Appendix
A
GENERAL
FINANCE CORPORATION
2009
STOCK INCENTIVE PLAN
————————————————————
Plan
Document
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1.
Establishment,
Purpose, and Types of Awards
.
General Finance Corporation
(the “
Company
”)
hereby establishes this equity-based incentive compensation plan to be known as
the “General Finance Corporation 2009 Stock Incentive Plan” (hereinafter
referred to as the “
Plan
”), for the
following purposes: (a) to enhance the Company’s ability to attract highly
qualified personnel; (b) to strengthen its retention capabilities; (c) to
enhance the long-term performance and competitiveness of the Company; and (d) to
align the interests of Participants with those of stockholders.
(a)
Effective
Date
. This Plan shall become effective on the date upon which
it has received approval by a vote of a majority of the votes cast at a duly
held meeting of the Company’s stockholders (or by such other stockholder vote
that the Committee determines to be sufficient for the issuance of Shares and
Awards according to the Company’s governing documents and Applicable
Law).
(b)
Awards
. The Plan
permits the granting of the following types of Awards according to the Sections
of the Plan listed here:
Section
5
|
Stock
Options
|
Section
6
|
Share
Appreciation Rights (SARs)
|
Section
7
|
Restricted
Shares, Restricted Share Units (RSUs), and Unrestricted
Shares
|
Section
8
|
Deferred
Share Units (DSUs)
|
Section
9
|
Performance
and Cash-settled Awards
|
(c)
Appendices
. Incorporated
by reference and thereby part of the Plan are the terms set forth in the
following appendices:
Appendix
I
|
Definitions
|
Appendix
II
|
Special
U.S. provisions regarding tax and securities compliance
|
(d)
Effect on Other Plans, Awards, and
Arrangements
. This Plan is not intended to affect and shall
not affect any stock options, equity-based compensation, or other benefits that
the Company or its Affiliates may have provided, or may separately provide in
the future, pursuant to any agreement, plan, or program that is independent of
this Plan. Notwithstanding the foregoing, effective upon stockholder approval of
this Plan, no further awards of any kind shall occur under the 2006 Stock Option
Plan, and any shares that are currently reserved for awards under such plan (as
well as any Shares that in the future become available for awards under that
plan) shall be added to the reserve of Shares that are authorized and available
for issuance pursuant to this Plan.
2.
Defined
Terms
.
Terms in the Plan
and any Appendix that begin with an initial capital letter have the defined
meaning set forth in
Appendix
I
, unless the Committee concludes in good faith that the context of a
particular use indicates a different meaning that the Committee applies in a
uniform and consistent prospective manner.
3.
Shares
Subject to the Plan
.
Subject to
Section 13 below, there shall be available for issuance under the Plan an
aggregate of 1,138,000 Shares of Company Stock. The Shares
deliverable pursuant to Awards shall be authorized, but unissued Shares, or
Shares that the Company otherwise holds in treasury or in trust. In
addition, any Shares that for any reason will never be issued to a Participant
or Beneficiary pursuant to an Award (for example, due to settlement of the Award
in cash rather than in Shares, or the Award’s forfeiture, cancellation,
expiration, or net settlement) will again be available for future
Awards. Further, and to the extent permitted under Applicable Laws,
the maximum number of Shares available for delivery under the Plan shall not be
reduced by any Shares issued under the Plan through the settlement, assumption,
or substitution of outstanding awards or obligations to grant future awards as a
condition of the Company’s or an Affiliate’s acquiring another
entity. For purposes of clarity, Shares that are tendered or withheld
in payment of all or part of the exercise price of an Award or in satisfaction
of the Withholding Taxes, and Shares that are reacquired with cash tendered in
payment of the exercise price of an Award, shall not be included in or added to
the number of Shares available for issuance under the Plan.
(a)
General
Rule
. Awards may only be made to Eligible Persons (as
determined for each Award on its Grant Date). Unless specifically
stated in an Award Agreement, the grant of an Award shall not obligate the
Company or any Affiliate to continue the employment or service of any Eligible
Person, or to provide any future Awards or other remuneration at any time
thereafter.
