||
TITLE: | |||
UNITED RENTALS (NORTH AMERICA), INC. | |||
BY: | |||
NAME: | |||
TITLE: |
[Signature Page to Employment Agreement]
Exhibit 99(d)(5)
April [•], 2021
[Employee]
Address on file with the Company
Dear [Employee],
This letter sets forth the agreement made this day of April, 2021 (the “Letter Agreement”), by and between General Finance Corporation (the “Company”), United Rentals (North America), Inc. (“Parent”) and you (“Employee” or “you”), a current employee of the Company or one of its subsidiaries (such employing entity, the “Employer”), regarding the treatment of your outstanding Company Equity Awards in connection with the Agreement and Plan of Merger, dated as of April [•], 2021 (the “Merger Agreement”), by and among Parent, the Company and UR Merger Sub VI Corporation (“Merger Sub”), which provides for the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger, in a cash tender offer to acquire any and all of the outstanding Shares of the Company in cash, as more fully described in, and pursuant to the terms of, the Merger Agreement. Capitalized terms that are used but not defined herein have the meaning set forth in the Merger Agreement.
The Merger Agreement provides for certain payments in connection with the closing of the Merger (the “Closing”), including the “single-trigger” treatment of certain eligible Company Options and awards of Company Restricted Stock, which generally means that any vesting conditions applicable to such Company Equity Awards will lapse, and such Company Options and Company Restricted Stock will be cashed out based on the merger consideration (the “Company Equity Payments”) pursuant to a formula set forth in the Merger Agreement (the “Single-Trigger Treatment”). The Single-Trigger Treatment described above is subject to your continued employment with the Employer through the Closing. You acknowledge and agree that, following the Closing, to the extent you experience a termination for Cause (as defined below) by Employer, Parent, URI or any of their applicable subsidiaries or affiliates [or you resign without Good Reason (as defined below)], Parent shall be entitled, in its sole discretion and/or election, to prompt recoupment and/or repayment of any portion of the Company Equity Payments made to you, reduced by the Net Tax Costs (as defined below), to the extent the applicable Company Options and awards of Company Restricted Stock would not have otherwise vested pursuant to their original vesting schedule as of the date of your termination of employment. For the avoidance of doubt, the foregoing recoupment and/or repayment obligation shall not apply to the extent you experience a termination of employment due to death or Disability (as defined in the Company’s Amended and Restated 2014 Stock Incentive Plan as “Disability” or “Disabled”).
“Net Tax Costs” shall mean the net amount of any federal, foreign, state or local income and employment taxes paid by Employee in respect of the portion of the Company Equity Payments subject to reimbursement, after taking into account any and all available deductions, credits or other offsets allowable to Employee (including without limit, any deductions permitted under the claim of right doctrine), and regardless of whether Employee would be required to amend any prior income or other tax returns.
Solely for purposes of this Letter Agreement, “Cause” shall mean that: (1) Employee is convicted of, or pleads guilty or nolo contendere with respect to, theft, fraud, a crime involving moral turpitude, or a felony under federal or applicable state law; (2) Employee commits any act of personal conduct that gives rise to a material risk of liability under federal or applicable state law for discrimination or sexual or other forms of harassment or other similar liabilities to subordinate employees; (3) Employee engages in conduct that is demonstrably and materially injurious to the Company and each corporation or entity controlled directly or indirectly by the Company (the “Company Group”), or that materially harms the reputation or financial position of the Company Group, unless the conduct in question was undertaken in good faith on an informed basis with due care and with a rational business purpose and based upon the honest belief that such conduct was in the best interest of the Company Group; (4) Employee is found liable in any SEC or other civil or criminal securities law action or entering any cease and desist order with respect to such action (regardless of whether or not he or she admits or denies liability) where the conduct that is the subject of such action is demonstrably and materially injurious to the Company Group; or (5) Employee (i) obstructs or impedes, (ii) endeavors to influence, obstructs or impedes, or (iii) fails to materially cooperate with, any investigation authorized by the Board or any governmental or self-regulatory entity (an “Investigation”) (however, Employee’s failure to waive attorney-client privilege relating to communications with his or her own attorney in connection with an Investigation shall not constitute Cause). For purposes of this Letter Agreement, “Good Reason” has the meaning set forth in Employee’s existing employment agreement with Employer, subject to any waivers or modifications set forth in Employee’s go-forward agreement with Parent, URI or any of their subsidiaries or affiliates.
You acknowledge and agree that this Letter Agreement is fully enforceable in accordance with its terms. However, this Letter Agreement will automatically become null and void in the event the Merger Agreement is terminated in accordance with its terms prior to the Closing, or if your employment with the Employer terminates for any reason prior to the Closing.
This Letter Agreement will be governed by the law of the State of Delaware without regard to conflict of law principles.
