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EXHIBIT 10.5
MCGRATH RENTCORP
INDEMNIFICATION AGREEMENT
This Agreement is entered into, effective as of October 1, 1997, between
McGrath RentCorp, a California corporation, and ("Indemnitee").
Whereas, it is essential to McGrath RentCorp to retain and attract, as
directors, officers and other agents, the most capable persons available; and
Whereas, Indemnitee is a director and/or officer or other agent of
McGrath RentCorp; and
Whereas, both McGrath RentCorp and Indemnitee recognize the increased
risk of litigation and other claims currently being asserted against directors,
officers and other agents of corporations; and
Whereas, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued and
effective service to McGrath RentCorp, and in order to induce Indemnitee to
provide services to McGrath RentCorp as a director, officer or other agent,
McGrath RentCorp desires to provide in this Agreement for the indemnification
of, and the advancing of expenses to, Indemnitee to the fullest extent (whether
partial or complete) permitted by law and as set forth in this Agreement and, to
the extent insurance is maintained, for the coverage of Indemnitee under McGrath
RentCorp's directors' and officers' liability insurance policies;
Now, therefore, in consideration of the above premises and of Indemnitee
continuing to serve McGrath RentCorp directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties agree as
follows:
1. CERTAIN DEFINITIONS
As used in this Agreement, the capitalized terms listed below shall have
the meaning ascribed to them as follows:
1.1 "BOARD" means the Board of Directors of McGrath RentCorp.
1.2 A "CHANGE IN CONTROL" shall be deemed to have occurred if:
1.2.1 at any time after the effective date of this Agreement, any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Act of 1934, as amended), other than a trustee or other
fiduciary holding securities under an employee benefit plan of McGrath
RentCorp or a corporation owned directly or indirectly by the
stockholders of McGrath RentCorp in substantially the same proportions
as their ownership of stock of McGrath RentCorp, becomes the "Beneficial
Owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of McGrath RentCorp representing 30% or more
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of the total voting power represented by McGrath RentCorp's then
outstanding Voting Securities; or 1.2.2 during any period of two
consecutive years after the effective date of this Agreement (or if two
years have not elapsed since the effective date of this Agreement, such
shorter period), individuals who at the beginning of such period
constitute the Board and any new director whose election by the Board or
nomination for election by McGrath RentCorp's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in
office, who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
1.2.3 anytime after the effective date of this Agreement, the
stockholders of McGrath RentCorp approve a merger or consolidation of
McGrath RentCorp with any other corporation, other than a merger or
consolidation which results in the Voting Securities of McGrath RentCorp
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of
the surviving entity) at least 80% of the total voting power represented
by the Voting Securities of McGrath RentCorp or such surviving entity
outstanding immediately after such merger or consolidation and such plan
of merger or consolidation is not abandoned or otherwise terminated
before completion; or
1.2.4 anytime after the effective date of this Agreement, the
stockholders of McGrath RentCorp approve a plan of complete liquidation
of McGrath RentCorp or an agreement for the sale or disposition by
McGrath RentCorp (in one transaction or a series of transactions) of all
or substantially all of McGrath RentCorp's assets and such plan or
agreement is not abandoned or otherwise terminated before completion.
1.3 "EXPENSES" means any expense, liability, or loss, including
attorneys' fees, judgments, fines, ERISA excise taxes and penalties, amounts
paid or to be paid in settlement, any interest, assessments, or other charges
imposed thereon, and any federal, state, local, or foreign taxes imposed as a
result of the actual or deemed receipt of any payments under this Agreement,
paid or incurred in connection with investigating, defending, being a witness
in, or participating in (including on appeal), or preparing for any of the
foregoing in, any Proceeding relating to any Indemnifiable Event.