(b)
Limits on Individual
Awards
. During the term of the Plan, no Participant may
receive Options and SARs that relate to more than 250,000 Shares, subject to
adjustment pursuant to Section 13 below.
(c)
Replacement
Awards
. Subject to Applicable Laws (including any associated
stockholder approval requirements), the Committee may, in its sole discretion
and upon such terms as it deems appropriate, require as a condition for granting
an Award that an Eligible Person surrender for cancellation some or all Awards
that have previously been granted under this Plan or otherwise. An
Award conditioned upon such surrender may or may not be the same type of Award,
may cover the same (or a lesser or greater) number of Shares as such surrendered
Award, may have other terms that are determined without regard to the terms or
conditions of such surrendered Award, and may contain any other terms that the
Committee deems appropriate.
(a)
Grants.
The
Committee may grant Options to Eligible Persons pursuant to Award Agreements
setting forth terms and conditions that are not inconsistent with the Plan;
subject to Appendix II for Awards intended to qualify as tax-favored ISOs as
defined therein. The Committee shall determine and set forth in an Award
Agreement all of the terms and conditions on which
Options
are granted, including any vesting or other requirements for the right to
exercise the Option; provided that –
(i)
|
the
exercise price for Shares subject to purchase through exercise of an
Option shall not be less than 100% of the Fair Market Value of underlying
Shares on the Grant Date, and
|
(ii)
|
no
Option shall be exercisable for a term ending more than ten years after
its Grant Date.
|
(b)
Method of
Exercise
. Options may be exercised by the Participant (or the
Participant's guardian or personal representative) giving notice to the
secretary of the Company pursuant to procedures established by the Company for
the exercise of Options. Such a notice shall state the number of
Shares the Participant has elected to purchase under the Option, and the method
by which the exercise price and any applicable Withholding Taxes will be
paid. The exercise price and Withholding Taxes may be paid in cash or
check payable to the Company (in U.S. dollars); or to the extent that the terms
of an Award Agreement expressly permit –
(i)
|
by
delivery or attestation of Shares (valued at their Fair Market Value) that
are either subject to the Option being exercised or that the Participant
has owned for at least six months (or such other period as the Committee
shall specify in the Award Agreement or thereafter in writing) in
satisfaction of all or any part of the exercise price or Withholding
Taxes,
|
(ii)
|
delivery
of a properly executed exercise notice with irrevocable instructions to a
broker to deliver to the Company the amount necessary to pay the exercise
price or Withholding Taxes from the sale or proceeds of a loan from the
broker with respect to the sale of Shares or a broker loan secured by
Shares, or
|
(iii)
|
a
combination of (i) and (ii).
|
(c)
Exercise of an Unvested
Option
. The Committee in its sole discretion may allow a
Participant to exercise an unvested Option, in which case the Shares then issued
shall be Restricted Shares having analogous vesting restrictions to the unvested
Option.
(d)
Termination of Continuous
Service
. The Committee may establish and set forth in the
applicable Award Agreement the terms and conditions on which an Option shall
remain exercisable following termination of a Participant’s Continuous
Service. Except to the extent an Award Agreement specifically
provides otherwise, an Option shall be exercisable, only to the extent the
Participant was entitled to exercise such Option at the date of terminating
Continuous Service, only until the “Option Termination Date” determined pursuant
to the following table:
Reason
for terminating Continuous Service
|
Option
Termination Date
|
(I)
By the Company for Cause, or what would have been Cause if the Company had
known all of the relevant facts.
|
Termination
of the Participant’s Continuous Service, or when Cause first existed if
earlier.
|
(II)
Disability of the Participant.
|
Within
one year after termination of the Participant’s Continuous
Service.
|
(III)
Retirement of the Participant with 5 years or more of Continuous
Service.
|
Within
one
year
after termination of the Participant’s Continuous
Service.
|
(IV)
Death of the Participant during Continuous Service or within 90
days
thereafter.
|
Within
one
year
after termination of the Participant’s Continuous
Service.
|
(V)
Other than due to Cause or the Participant’s Disability, Retirement, or
Death.
|
Within
90 days after termination of the Participant’s Continuous
Service.
|
Notwithstanding the foregoing, in no
event may any Option be exercised after the expiration of the Option term as set
forth in the Award Agreement. To the extent that a Participant is not
entitled to exercise an Option at the date of his or her termination of
Continuous Service, or if the Participant (or other person entitled to exercise
the Option) does not exercise the Option to the extent so entitled within the
time specified in the Award Agreement or above (as applicable), the Option shall
terminate and the Shares underlying the unexercised portion of the Option shall
revert to the Plan and become available for future Awards.
