Exhibit 10.11
McGRATH RENTCORP
EMPLOYEE STOCK OWNERSHIP TRUST AGREEMENT
McGRATH RENTCORP
EMPLOYEE STOCK OWNERSHIP TRUST AGREEMENT
CONTENTS
Paragraph Page
--------- ----
A. The Trust Assets ................................................... 2
B. Investment ......................................................... 2
C. Trustee's Powers ................................................... 3
D. Voting Company Stock ............................................... 3
E. Nominees ........................................................... 3
F. Records ............................................................ 4
G. Reports ............................................................ 4
H. Distributions ...................................................... 4
I. Signatures ......................................................... 4
J. Expenses ........................................................... 5
K. Liability of Trustee ............................................... 5
L. Amendment and Termination .......................................... 5
M. Irrevocability ..................................................... 5
N. Resignation or Removal of Trustee .................................. 6
O. Definition ......................................................... 6
P. Miscellaneous ...................................................... 6
Q. Acceptance ......................................................... 6
McGRATH RENTCORP
EMPLOYEE STOCK OWNERSHIP TRUST AGREEMENT
THIS AGREEMENT, between McGrath Rentcorp, hereinafter referred to as
"Company," and Bank of California, N.A., hereinafter referred to as "Trustee,"
originally effective as of January 1, 1985, and amended and herein restated to
be effective as of January 1, 1989 (except that provisions which are required to
be effective before this date in accordance with the Tax Reform Act of 1986 are
hereby generally applicable to the Plan Years beginning after 1988, unless an
earlier or later effective date is required pursuant to a statute or Treasury
Regulation or as stated in the Plan document),
W I T N E S S E T H:
WHEREAS, it is the policy of the Company to so finance and conduct its
operations as to enable its employees and the employees of any participating
affiliates to acquire through an Employee Stock Ownership Plan equity ownership
in the Company; and
WHEREAS, the Company has restated the "McGrath Rentcorp Employee Stock
Ownership Plan," hereinafter referred to as the "Plan," effective as of January
1, 1989; as an amendment and restatement of the Company's prior Employee Stock
Ownership Plan; (except that provisions which are required to be effective
before this date in accordance with the Tax Reform Act of 1986 are hereby
generally applicable to the Plan Years beginning after 1988, unless an earlier
or later effective date is required pursuant to a statute or Treasury Regulation
or as stated in the Plan document); and
WHEREAS, the Company has designated the Plan and this Trust as
constituting part of a plan intended to qualify under Section 401(a) of the
Internal Revenue Code (hereinafter referred to as the "Code");
NOW THEREFORE, the parties hereto do hereby restate the McGrath Rentcorp
Employee Stock Ownership Trust and agree the following shall constitute the
Trust Agreement:
A. The Trust Assets.
(1) Employer Contributions shall be paid to the Trustee, from time
to time, in accordance with the Plan. All Employer Contributions hereafter made
and all investments thereof together with all accumulations, accruals, earnings
and income with respect thereto shall be held by the Trustee in trust hereunder
as the Trust Assets. The Trust Assets shall be received by the Trustee and
invested pursuant to written instructions to the Trustee from the Committee. The
Trustee shall not be responsible for the administration of the Plan, maintaining
any records of Participants' Accounts under the Plan, or the computation of or
collection of Employer Contributions, but shall hold, invest, reinvest, manage,
administer and distribute the Trust Assets as provided herein for the exclusive
benefit of Participants, retired Participants and their Beneficiaries.
(2) Unless otherwise directed by the Company or the Committee
provided for in the Plan (hereinafter referred to as the "Committee"), the
Trustee shall hold, invest and administer the Trust Assets as a single fund
without identification of any part of the Trust Assets with or allocation of any
part of the Trust Assets to the Company or to any affiliate of the Company
designated by it as a participating Employer under the Plan or to any
Participant or group of Participants of the Company or of any such affiliate or
their Beneficiaries.
B. Investment.
(1) As directed by the Committee, the Trustee may invest and
reinvest the Trust Assets without distinction between principal and income in
Company Stock in accordance with the terms of the Plan and this Agreement. The
Trustee may also, as directed by the Committee, invest funds in savings
accounts, certificates of deposit, securities, or other equity stocks or bonds
or in any other kind of real or personal property, including interests in oil or
other depletable natural resources, options, puts, calls, futures contracts and
commodities; or such funds may be held in non-interest-bearing bank accounts, as
necessary on a temporary basis.