1.4 An "INDEMNIFIABLE EVENT" is any event or occurrence which takes
place either prior to or after the execution of this Agreement, related to the
fact Indemnitee:
1.4.1 is or was a director, an officer or other agent of McGrath
RentCorp; or
1.4.2 while a director, officer or other agent is or was serving
at the request of McGrath RentCorp as a director, officer, employee,
trustee, agent, or fiduciary of another foreign or domestic corporation,
partnership, joint venture, employee benefit plan, trust, or other
enterprise; or
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1.4.3 is or was a director, officer, employee, or agent of a
foreign or domestic corporation which is a predecessor corporation of
McGrath RentCorp or of another enterprise at the request of such
predecessor corporation; and
related to anything done or not done by Indemnitee in any such capacity, whether
or not the basis of the Proceeding is alleged action in an official capacity as
a director, officer, employee, or agent or in any other capacity while serving
as a director, officer, employee, or agent of McGrath RentCorp, as described in
clauses 1.4.1 through 1.4.3 above.
1.5 "INDEPENDENT COUNSEL" is an attorney, law firm or member of a law
firm, experienced in matters of corporate law, selected by McGrath RentCorp and
approved by Indemnitee (which approval shall not be unreasonably withheld), and
who has not otherwise performed services for McGrath RentCorp, Indemnitee or any
other party to the Proceeding giving rise to a claim for indemnification
hereunder (other than in connection with other indemnification matters) within
the last five years; provided, however, Independent Counsel shall not include
any person or entity who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either
McGrath RentCorp or Indemnitee in an action to determine Indemnitee's rights
under this Agreement.
1.6 A "PROCEEDING" is any threatened, pending, or completed action,
suit, or proceeding, or any inquiry, hearing, or investigation, whether
conducted by McGrath RentCorp or any other party, Indemnitee in good faith
believes might lead to the institution of any such action, suit, or proceeding,
whether civil, criminal, administrative, investigative or other.
1.7 The "REVIEWING PARTY" is any appropriate person or body consisting
of a member or members of the Board or any other person or body appointed by the
Board, none of which is a party to the particular Proceeding with respect to
which Indemnitee is seeking indemnification; provided, however, after a Change
in Control (other than a Change in Control approved by a majority of directors
on the Board who were directors immediately prior to such Change in Control),
the Reviewing Party shall be Independent Counsel.
1.8 "VOTING SECURITIES" are any securities of McGrath RentCorp which
vote generally in the election of directors.
2. AGREEMENT TO INDEMNIFY
2.1 GENERAL AGREEMENT.
2.1.1 In the event Indemnitee was, is, or becomes a party to, or
witness or other participant in, or is threatened to be made a party to, or
witness or other participant in, a Proceeding by reason of (or arising in part
out of) an Indemnifiable Event, McGrath RentCorp shall indemnify Indemnitee from
and against any and all Expenses to the fullest extent permitted by law, as the
same exists or may hereafter be amended or interpreted (but in the case of any
such amendment or interpretation, only to the extent such amendment or
interpretation permits McGrath RentCorp to provide broader indemnification
rights than were permitted prior thereto).
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2.1.2 The rights to receive indemnification and the advancement
of Expenses under this Agreement are not exclusive of any other rights to which
Indemnitee may be entitled or subsequently entitled under any statute, McGrath
RentCorp's Articles of Incorporation or Bylaws, by vote of the shareholders or
the Board, or otherwise. To the extent a change in applicable law (whether by
statute or judicial decision) or the Bylaws permits greater indemnification than
is currently provided for an Indemnifiable Event, it is the intent of the
parties that Indemnitee shall be entitled to such greater indemnification under
this Agreement.
2.2 PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by McGrath RentCorp for some or a
portion of Expenses, but not, however, for the total amount thereof, McGrath
RentCorp shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.
2.3 PROHIBITED INDEMNIFICATION. Subject only to Section 2.4 below, if
applicable, no indemnification nor Expense Advance pursuant to this Agreement
shall be paid by McGrath RentCorp:
2.3.1 In connection with any Proceeding initiated by Indemnitee
against McGrath RentCorp or any director or officer of McGrath RentCorp
unless: (a) McGrath RentCorp has joined in, or the Board has consented
to, the initiation of such Proceeding; (b) the Proceeding is one to
enforce indemnification rights under Section 6; or (c) the Proceeding is
instituted after a Change in Control and Independent Counsel has
approved its initiation;
2.3.2 On account of any Proceeding in which judgment is rendered
against Indemnitee for an accounting of profits made from the purchase
or sale by Indemnitee of securities of McGrath RentCorp pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of any federal, state, or local laws;
2.3.3 To the extent Indemnitee settles or otherwise disposes of a
Proceeding or causes the settlement or disposal of a Proceeding without
McGrath RentCorp's express prior written consent (which shall not be
unreasonably withheld) unless Indemnitee receives court approval for
such settlement or other disposition where McGrath RentCorp had the
opportunity to oppose Indemnitee's request for such court approval or
the settlement is approved by Independent Counsel;
2.3.4 With regard to any judicial award if McGrath RentCorp was
not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action unless McGrath RentCorp's
participation in such Proceeding was barred by this Agreement or the
court in such Proceeding; nor
2.3.5 For any acts, omissions, transactions or circumstances for
which indemnification is prohibited by applicable state or federal law.