(e)
Buyout
. The
Committee may at any time offer to buy out an Option, in exchange for a payment
in cash or Shares, based on such terms and conditions as the Committee shall
establish and communicate to the Participant at the time that such offer is
made. In addition, but subject to any stockholder approval
requirement of Applicable Law, if the Fair Market Value for Shares subject to an
Option is more than 33% below their exercise price for more than 30 consecutive
business days, the Committee may unilaterally terminate and cancel the Option by
providing each affected Participant with either cash or a new Award that has (i)
a value equal to that of the vested portion of the Option being cancelled (with
value being uniformly determined as of the buyout date in accordance with the
methodology that the Company generally uses for financial accounting purposes
for its Awards), (ii) vesting terms not less favorable to the Participant than
the Option being cancelled, and (iii) any other terms and conditions that the
Committee may set forth in the Award Agreement for the new Award.
(a)
Grants.
The
Committee may grant SARs to Eligible Persons pursuant to Award Agreements
setting forth terms and conditions that are not inconsistent with the Plan;
provided that –
(i)
|
the
exercise price for the Shares subject to each SAR shall not be less than
100% of the Fair Market Value of underlying Shares on the Grant
Date;
|
(ii)
|
no
SAR shall be exercisable for a term ending more than ten years after its
Grant Date; and
|
(iii)
|
each
SAR shall be subject to the provisions of Section 5(d) relating to the
effect of a termination of Participant’s Continuous Service and Section
5(e) relating to buyouts, in each case with “SAR” being substituted for
“Option.”
|
(b)
Settlement.
An SAR
shall entitle the Participant, upon exercise of the SAR, to receive Shares
having a Fair Market Value on the date of exercise equal to the excess of (x)
the Fair Market Value, on such date, of the Shares covered by the exercised SAR,
over (y) an exercise price designated in the SAR Award Agreement but not less
than 100% of the Fair Market Value of the Company Stock on the SAR’s Grant
Date. An SAR Award Agreement may limit the total settlement value
that the Participant will be entitled to receive upon the SAR’s exercise, and
may provide for settlement either in cash or in any combination of cash or
Shares that the Committee may authorize pursuant to an Award
Agreement.
(c)
Term and
Conditions.
Whether or not the Committee grants SARs
independently of or in tandem with any Option, the Award Agreement for an SAR
shall set forth any terms and conditions, not inconsistent with the Plan, that
the Committee may in its discretion determine.
(d)
SARs related to
Options
. The Committee may grant SARs either concurrently with
the grant of an Option or with respect to an outstanding Option, in which case
the SAR shall extend to all or a portion of the Shares covered by the related
Option. An SAR shall entitle the Participant who holds the related
Option, upon exercise of the SAR and surrender of the related Option, or portion
thereof, to the extent the SAR and related Option each were previously
unexercised, to receive payment of an amount determined pursuant to Section 6(b)
above.
(e)
Effect on Available
Shares.
Upon each exercise of an SAR that is settled in
Shares, only those Shares that are issued or delivered in settlement of the
exercise shall be counted against the number of Shares available for Awards
under the Plan; provided that the number of Shares that are issued or delivered
pursuant to the exercise of an SAR shall not exceed the number of Shares
specified in the Award Agreement as being subject to the SAR Award.
(f)
Termination of Employment or
Consulting Relationship
.
The Committee
shall establish and set forth in the applicable Award Agreement the terms and
conditions on which a SAR shall remain exercisable, if at all, following
termination of a Participant’s Continuous Service, subject to Section
6(a)(iii).
7.
|
Restricted Shares,
RSUs, and Unrestricted Share
Awards
.
|
(a)
Grant.