This Letter Agreement shall not be assigned in whole or in part by either party hereto without the prior written consent of the other party hereto. This Letter Agreement may be executed in two or more counterparts (including by facsimile, pdf or other electronic transmission), each of which shall be deemed an original, but all of which taken together constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart.
[Remainder of this page intentionally left blank]
Please confirm your acceptance of the foregoing by countersigning below.
Sincerely, | ||
General Finance Corporation | ||
By: | ||
Name: | ||
Title: Authorized Signatory | ||
United Rentals (North America), Inc. | ||
By: | ||
Name: | ||
Title: Authorized Signatory | ||
Accepted and Agreed as of the date hereof | ||
[Employee] |
[Signature Page to Key Employee Side Letter]
Exhibit 99(d)(6)
transaction bonus AGREEMENT
This TRANSACTION BONUS AGREEMENT (this “Agreement”) is made and entered into effective as of April [ ], 2021 (the “Effective Date”) by and between General Finance Corporation, a Delaware corporation (the “Company”) and [ ] (the “Recipient”).
RECITALS:
WHEREAS, concurrently with the execution of this Agreement, the Company is entering into an Agreement and Plan of Merger (the “Merger Agreement”) dated as of the Effective Date by and among the Company, United Rentals (North America), Inc., a Delaware corporation (“Parent”), and UR Merger Sub VI Corporation, a Delaware corporation (“Merger Sub”), pursuant to which Merger Sub shall commence a cash tender offer to acquire any and all of the outstanding shares of Company common stock (the “Shares”) for $19.00 per share (such offer, as may be extended and amended from time to time as permitted under, or required by, the Merger Agreement, the “Offer”) and following the consummation of the Offer, subject to the terms and conditions of the Merger Agreement and in accordance with Section 251(h) of the General Corporation Law of the State of Delaware, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger (the “Transaction”);
WHEREAS, the Company has determined that it is advisable and in the best interests of the Company and its shareholders to reward the Recipient for Recipient’s contributions to making the Transaction possible;
WHEREAS, as an expression of appreciation of Recipient’s services to the Company, as well as the contributions to making the Transaction possible, the Company wishes to reward the Recipient with a bonus, upon the terms and conditions set forth herein; and
NOW, THEREFORE, for and in consideration of the premises and mutual covenants set forth herein, it is hereby agreed as follows:
AGREEMENT
1. | Transaction Bonus Provisions |
(a) Transaction Bonus Amount. Upon the Closing (as defined in the Merger Agreement) of the Transaction, the Recipient shall be entitled to receive a bonus in a single lump sum payment in the amount of $[ ] (the “Transaction Bonus Amount”), to be payable in accordance with the terms and conditions set forth in Section 1(b) below.
(b) Form and Timing of Payment. Subject to and conditioned upon the Recipient’s execution and non-revocation of the Release as described in Section 1(d) hereof, the Transaction Bonus Amount, less applicable withholding and employment taxes, shall be payable to the Recipient by the Company on the Closing Date (as defined in the Merger Agreement) (or, if later, the effective date of the Release).
(c) Forfeiture. Notwithstanding anything to the contrary in this Agreement, the Recipient shall automatically and without notice forfeit any and all rights the Recipient may have in the Transaction Bonus Amount in the event that the Recipient’s Continuous Service with the Company terminates for any reason prior to the Closing Date.
(d) Release. Notwithstanding anything to the contrary herein, any Transaction Bonus Amount due to the Recipient under this Agreement shall be conditioned upon the Recipient’s execution (and no revocation) of a general release of claims, in the form attached hereto as Exhibit A (the “Release”).