For the convenience of Indemnitee, copies of Sections 204(a) and Section 317 of
the California Corporations Code, the principal provisions which limit
Indemnitee's right to indemnification, are provided to Indemnitee with this
Agreement. Indemnitee is cautioned that indemnification may be
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further limited by any changes to such laws or any other applicable law. McGrath
RentCorp IS NOT OBLIGATED TO NOTIFY INDEMNITEE OF ANY SUCH CHANGES; further,
McGrath RentCorp and Indemnitee are advised that the Securities and Exchange
Commission believes indemnification for liabilities arising under federal
securities laws is against public policy and is, therefore, unenforceable.
2.4 MANDATORY INDEMNIFICATION. Notwithstanding any other provision of
this Agreement, to the extent Indemnitee has been successful on the merits
(within the meaning of Section 317(d) of the California Corporations Code) in
defense of any Proceeding relating in whole or in part to an Indemnifiable Event
or in defense of any issue or matter therein, Indemnitee shall be indemnified
against all Expenses incurred in connection therewith.
3. EXPENSE ADVANCES
3.1 ADVANCE OF EXPENSES TO INDEMNITEE. Expenses incurred by Indemnitee
in any Proceeding for which indemnification may be sought under this Agreement
shall be advanced by McGrath RentCorp to Indemnitee within 20 days after receipt
by McGrath RentCorp of a statement or statements from Indemnitee requesting such
advance and reasonably evidencing the Expenses incurred by Indemnitee (an
"Expense Advance"). Any dispute as to whether and to what extent Indemnitee
shall be entitled to an Expense Advance shall be determined by the Reviewing
Party upon submission by Indemnitee or McGrath RentCorp, and the provisions of
Sections 6.2 through 6.4 below shall apply.
3.2 REPAYMENT OF EXPENSES BY INDEMNITEE. If it is ultimately determined
that Indemnitee is not entitled to be indemnified by McGrath RentCorp,
Indemnitee hereby agrees to repay any amounts advanced by McGrath RentCorp under
Section 3.1 above. Indemnitee agrees to execute any further agreements regarding
the repayment of Expenses as McGrath RentCorp may reasonably request prior to
receiving any such advance. Ultimate determination as to whether or not
Indemnitee is entitled to be indemnified shall be made in accordance with
Section 6 below.
4. INDEPENDENT COUNSEL; THE REVIEWING PARTY
4.1 WRITTEN OPINIONS. Any opinion required in this Agreement to be given
by the Reviewing Party or by Independent Counsel shall be given in writing to
McGrath RentCorp and Indemnitee.
4.2 EXPENSES OF INDEPENDENT COUNSEL. McGrath RentCorp agrees to bear the
reasonable fees and expenses of Independent Counsel, irrespective of the
determination as to Indemnitee's entitlement to indemnification. McGrath
RentCorp further agrees to indemnify such counsel fully against any and all
expenses (including attorneys' fees), claims, liabilities, losses and damages
arising out of or relating to this Agreement or the engagement of such
Independent Counsel pursuant to this Agreement.
5. NOTIFICATION AND DEFENSE OF PROCEEDING
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5.1 NOTICE OF CLAIM. Indemnitee shall give written notice to McGrath
RentCorp promptly after Indemnitee has actual knowledge of any Proceeding as to
which indemnity may be sought under this Agreement. The failure of Indemnitee to
give notice, as provided in this Section 5.1, shall not relieve McGrath RentCorp
of its obligations to provide indemnification under this Agreement; however, the
amounts to which Indemnitee may be indemnified shall be reduced to the extent
McGrath RentCorp may have been prejudiced by such failure.