The
Committee may grant Restricted Share or RSU Awards to Eligible Persons, in all
cases pursuant to Award Agreements setting forth terms and conditions that are
not inconsistent with the Plan. The Committee shall establish as to
each Restricted Share or RSU
Award the
period or periods of time (the “
Restriction Period
”)
at the end of which all or some specified restrictions(which may include the
satisfaction of performance criteria as established by the Committee, the
passage of time or such other conditions as the Committee shall set), shall
lapse and the Participant shall receive unrestricted Shares in settlement of the
Award. The Committee may make Restricted Share and RSU Awards
with or without the requirement for payment of cash consideration. In
addition, the Committee may grant Awards hereunder in the form of Unrestricted
Shares which shall vest in full upon the Grant Date or such other date as the
Committee may determine or which the Committee may issue pursuant to any program
under which one or more Eligible Persons (selected by the Committee in its sole
discretion) elect to pay for such Shares or to receive Unrestricted Shares in
lieu of cash bonuses that would otherwise be paid.
(b)
Vesting and
Forfeiture.
The Committee shall set forth in an Award
Agreement granting Restricted Shares or RSUs, the terms and conditions under
which the Participant’s interest in the Restricted Shares or the Shares subject
to RSUs will become vested and non-forfeitable. Except as set forth
in the applicable Award Agreement or the Committee otherwise determines, upon
termination of a Participant’s Continuous Service for any reason, the
Participant shall forfeit his or her Restricted Shares and RSUs to the extent
the Participant’s interest therein has not vested on or before such termination
date; provided that if a Participant purchases Restricted Shares and forfeits
them for any reason, the Company shall return the purchase price to the
Participant only if and to the extent set forth in an Award Agreement or to the
extent required by Applicable Laws.
(c)
Certificates for Restricted
Shares.
Unless otherwise provided in an Award Agreement, the
Company shall hold certificates representing Restricted Shares and dividends
(whether in Shares or cash) that accrue with respect to them until the
restrictions lapse, and the Participant shall provide the Company with
appropriate stock powers endorsed in blank. The Participant’s failure to provide
such stock powers within ten days after a written request from the Company shall
entitle the Committee to unilaterally declare a forfeiture of all or some of the
Participant’s Restricted Shares.
(d)
Issuance of Shares upon
Vesting
. As soon as practicable after both the vesting of a
Participant’s Restricted Shares (or of the right to receive Shares underlying
RSUs) and the Participant’s satisfaction of applicable Withholding Taxes, the
Company shall deliver to the Participant, free from vesting restrictions, one
Share for each surrendered and vested Restricted Share (or deliver one Share
free of the vesting restriction for each vested RSU), unless an Award Agreement
provides otherwise. No fractional Shares shall be distributed, and
cash shall be paid in lieu thereof.
(e)
Dividends Payable on
Vesting
. Except to the extent otherwise provided in the Award
Agreement, whenever Shares are deliverable to a Participant or duly-authorized
transferee pursuant to Section 7(d) above as a result of the vesting of a
Restricted Share or RSU Award, the Participant or his or her duly authorized
transferee shall also be entitled to receive, with respect to each Share then
vesting, a number of Shares equal to the sum of –
(i)
|
any
per-Share dividends which were declared and paid in Shares to the
Company’s stockholders of record between the Grant Date and the date
Shares are delivered to the Participant pursuant to the particular vesting
event for the Award, and
|
(ii)
|
the
Shares that the Participant could have purchased at their Fair Market
Value on the payment date of any cash dividends if the Participant had
received such cash dividends with respect to each Restricted Share, or
Share subject to an RSU, between the Grant Date and the date Shares are
delivered to the Participant pursuant to the particular vesting event for
the Award.
|
(f)
Deferral Elections for
RSUs
. To the extent specifically provided in an Award
Agreement, a Participant may irrevocably elect, in accordance with Section 8
below, to defer the receipt of all or a percentage of the Shares that would
otherwise be transferred to the Participant upon the vesting of an RSU
Award. If the Participant makes this election: (i) the Company shall
credit the Shares subject to the election, and any associated dividends and
interest, to a DSU account established pursuant to Section 8 below on the date
such Shares and any associated cash would otherwise have been delivered to the
Participant pursuant to Section 7(d) and 7(e) above, and (ii) any vesting that
would have occurred (other than for death or Disability if provided pursuant to
the Award Agreement) within the 12-month period following the date of the
Participant’s election shall occur on the 12-month anniversary of such
election.