2. | Certain Definitions |
(a) “Cause” shall have the equivalent meaning (or the same meaning as “cause” or “for cause”) set forth in any employment, consulting, or other agreement for the performance of services between the Recipient and the Company or, in the absence of any such agreement or any such definition in such agreement, such term shall mean (1) you breach any obligation, duty or agreement under your employment, consulting, or other agreement for the performance of services, which breach is not cured or corrected within 15 days of written notice thereof from the Company; (2) you commit any act of personal dishonesty, fraud, breach of fiduciary duty or trust; (3) you are convicted of, or plead guilty or nolo contendere with respect to, theft, fraud, a crime involving moral turpitude, or a felony under federal or applicable state law; (4) you commit any act of personal conduct that, in the reasonable opinion of the Board of Directors of the Company (the “Board”), gives rise to a material risk of liability under federal or applicable state law for discrimination or sexual or other forms of harassment or other similar liabilities to subordinate employees; (5) you commit continued and repeated substantive violations of specific written directions of the Board or Chief Executive Officer, which directions are consistent with this Agreement and your current position with the Company or one of its subsidiaries, or continued and repeated substantive failure to perform duties assigned by or pursuant to your consulting, or other agreement for the performance of services; provided that no discharge shall be deemed For Cause under this subsection unless you first receive written notice from the Company advising you of the specific acts or omissions alleged to constitute violations of written directions or a material failure to perform your duties, and such violations or material failure continue after you shall have had a reasonable opportunity to correct the acts or omissions so complained of; (6) you engage in conduct that is demonstrably and materially injurious to the Company and each corporation or entity controlled directly or indirectly by the Company (the “Company Group”), or that materially harms the reputation or financial position of the Company Group, unless the conduct in question was undertaken in good faith on an informed basis with due care and with a rational business purpose and based upon the honest belief that such conduct was in the best interest of the Company Group; (7) you are found liable in any Securities and Exchange Commission or other civil or criminal securities law action or entering any cease and desist order with respect to such action (regardless of whether or not you admit or deny liability) where the conduct that is the subject of such action is demonstrably and materially injurious to the Company Group; (8) you (i) obstruct or impede, (ii) endeavor to influence, obstruct or impede, or (iii) fail to materially cooperate with, any investigation authorized by the Board or any governmental or self-regulatory entity (an “Investigation”) (however, your failure to waive attorney-client privilege relating to communications with your own attorney in connection with an Investigation shall not constitute “Cause”); or (9) you made any material misrepresentations (or omissions) in connection with your resume and other documents which may have been provided by you, and oral statements regarding your employment history, education and experience, in determining to enter into your employment, consulting, or other agreement for the performance of services.
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(b) “Continuous Service” shall mean the uninterrupted provision of services to the Company and/or its subsidiaries in any capacity of employee, director, consultant or other service provider. Continuous Service shall not be considered to be interrupted in the case of (i) any approved leave of absence (including, without limitation, sick leave, military leave, vacation or any other personal leave authorized by the Company) or (ii) transfers among the Company or any successor entities, in any capacity of director, employee, consultant or other service provider.
3. | Successors |
(a) This Agreement is personal to the Recipient and, without the prior written consent of the Company, shall not be assignable by the Recipient otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Recipient’s legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon and enforceable against the Company and its successors and assigns including, without limitation, Parent.
4. | Miscellaneous |
(a) The laws of the State of Delaware (without reference to its choice of law provisions) shall govern the validity, interpretation, construction and performance of this Agreement.
(b) All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.
(c) Nothing in this Agreement or in any instrument executed pursuant hereto shall confer upon the Recipient any right to Continuous Service with the Company or shall affect the right of the Company to terminate the Continuous Service of the Recipient at any time with or without Cause.
(d) All payments made pursuant to this Agreement will be subject to withholding of applicable income and employment taxes.
(e) This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
(f) The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
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(g) This Agreement constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof. No future agreements between the Company and Recipient may supersede this Agreement unless they are in writing and specifically mention this Agreement.
(h) It is the intention of both the Company and the Recipient that the benefits and rights to which the Recipient could be entitled pursuant to this Agreement comply with, or fall within an exception to, Section 409A of the Internal Revenue Code of 1986, as amended and the Treasury Regulations and other guidance promulgated or issued thereunder (“Section 409A”), to the extent that the requirements of Section 409A are applicable thereto. To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision will be read, or will be modified (with the mutual consent of the parties, which consent will not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement will comply with Section 409A. For purposes of Section 409A, each payment made under this Agreement will be treated as a separate payment. In no event may Recipient, directly or indirectly, designate the calendar year of payment. Recipient further acknowledges that any tax liability incurred by Recipient under Section 409A of the Code is solely the responsibility of Recipient.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this agreement to be executed in its name on its behalf, all as of the day and year first above written.