(2) The Plan assets shall be invested and controlled by the
Committee; provided, however, that the actual management of Trust investments,
other than Company Stock, may be delegated to the Trustee or may be delegated to
one or more investment managers appointed by the Committee. Investments directed
by the Committee shall not be in conflict with the "Prohibited Transactions"
provisions of the Code as currently defined and as hereafter amended. The
Trustee shall purchase or sell such shares of Company Stock, including shares of
stock of any classification issued by any subsidiary or affiliate of the
Company, pursuant to direction from the Committee. The Trustee shall have no
obligation whatsoever to seek or request any such direction from the Committee,
nor shall the Trustee have any power or authority to dispose of any such Company
Stock acquired pursuant to such direction unless directed by the Committee. The
Trustee shall, subject to the limitations hereinafter set forth, be under a duty
to
comply with any such direction when given, but shall have no responsibility
whatsoever in connection with any such purchase, retention or sale, other than
compliance with such direction.
(3) In the event the Trustee invests any part of the Trust Assets,
pursuant to the directions of the Committee, in any securities issued or
guaranteed by the Company or any subsidiary or affiliate of the Company, and the
Committee thereafter directs the Trustee to dispose of such investment, or any
part thereof, under circumstances which, in the opinion of counsel for the
Company require registration of the securities under the Securities Act of 1933
and/or qualification of the securities under the Blue Sky laws of any state or
states, then the Company, at its own expense, will take or cause to be taken any
and all such action as may be necessary or appropriate to effect such
registration and/or qualification.
C. Trustee's Powers.
As directed by the Committee, the Trustee shall have the authority
and power to:
(1) Sell, transfer, mortgage, pledge, lease or otherwise dispose
of, or grant options with respect to any securities or other property in the
Trust at public or private sale;
(2) Subject to the restrictions set forth in Section 6 of the
Plan, borrow from any lender to acquire Company Stock or any other property
authorized by this Agreement, giving its note as Trustee with such interest and
security for the loan as may be appropriate and necessary;
(3) Vote upon any stock, including Company Stock as prescribed in
Paragraph D of this Agreement, bonds or other securities held in the Trust, or
otherwise consent to or request any action on the part of the issuer in person
or by proxy;
(4) Give general or specific proxies or powers of attorney with or
without powers of substitution;
(5) Participate in reorganizations, recapitalizations,
consolidations, mergers and similar transactions with respect to Company Stock
or any other securities;
(6) Deposit such Company Stock or other securities in any voting
trust, or with any protective or like committee, or with a trustee or with
depositories designated thereby;
(7) Exercise any options, subscription rights and conversion
privileges;
(8) Sue, defend, compromise, arbitrate or settle any suit or legal
proceeding or any claim due it or on which it is liable;
(9) Contract or otherwise enter into transactions between itself
as Trustee and the Company, its subsidiaries and shareholders of any of them;
(10) Perform all acts which the Trustee shall deem necessary and
appropriate and exercise any and all powers and authority of the Trustee under
this Agreement;
(11) Exercise any of the powers of an owner, with respect to such
Company Stock and other securities or other property comprising the Trust
Assets. Either the Company or the Committee may authorize the Trustee to act on
any matter or class of matters with respect to which direction or instruction to
the Trustee by the Committee is called for hereunder without specific direction
or other instruction from the Committee.
D. Voting Company Stock.
If the shares of Company Stock are publicly traded, each
Participant shall be entitled to vote any voting shares of Company Stock
allocated to the Participant's Company Stock Account as of the record date. The
Trustee shall notify or shall cause Employer to notify each Participant of each
occasion for the exercise of voting rights not less than thirty (30) days before
such rights are to be exercised. The notification shall include all information
that the Employer distributes to shareholders regarding the exercise of such
rights. Participants shall be allowed to vote fractional shares. Any shareholder
rights other than voting rights (such as conversion rights) shall be subject to
Participant control and direction under the same terms and conditions as set
forth above. Any unallocated shares held by the Trust shall be voted by the
Trustee in accordance with instructions from the Committee.