(a)
Elections to
Defer
. The Committee may permit any Eligible Person to
irrevocably elect, on a form provided by and acceptable to the Committee (the
“
Election
Form
”), to forego the receipt of cash or other compensation (including
the Shares deliverable pursuant to any RSU Award) and in lieu thereof to have
the Company credit to an internal Plan account a number of DSUs having a Fair
Market Value equal to the Shares and other compensation
deferred. These credits will be made at the end of each calendar
quarter (or other period determined by the Committee) during which compensation
is deferred. Unless the Company sends a Participant a written notice
rejecting an Election Form within five business days after the Company receives
it, an Election Form shall take effect on the first day of the next calendar
year (or on the first day of the next calendar month in the case of an initial
election within 30 days after a Participant becomes first eligible to defer
hereunder) after its delivery to the Company. Notwithstanding the
foregoing sentence, a Participant’s Election Form will be ineffective with
respect to any compensation that the Participant earns before the date on which
the Election Form takes effect.
(b)
Vesting
. Unless an
Award Agreement expressly provides otherwise, each Participant shall be 100%
vested at all times in any Shares subject to DSUs.
(c)
Issuances of
Shares
. The Company shall settle a Participant’s DSU Award, by
delivering one Share for each DSU, in five substantially equal annual
installments that are issued before the last day of each of the five calendar
years that end after the date on which the Participant’s Continuous Service ends
for any reason, subject to –
(i)
the
Participant’s right to elect a different form of distribution, only on a form
provided by and acceptable to the Committee, that permits the Participant to
select any combination of a lump sum and annual installments that are triggered
by, and completed within ten years following, the last day of the Participant’s
Continuous Service, and
(ii)
the
Company’s acceptance of the Participant’s distribution election form at the time
the Participant elects to defer the receipt of cash or other compensation
pursuant to Section 9(a), provided that the Participant may change a
distribution election through any subsequent election that (I) the Participant
delivers to the Company at least one year before the date on which distributions
are otherwise scheduled to commence pursuant to the Participant’s initial
distribution election, and (II) defers the commencement of distributions by at
least five years from the originally scheduled distribution commencement
date.
Fractional
shares shall not be issued, and instead shall be paid out in cash.
(d)
Dividends
. Unless
otherwise provided in an Award Agreement, whenever Shares are issued to a
Participant pursuant to Section 9(c) above, such Participant shall also be
entitled to receive, with respect to each Share issued, a number of Shares
determined in a manner consistent with Section 7(e) above.
(e)
Emergency
Withdrawals
. In the event the Committee determines that a
Participant suffers an unforeseeable emergency within the contemplation of this
Section, the Participant may apply to the Company for an immediate distribution
of all or a portion of the Participant’s DSUs. The unforeseeable
emergency must result from a sudden and unexpected illness or accident of the
Participant, the Participant’s spouse, or a dependent of the Participant,
casualty loss of the Participant’s property, or other similar extraordinary and
unforeseeable conditions beyond the control of the Participant. The
Committee shall, in its sole and absolute discretion, determine whether a
Participant has a qualifying unforeseeable emergency, and whether or not to
provide the Participant with cash or Shares. The amount of any
distribution hereunder shall be limited to the amount necessary to relieve the
Participant’s unforeseeable emergency plus amounts necessary to pay taxes
reasonably anticipated as a result of the distribution. The number of
Shares subject to the Participant’s DSU Award shall be reduced by any Shares
distributed to the Participant and by a number of Shares having a Fair Market
Value equal to any cash paid to the Participant pursuant to this
Section.
(f)
Unsecured Rights to Deferred
Compensation
. A Participant’s right to DSUs shall at all times
constitute an unsecured promise of the Company to pay benefits as they come
due. The right of the Participant or the Participant’s
duly-authorized transferee to receive benefits hereunder shall be solely an
unsecured claim against the general assets of the Company. Neither
the Participant nor the Participant’s duly-authorized transferee shall have any
claim against or rights in any specific assets, Shares or other funds of the
Company.