5.2 DEFENSE. With respect to any Proceeding, McGrath RentCorp will be
entitled to participate in the Proceeding at its own expense. Except as
otherwise provided below, to the extent McGrath RentCorp so desires, it may
assume the defense of any Proceeding with counsel reasonably satisfactory to
Indemnitee. However, McGrath RentCorp shall not be entitled to assume the
defense of any Proceeding (1) brought by McGrath RentCorp, or (2) as to which
Indemnitee has reasonably determined there may be a conflict of interest between
Indemnitee and McGrath RentCorp in the defense of the Proceeding and Indemnitee
does in fact assume and conduct the defense.
5.2.1 If McGrath RentCorp assumes the defense, Indemnitee shall
furnish such information regarding Indemnitee or the Proceeding in question, as
McGrath RentCorp may reasonably request and as may be required in connection
with the defense or settlement of such Proceeding and shall fully cooperate with
McGrath RentCorp in every other respect. Except as provided in Section 5.3
below, if McGrath RentCorp assumes the defense of the Proceeding, McGrath
RentCorp shall take all necessary steps in good faith to defend, settle or
otherwise dispose of the Proceeding.
5.2.2 After notice from McGrath RentCorp to Indemnitee of its
election to assume the defense of any Proceeding, McGrath RentCorp will not be
liable to Indemnitee under this Agreement or otherwise for any Expenses
subsequently incurred by Indemnitee in connection with the defense of such
Proceeding other than reasonable costs of investigation or as otherwise provided
in clauses (i) through (iv) below. Indemnitee shall have the right to employ
Indemnitee's own counsel in such Proceeding, but all Expenses related thereto
incurred after notice from McGrath RentCorp of its assumption of the defense
shall be at Indemnitee's expense, unless: (i) the employment of counsel by
Indemnitee has been authorized by McGrath RentCorp; (ii) Indemnitee has
reasonably determined there may be a conflict of interest between Indemnitee and
McGrath RentCorp in the defense of the Proceeding, but Indemnitee does not, in
fact, assume and conduct the defense; (iii) after a Change in Control, the
employment of counsel by Indemnitee has been approved by Independent Counsel; or
(iv) McGrath RentCorp shall not, in fact, assume and conduct the defense of such
Proceeding.
5.2.3 Any Expenses incurred by McGrath RentCorp in defense of the
Proceeding under this Section 5.2 (except in a situation described in clause
(i), (ii) or (iv) of Section 5.2.2.) shall be considered Expenses advanced by
McGrath RentCorp to Indemnitee under Section 3 above.
5.3 LIMITATION ON MCGRATH RENTCORP'S DISPOSITION OF ANY PROCEEDING.
McGrath RentCorp may consent to a settlement or other disposition of all or any
part of any Proceeding which McGrath RentCorp is defending under Section 5.2
above without first obtaining the written
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consent of Indemnitee, provided such settlement or other disposition does not
cause Indemnitee to lose any material right to indemnification under this
Agreement.
6. INDEMNIFICATION PROCESS AND APPEAL
6.1 INITIAL REQUEST AND DETERMINATION.
6.1.1 To obtain indemnification under this Agreement, upon final
resolution of the Proceeding for which indemnity is claimed hereunder,
Indemnitee shall submit to McGrath RentCorp a written request for
indemnification, including such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification. A determination as to
whether and to what extent the requested indemnification is proper shall be made
by the Reviewing Party within sixty (60) days after receipt of such written
request.
6.1.2 McGrath RentCorp may initiate a determination from the
Reviewing Party as to whether and to what extent Indemnitee is entitled to
indemnification at any time after final resolution of the Proceeding for which
indemnity is claimed hereunder, subject to Indemnitee's rights to require such
determination within a 60-day period.
6.1.3 Indemnitee shall cooperate with the Reviewing Party making
the determination with respect to Indemnitee's entitlement to indemnification,
including providing to such person(s) or entity any documentation or information
which is not privileged or otherwise protected from disclosure and which is
reasonably available to Indemnitee and reasonably necessary for such
determination. All reasonable Expenses incurred by Indemnitee in so cooperating
with the person(s) or entity making such determination shall be borne by McGrath
RentCorp, irrespective of the determination as to Indemnitee's entitlement to
indemnification.