E. Nominees.
The Trustee may register any securities or other property held by
it hereunder in its own name or in the name of its nominees with or without the
addition of words indicating that such securities are held in a fiduciary
capacity, and may hold any securities in bearer form, but the books and records
of the Trustee shall at all times show that all such investments are part of the
Trust.
F. Records.
The Trustee shall keep accurate and detailed accounts of all
investments, receipts and disbursements and other transactions hereunder, and
all accounts, books and records relating thereto shall be open to inspection by
any person designated by the Committee or the Company at all reasonable times.
The Trustee shall maintain such records, make such computations (except as
concerns Employer and Employee Contributions), and perform such ministerial acts
as the Committee may, from time to time, request.
G. Reports.
(1) Within sixty (60) days after the end of each taxable year of
the Company, or the removal or resignation of the Trustee, and as of any other
date specified by the Committee, the Trustee shall file a report with the
Committee. This report shall show for each participating Employer all purchases,
sales, receipts, disbursements, and other transactions effected by the Trustee
during the year or period for which the report is filed, and shall contain an
exact description, the cost as shown on the Trustee's books, and the market
value as of the end of such period of every item held in the Trust and the
amount and nature of every obligation owed by the Trust.
(2) The Trustee may rely without liability upon the valuation of
Company Stock as determined by the Committee. The value placed upon such
property by the Committee shall be conclusive and binding upon all parties with
an interest herein.
H. Distributions.
(1) The Trustee shall make distributions from the Trust at such
times and in such number of shares of Company Stock and amounts of cash to or
for the benefit of the persons entitled thereto under the Plan as the Committee
directs in writing. Any undistributed part of a Participant's Plan Benefit shall
be retained in the Trust until the Committee directs its distribution. Any
portion of a Participant's Plan Benefit to be distributed in cash shall be paid
by the Trustee, mailing its check to the person entitled to receive the
distribution at that person's address of record. If a dispute arises as to who
is entitled to or should receive any benefit or payment, the Trustee may
withhold or cause to be withheld such payment until the dispute has been
resolved.
(2) As directed by the Committee, the Trustee shall make payments
out of the Trust Assets. Such directions or instructions need not specify the
purpose of the payments so directed, and the Trustee shall not be responsible in
any way respecting the purpose or propriety of such payments.
(3) No distribution or payment under this Agreement to any
Participant or the Participant's Beneficiary under the Plan shall be subject in
any manner to anticipation, sale, transfer, assignment or encumbrance, whether
voluntary or involuntary, and no attempt so to anticipate, sell, transfer,
assign or encumber the same shall be valid or recognized by the Trustee, nor
shall any such distribution payment be in any way liable for, or subject to, the
debts, contracts, liabilities or torts of any person entitled to such
distribution or payment, except to such an extent as may be ordered under a
Qualified Domestic Relations Order, as provided for in the Plan. If the Trustee
is notified by the Committee that any such Participant or Beneficiary has been
adjudicated bankrupt or has purported to anticipate, sell, transfer, assign or
encumber any such distribution or payment, voluntarily or involuntarily, the
Trustee shall if so directed by the Committee, hold or apply such distribution
payment or any part thereof to or for the benefit of such Participant or
Beneficiary in such manner as the Committee shall direct.
(4) In the event that any distribution or payment directed by the
Committee shall be mailed by the Trustee to the person specified in such
direction at the latest address of such person filed with the Committee, and
shall be returned to the Trustee because such person cannot be located at such
address, the Trustee shall promptly notify the Committee of such return. Upon
the expiration of sixty (60) days after such notification, such direction shall
become void, and unless and until a further direction by the Committee is
received by the Trustee with respect to such distribution or payment, the
Trustee shall thereafter continue to administer the Trust as if such direction
had not been made by the Committee. The Trustee shall not be obligated to search
for or ascertain the whereabouts of any such person.
(5) The Plan Trustee shall have the primary responsibility for the
withholding of income taxes from Plan distributions, for the payment of withheld
income taxes on Plan distributions to the Internal Revenue Service and to
appropriate state agencies, and for notification to Participants of their right
to elect not to have income tax withheld from Plan distributions.