9.
|
Performance and
Cash-Settled Awards
.
|
(a)
Performance
Units
. Subject to the limitations set forth in paragraph (b)
hereof, the Committee may in its discretion grant Performance Units to any
Eligible Person, including Performance Unit Awards that (i) have substantially
the same financial benefits and other terms and conditions as Option, SARs,
RSUs, or DSUs, but (ii) are settled only in cash. All Awards
hereunder shall be made pursuant to Award Agreements setting forth terms and
conditions that are not inconsistent with the Plan.
(b)
Deferral Elections
. At any
time prior to the date that is at least six months before the close of a
Performance Period (or shorter or longer period that the Committee selects) with
respect to an Award of either Performance Units or Performance Compensation, the
Committee may permit a Participant who is a member of a select group of
management or highly compensated employees to irrevocably elect, on a form
provided by and acceptable to the Committee, to defer the receipt of all or a
percentage of the cash or Shares that would otherwise be transferred to the
Participant upon the vesting of such Award. If the Participant makes
this election, the cash or Shares subject to the election, and any associated
interest and dividends, shall be credited to an account established pursuant to
Section 8 hereof on the date such cash or Shares would otherwise have been
released or issued to the Participant pursuant to Section 9(a)
above.
10.
Taxes;
Withholding
.
Participants are
solely responsible and liable for the satisfaction of all taxes and penalties
that may arise in connection with Awards, and neither the Company, any
Affiliate, nor any of their employees, directors, or agents shall have any
obligation to mitigate, indemnify or to otherwise hold any Participant harmless
from any or all of such taxes.
The Company’s obligation
to deliver Shares (or to pay cash) to Participants pursuant to Awards is at all
times subject to their prior or coincident satisfaction of all required
Withholding Taxes. Except to the extent otherwise either provided in
an Award Agreement or thereafter authorized by the Committee, the Company or any
Affiliate will satisfy required Withholding Taxes first from withholding the
cash otherwise payable to the Participant pursuant to the Award, and then by
withholding and cancelling the Participant’s rights with respect to a number of
Shares that (i) would otherwise have been delivered to the Participant pursuant
to the Award and (ii) have an aggregate Fair Market Value equal to the
Withholding Taxes (such withheld Shares to be valued on the basis of the
aggregate Fair Market Value thereof on the date of the
withholding). The number of Shares so withheld and cancelled will be
rounded up to the nearest whole Share sufficient to satisfy the Withholding
Taxes, with cash being paid to the Participant in an amount equal to the amount
by which the Fair Market Value of such Shares exceeds the Withholding
Taxes.
11.
Non-Transferability of
Awards
.
(a)
General.
Except as
set forth in this Section, or as otherwise approved by the Committee, Awards may
not be sold, pledged, assigned, hypothecated, transferred or disposed of in any
manner other than by will or by the laws of descent or
distribution. The designation of a death beneficiary by a Participant
will not constitute a transfer. An Award may be exercised, during the
lifetime of the holder of an Award, only by such holder, the duly-authorized
legal representative of a Participant who is Disabled, or a transferee permitted
by this Section 11.
(b)
Death
. In the event of the
death of a Participant, any outstanding Awards issued to the Participant shall
automatically be transferred to the Participant’s Beneficiary (or, if no
Beneficiary is designated or surviving, to the person or persons to whom the
Participant’s rights under the Award pass by will or the laws of descent and
distribution).
12.
Modification
of Awards and Substitution of Options
.
Within the limitations of
the Plan, the Committee may modify an Award to accelerate the rate at which an
Option or SAR may be exercised, to accelerate the vesting of any Award, to
extend or renew outstanding Awards or to accept the cancellation of outstanding
Awards to the extent not previously exercised. Notwithstanding the
foregoing provision, no modification of an outstanding Award shall materially
and adversely affect a Participant’s rights thereunder unless either (i) the
Participant provides written consent or (ii) before a Change in Control, the
Committee determines in good faith that the modification is not materially
adverse to the Participant.
13.
|
Change in Capital
Structure; Change in Control;
Etc
.
|
(a)
Changes in
Capitalization.