6.2 SUIT TO ENFORCE RIGHTS. Regardless of any action or inaction by the
Reviewing Party, if Indemnitee has not received advancement of Expenses, as
described in Section 3 above, or full indemnification within sixty days after
making a demand in accordance with Section 6.1 above, Indemnitee shall have the
right to enforce his indemnification rights under this Agreement by commencing
litigation in any court in the State of California having subject matter
jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any determination by the Reviewing
Party or any aspect thereof. Likewise, McGrath RentCorp may seek an initial
determination by the court or challenge any determination by the Reviewing Party
in the manner set forth above. McGrath RentCorp and Indemnitee each hereby
consent to service of process and to appear in any such proceeding. Any
determination by the Reviewing Party not challenged by Indemnitee or McGrath
RentCorp through legal action within two years after final resolution of the
Proceeding shall be binding on McGrath RentCorp and Indemnitee. The remedy
provided for in this Section 6 shall be in addition to any other remedies
available to Indemnitee or McGrath RentCorp in law or equity.
6.3 DEFENSE TO INDEMNIFICATION, BURDEN OF PROOF, PRESUMPTIONS AND
EQUITABLE RELIEF.
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6.3.1 It shall be a defense to any action brought by Indemnitee
or McGrath RentCorp concerning enforceability of this Agreement that it is not
permissible under applicable law for McGrath RentCorp to indemnify Indemnitee
for the amount claimed.
6.3.2 In connection with any such action or any determination by
the Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proving such a defense or determination
shall be on McGrath RentCorp.
6.3.3 Neither the failure of the Reviewing Party or McGrath
RentCorp (including its Board, Independent Counsel, or its stockholders) to have
made a determination prior to the commencement of such action by Indemnitee that
indemnification of the claimant is proper under the circumstances because he has
met the standard of conduct set forth in applicable law, nor an actual
determination by the Reviewing Party or McGrath RentCorp (including its Board,
Independent Counsel, or its stockholders) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption Indemnitee has not met the applicable standard of conduct.
6.3.4 For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement (whether with
or without court approval), conviction, or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined indemnification is not permitted by applicable law.
6.3.5 McGrath RentCorp agrees that its failure to make
indemnification payments or Expense Advances to Indemnitee shall cause
irreparable damage to Indemnitee, the exact amount of which is impossible to
ascertain, and for this reason agrees that Indemnitee shall be entitled to such
injunctive or other equitable relief as shall be necessary to adequately provide
for such reasonably anticipated payments, said right to be in addition to all
other rights or remedies available to Indemnitee hereunder.
6.4 INDEMNIFICATION FOR EXPENSES INCURRED IN ENFORCING RIGHTS. McGrath
RentCorp shall indemnify Indemnitee against any and all Expenses incurred by
Indemnitee in connection with any claim asserted against or action brought by
Indemnitee against McGrath RentCorp for:
6.4.1 indemnification of Expenses or payment of Expense Advances
by McGrath RentCorp under this Agreement or any other agreement or under
applicable law or McGrath RentCorp's Articles of Incorporation or Bylaws
now or hereafter in effect relating to indemnification for Indemnifiable
Events; or
6.4.2 recovery under directors' and officers' liability insurance
policies maintained by McGrath RentCorp;
provided, however, McGrath RentCorp shall be obligated to so indemnify
Indemnitee only if Indemnitee's claim or action results in the payment of all or
part of the indemnification of Expenses, payment of Expense Advances, or
recovery under insurance policies sought by Indemnitee.
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7. INSURANCE; SUBROGATION.
7.1 LIABILITY INSURANCE. To the extent McGrath RentCorp maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for any
Company director or officer.
7.2 NO DUPLICATION OF PAYMENTS. McGrath RentCorp shall not be liable
under this Agreement to make any payment in connection with any claim made
against Indemnitee to the extent Indemnitee has otherwise received payment
(under any insurance policy, Bylaw, or otherwise) of the amounts otherwise
indemnifiable hereunder.
7.3 SUBROGATION. In the event of payment under this Agreement, McGrath
RentCorp shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable McGrath RentCorp effectively to bring suit
to enforce such rights.