I. Signatures.
All communications required hereunder from the Company or the
Committee to the Trustee shall be in writing, signed by an officer of the
Company or a person authorized by the Committee to sign on its behalf. The
Committee shall authorize one or more individuals to sign, on its behalf, all
communications required hereunder between the Committee and the Trustee. The
Company and the Committee shall at all times keep the Trustee advised of the
names and specimen signatures of all members of the Committee and the
individuals authorized to sign on behalf of the Committee.
The Trustee shall be fully protected in relying on any such
communication and shall not be required to verify the accuracy or validity
thereof unless it has reasonable grounds to doubt the authenticity of any
signature. If after request the Trustee does not receive instructions from the
Committee on any matter in which instructions are required hereunder, subject to
the provisions of Paragraph D hereof, the Trustee shall act or refrain from
acting as it may determine. All communications required hereunder from the
Trustee shall be in writing, signed by the Trustee.
J. Expenses.
The Trustee and the Committee may employ suitable agents and
counsel who may be counsel for the Company. The Company shall pay all expenses
in connection with the design, establishment, or termination of the Plan. The
Trust shall pay all costs of administering the Plan, unless such expenses are
paid by the Company. However, normal brokerage charges, commissions, taxes and
other costs incident to the purchase and sale of securities which are included
in the cost of securities purchased, or charged against the proceeds in the case
of sales, shall be charged to and paid out of Trust Assets. Any expenses paid by
the Trust shall be reasonable and necessary. The Plan shall not pay, directly or
indirectly, any commissions with respect to the purchase of Employer Securities.
The Trustee shall be entitled to compensation as may be agreed upon in writing,
from time to time, between the Committee and the Trustee; provided, however,
that no person (serving as a fiduciary) who already receives full-time pay from
the Company shall receive any compensation from the Plan, except for
reimbursement of expenses properly and actually incurred.
K. Liability of Trustee.
Subject to the provisions of the Employee Retirement Income
Security Act of 1974 (hereinafter referred to as ERISA), neither the Trustee nor
the Committee shall be liable for any expense or liability hereunder unless due
to or arising from fraud, dishonesty, negligence or misconduct of the Trustee or
Committee. Except as thus provided, the Trustee shall not be liable for the
making, retention or sale of any investment or reinvestment made by the Trustee
as herein provided, nor for any loss to or diminution of the Trust Assets, nor
for any action which the Trustee takes or refrains from taking which the Trustee
deems in good faith to be in the best interests of the Trust or which the
Trustee takes or refrains from taking at the direction of the Committee or
Company. Except as thus provided, the Committee shall not be liable for the
making, retention or sale of any investment or reinvestment made by the
Committee as herein provided, nor for any loss to or diminution of the Trust
Assets, nor for any action which the Committee takes or refrains from taking
which the Committee deems in good faith to be in the best interests of the Trust
or which the Committee takes or refrains from taking at the direction of the
Company. The Trustee shall not be required to pay interest on any part of the
Trust Assets which are held uninvested pursuant to the Committee's direction.
L. Amendment and Termination.
(1) The Company shall have the right at any time, by an instrument
or in writing duly executed and acknowledged and delivered to the Trustee, to
modify, alter or amend this Agreement, in whole or in part, and to terminate the
Trust, in accordance with the express provisions of the Plan. The Company shall
have the right, to the extent provided by law, to amend this Agreement
retroactively to its effective date in order to satisfy initially the
requirements of Section 401(a) of the Code, and to terminate this Agreement in
the event of failure of the Internal Revenue Service, after application, to
determine that the Plan and the Trust initially satisfy the requirements of
Section 401(a) of the Code. In no event, however, shall the duties, power or
liabilities of the Trustee hereunder be changed without its prior written
consent.
(2) Notwithstanding any other provision of the Trust, if the
Internal Revenue Service shall fail or refuse to issue a favorable written
determination or ruling with respect to the continued qualification of the Plan
and exemption of the Trust from tax under Section 401(a) of the Code, all
Employer Contributions under Section 401(a), together with any income received
or accrued thereon less any benefits or expenses paid shall, upon the written
direction of the Company, be deemed held by the Trustee under the Employee Stock
Ownership Plan as it existed prior to the adoption of this Plan and this Plan
and the Trust shall terminate.