RECIPIENT: | ||
[ ] | ||
GENERAL FINANCE CORPORATION | ||
By: | ||
Name: | ||
Title: |
EXHIBIT A
FORM OF RELEASE
GENERAL RELEASE OF CLAIMS
1. [ ] (“Recipient”), for [herself/himself] and [her/his] family, heirs, executors, administrators, legal representatives and their respective successors and assigns, in exchange for the consideration received pursuant to Section 1 of the Transaction Bonus Agreement to which this release is attached as Exhibit A (the “Bonus Agreement”), does hereby release and forever discharge General Finance Corporation, a Delaware corporation (the “Company”), its respective subsidiaries, affiliated companies, successors and assigns, and its and their current or former directors, officers, employees, shareholders or agents in such capacities (collectively with the Company, the “Released Parties”) from any and all actions, causes of action, suits, controversies, claims and demands whatsoever, for or by reason of any matter, cause or thing whatsoever, whether known or unknown including, but not limited to, all claims under any the Fair Labor Standards Act, as amended, 29 U.S.C. §§ 201, et seq.; the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981; the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq.; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.; the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq.; the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, 29 U.S.C. § 621 et seq.; [Maryland Title 20 Article 49B, and any other Maryland County laws;] and any other applicable federal, state, or local statute, regulation, ordinance, or legal requirement in connection with Recipient’s employment or termination thereof, whether for tort, breach of express or implied employment contract, wrongful discharge, intentional infliction of emotional distress, or defamation or injuries incurred on the job or incurred as a result of loss of employment. Recipient acknowledges and agrees that Recipient is unaware of any wrongdoing on the part of the Released Parties including, without limitation, fraud, billing practices, and patient care issues. Recipient acknowledges that the Company encouraged Recipient to consult with an attorney of Recipient’s choosing, and through this General Release of Claims encourages Recipient to consult with Recipient’s attorney with respect to possible claims under the Age Discrimination in Employment Act (“ADEA”) and that Recipient understands that the ADEA is a Federal statute that, among other things, prohibits discrimination on the basis of age in employment and employee benefits and benefit plans. Without limiting the generality of the release provided above, Recipient expressly waives any and all claims under ADEA that Recipient may have as of the date hereof. Recipient further understands that by signing this General Release of Claims Recipient is in fact waiving, releasing and forever giving up any claim under the ADEA as well as all other laws within the scope of this paragraph 1 that may have existed on or prior to the date hereof. Notwithstanding anything in this paragraph 1 to the contrary, this General Release of Claims shall not apply to (i) any actions to enforce rights arising under, or any claim for benefits which may be due Recipient pursuant to, the Bonus Agreement, and (ii) any rights or claims that may arise as a result of events occurring after the date this General Release of Claims is executed.
[Recipient expressly waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of the State of California, and in so doing understands and acknowledges the significance of such specific waiver of Section 1542 that reads as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Recipient expressly waives, relinquishes and forfeits all rights and benefits accorded by the provisions of California Civil Code Section 1542, and furthermore waives any rights that Recipient might have to invoke such provisions now or in the future with respect to the released matters set forth above. Thus, notwithstanding the provisions of Section 1542, and the purpose of implementing a full and complete release and discharge of the claims released by this General Release of Claims, Recipient expressly acknowledges that this General Release of Claims is intended to include in its effect, without limitation, all claims which Recipient does not know or suspect to exist in Recipient’s favor at the time of execution hereof arising out of or relating in any way to the subject matter of the actions referred to herein above and that this General Release of Claims contemplates the extinguishment of any such claims.]1
2. Recipient represents that Recipient has not filed against the Released Parties any complaints, charges, or lawsuits arising out of Recipient’s employment, or any other matter arising on or prior to the date of this General Release of Claims, and covenants and agrees that Recipient will never individually or with any person file, or commence the filing of, any charges, lawsuits, complaints or proceedings with any governmental agency, or against the Released Parties with respect to any of the matters released by Recipient pursuant to paragraph 1 hereof (a “Proceeding”); provided, however, Recipient shall not have relinquished his right to commence a Proceeding to challenge whether Recipient knowingly and voluntarily waived Recipient’s rights under ADEA.
3. Recipient hereby acknowledges that the Company has informed Recipient that Recipient has up to twenty-one (21) days to sign this General Release of Claims and Recipient may knowingly and voluntarily waive that twenty-one (21) day period by signing this General Release of Claims earlier. Recipient also understands that Recipient shall have seven (7) days following the date on which Recipient signs this General Release of Claims within which to revoke it by providing a written notice of Recipient’s revocation to the Company.
4. Recipient acknowledges that this General Release of Claims will be governed by and construed and enforced in accordance with the internal laws of the State of [California][Maryland][Delaware] applicable to contracts made and to be performed entirely within such State.
1 Note to Draft: To be included for California employees.
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5. Recipient acknowledges that Recipient has read this General Release of Claims, that Recipient has had the opportunity to consult with an attorney, and that Recipient understands all of its terms and executes it voluntarily and with full knowledge of its significance and the consequences thereof. In entering into this General Release of Claims, Recipient has not relied upon any representations or statements made by the Company which are not specifically set forth in this General Release of Claims.
6. Recipient acknowledges that Recipient understands the terms and knows the effect of this Agreement and that Recipient signs the same as Recipient’s own free act and deed, aware of the final and binding effect of this General Release of Claims. Recipient specifically acknowledges that Recipient’s waiver of claims against the Released Parties is knowing and voluntary. Recipient further acknowledges that Recipient has consulted with Recipient’s attorney prior to executing this Agreement.
7. This General Release of Claims shall take effect on the eighth (8th) day following Recipient’s execution of this General Release of Claims unless Recipient’s written revocation is delivered to the Company within seven (7) days after such execution.
_________________________________, 2021 | ||
[ ] |
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