8. STANDARD PROVISIONS.
8.1 CONTINUING COVERAGE. The indemnification provided under this
Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified capacity pertaining to an Indemnifiable Event
even though Indemnitee may have ceased to serve in such capacity at the time of
any Proceeding.
8.2 REMEDIES CUMULATIVE. The rights and remedies provided in this
Agreement and by law shall be cumulative and the exercise of any particular
right or remedy shall not preclude the exercise of any other right or remedy in
addition to, or as an alternative of, such right or remedy.
8.3 NOTICES. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been fully
given (i) on the date of service if served personally, (ii) on the date of
transmission if sent by facsimile transmission with printed proof of electronic
receipt, (iii) on the date of delivery if delivered by a courier service with
proof of delivery, or (iv) on the third business day after mailing if mailed by
first class mail, certified - return receipt requested, postage prepaid, to the
following addresses:
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If to McGrath RentCorp, then to: McGrath RentCorp
5700 Las Positas Road
Livermore, CA 94550
Attn: President
Fax: 1-510-453-3200
With a copy to: Christopher Ream, Esq.
1717 Embarcadero Road
Palo Alto, CA 94303
Fax: 1-650-857-1288
If to Indemnitee, then to: ______________________
c/o McGrath RentCorp
5700 Las Positas Road
Livermore, CA 94550
Fax: 1-510-453-3200
Any party hereto may change its address set forth above for notices by giving
notice to the other party hereto in accordance with the terms of this Section.
8.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors (including any direct or indirect successor by purchase,
merger, consolidation, or otherwise to all or substantially all of the business
and/or assets of McGrath RentCorp), assigns, spouses, heirs, and personal and
legal representatives. McGrath RentCorp shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation, or otherwise) to
all or substantially all of the business and/or assets of McGrath RentCorp
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that McGrath RentCorp would be required to perform if no such
succession had taken place. This Agreement may not be assigned without the prior
written consent of the other parties hereto, which consent shall not be
unreasonably withheld.
8.5 ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Agreement constitutes
the entire agreement between the parties pertaining to the subject matter
contained herein and supersedes all prior and contemporaneous agreements,
representations and understandings of the parties. No supplement, modification
or amendment to this Agreement shall be binding unless executed in writing by
the parties charged. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing the party making the waiver.
8.6 CONSTRUCTION.
8.6.1 The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
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8.6.2 A reference herein to any section shall be deemed to
include a reference to every section the number of which begins with the number
of the section specifically referred to (e.g., a reference to Section 1.2
includes a reference to Sections 1.2, 1.2.1, 1.2.2, 1.2.3 and 1.2.4).
8.6.3 Any reference in this Agreement to the indemnity provisions
of the Bylaws, the California Corporations Code or to any applicable law shall
refer to such provisions as they shall be amended from time to time or to any
successor provision, except that any change in McGrath RentCorp's Articles of
Incorporation or Bylaws shall only apply with respect to Indemnifiable Events
occurring subsequent to such change.
8.6.4 Any ambiguous terms in this Agreement will not be construed
against McGrath RentCorp for drafting this Agreement.
8.7 APPLICABLE LAW. The rights and obligations under this Agreement
shall be governed by, and construed in accordance with, the laws of the State of
California applicable to contracts between California residents made and to be
performed entirely within such State.
8.8 SEVERABILITY.
8.8.1 Any provision of this Agreement, which is prohibited or
unenforceable in any jurisdiction, shall be ineffective in such jurisdiction to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.8.2 In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, the meaning of such provision shall be construed (to the extent
feasible) so as to render the provisions valid and enforceable, and if no
feasible construction would save the provision, its invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement; rather
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
8.9 LEGAL ADVICE. INDEMNITEE IS AWARE THAT THIS AGREEMENT WAS PREPARED
BY COUNSEL FOR MCGRATH RENTCORP. INDEMNITEE IS ADVISED TO SEEK INDEPENDENT
COUNSEL TO REVIEW THIS AGREEMENT ON HIS BEHALF PRIOR TO THE EXECUTION OF THIS
AGREEMENT.
In Witness Whereof, this Agreement has been entered into as of the date
first written above.
MCGRATH RENTCORP
by
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[Indemnitee] Dennis C. Kakures, President
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