M. Irrevocability.
Subject to the provisions of Paragraph L, this Trust is declared to
be irrevocable and at no time shall any part of the Trust Assets revert to or be
recoverable by the Company or by any participating Employer or be used for or be
diverted to purposes other than for the exclusive benefit of Participants or
retired or terminated Participants and their Beneficiaries. However, the
Committee may, by notice in writing to the Trustee, direct that all or part of
the Trust Assets be transferred to a successor Trustee or Trustees under a Trust
instrument which is for the exclusive benefit of such Participants and their
Beneficiaries and meets the requirements of Section 401(a) of the Code, and
thereupon the Trust Assets, or any part thereof, together with any outstanding
loans and accrued interest attributable thereto, shall be paid over, transferred
or assigned to said successor Trustee or Trustees free from the Trust created
hereunder; provided, however, that no part of the Trust Assets may be used to
pay insurance policy premiums or to make contributions of the Company or of any
participating Employer under any other plan maintained by the Company or any
participating Employer for the benefit of its Employees.
N. Resignation or Removal of Trustee.
(1) Any Trustee may resign at any time upon thirty (30) days
written notice to the Company. Any Trustee may be removed at any time by the
Company upon thirty (30) days written notice to the Trustee. Upon the receipt of
instructions or directions from the Company or the Committee with which a
Trustee is unable or unwilling to comply, that Trustee may resign upon notice,
in writing, to the Company or the Committee, given within a reasonable time,
under the circumstances then prevailing, after the receipt of such instructions
or directions, and notwithstanding any other provisions hereof; in that event,
that Trustee shall have no liability to the Company, or any person interested
herein for failure to comply with such instructions or directions. Upon
resignation or removal of any Trustee, the Company shall appoint a successor
Trustee (or Trustees). The successor Trustee shall have the same powers and
duties as are conferred upon the Trustee hereunder, and the Trustee shall
assign, transfer and pay over to such successor Trustee all the moneys,
securities and other property then constituting the Trust Assets, together with
such records or copies thereof as may be necessary to the successor Trustee.
(2) The Trustee shall not be required to make any transfer under
this Paragraph N or the preceding Paragraph M to a successor Trustee or Trustees
unless and until it has been indemnified to its satisfaction against any
expenses and liabilities both with respect to such transfer and with respect to
any of its acts as Trustee prior to such transfer (except such expenses or
liabilities due to or arising from its fraud, dishonesty, negligence or
misconduct).
O. Definition.
The definitions of certain words in the Plan shall apply to this
Agreement wherever applicable. The singular or plural number shall each be
deemed to include the other whenever the context so indicates.
P. Miscellaneous.
(1) So long as this Plan is in effect, all Employers shall file
with the Internal Revenue Service and the Department of Labor, at the time and
place required, the information required under ERISA and the Code. If this Trust
and the Plan referred to herein, after initially qualifying as a tax exempt
Trust under Section 401(a) of the Code shall thereafter cease to be a qualified
Trust by reason of some act or omission on the part of the Company, the Company
agrees to indemnify Trustee and hold Trustee harmless against any liability it
may incur for Federal, Estate or other taxes as a result of payments made from
the Trust to Beneficiaries of deceased Participants after it ceases to be a
qualified trust.
(2) In the event any provisions of this Agreement shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining provisions of this Agreement, but shall be fully severable and the
Agreement shall be construed and enforced as if the illegal or invalid provision
had never been inserted herein.
Q. Acceptance.
The Trustee hereby accepts this Trust and agrees to hold the Trust
Assets existing on the date of this Agreement and all additions and accretions
thereto, subject to all the terms and conditions of this Agreement, which shall
be interpreted and construed in accordance with the Employee Retirement Income
Security Act of 1974 and any other applicable laws and to the extent not
superseded by Federal laws, in accordance with the laws of the State of
California.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Agreement to be executed in duplicate this 27th day of June, 1994.
McGRATH RENTCORP
(SEAL) By /s/ ROBERT P. MCGRATH
---------------------------------
Robert P. McGrath, President
By /s/ DELIGHT SAXTON
---------------------------------
Delight Saxton, Secretary
TRUSTEE
BANK OF CALIFORNIA
By /s/ JAMES A. COTTA
---------------------------------
James A. Cotta, Vice President &
Trust Officer