In the event of a Share dividend, Share split,
or combination of Shares, Share exchange, recapitalization or merger in which
the Company is the surviving corporation, spin-off or split-off of an Affiliate,
or other change in the Company capital stock (including, but not limited to, the
creation or issuance to stockholders generally of rights, options or warrants
for the purchase of common stock or preferred stock of the Company), the number
and kind of Shares of stock or securities of the Company to be subject to the
Plan and to Awards then outstanding or to be granted, any and all maximum limits
on the number of Shares that may be delivered under the Plan, any exercise price
for Awards, and other relevant provisions shall be equitably adjusted by the
Committee.
(b)
Change in
Control.
In the event of a Change in Control, but subject to
the terms of any Award Agreements, the Committee may in its sole and absolute
discretion and authority, without obtaining the approval or consent of the
Company’s stockholders or any Participant with respect to his or her outstanding
Awards, take one or more of the following actions (with respect to any or all of
the Awards, and with discretion to differentiate between individual Participants
and Awards for any reason):
(i)
arrange
for or otherwise provide that each outstanding Award shall be assumed or a
substantially similar award shall be substituted by a successor corporation or a
parent or subsidiary of such successor corporation;
(ii)
accelerate
the vesting of Awards so that Awards shall vest (and, to the extent applicable,
become exercisable) as to the Shares that otherwise would have been unvested and
provide that repurchase rights of the Company with respect to Shares issued
pursuant to an Award shall lapse as to the Shares subject to such repurchase
right;
(iii)
arrange
or otherwise provide for the payment of cash or other consideration to
Participants in exchange for the satisfaction and cancellation of outstanding
Awards (with the Committee determining the amount payable to each Participant
based on the Fair Market Value, on the date of the Change in Control, of the
Award being cancelled, based on any reasonable valuation method selected by the
Committee); or
(iv)
terminate
all or some Awards upon the consummation of the transaction, provided that the
Committee shall provide for vesting of such Awards in full as of a date
immediately prior to consummation of the Change in Control. To the
extent that an Award is not exercised prior to consummation of a transaction in
which the Award is not being assumed or substituted, such Award shall terminate
upon such consummation.
(c)
Dissolution or
Liquidation
. In the event of the dissolution or liquidation of
the Company other than as part of a Change in Control, each Award will terminate
immediately prior to the consummation of such action, subject to the ability of
the Committee to exercise any discretion authorized in the case of a Change in
Control.
14.
|
Laws And
Regulations
.
|
(a)
General
Rules.
This Plan, the grant of Awards, the exercise of Options
and SARs, and the obligation of the Company to deliver, sell or accept the
surrender of any of its Shares or other securities shall be subject to all
Applicable Laws. In the event that any Shares are not registered
under any Applicable Law prior to the required delivery of them pursuant to
Awards, the Company may require, as a condition to their issuance or delivery,
that the persons to whom the Shares are to be issued or delivered make any
written representations and warranties (such as, but not limited to, that such
Shares are being acquired by the Participant for investment for the
Participant’s own account and not with a view to, for resale in connection with,
or with an intent of participating directly or indirectly in, any distribution
of such Shares) that the Committee may reasonably require, and the Committee may
in its sole discretion include a legend to such effect on the certificates
representing any Shares issued or delivered pursuant to the Plan.
(b)
Black-out
Periods.
Notwithstanding any contrary terms within the Plan or
any Award Agreement, the Committee shall have the absolute discretion to impose
a “blackout” period on the exercise of any Option or SAR, as well as the
settlement of any Award, with respect to any or all Participants (including
those whose Continuous Service has ended) to the extent that the Committee
determines that doing so is either desirable or required in order to comply with
applicable securities laws, provided that, if any blackout period occurs, the
term of any Option or SAR shall not expire until the earlier of (i) 30 days
after the blackout period ends or (ii) the Option’s or SAR’s expiration date but
only if within 30 days thereafter the Company makes a cash payment to each
affected Participant in an amount equal to the value of the Option or SAR (as
determined by the Committee) immediately before its expiration to the extent
then vested and exercisable.
(c)
Local Law Adjustments and
Sub-plans.
To facilitate the making of any grant of an Award
under this Plan, the Committee may provide for such special terms for Awards to
Participants who are located within the United States, foreign nationals, or who
are employed by the Company or any Affiliate outside of the United States of
America as the Committee may consider necessary or appropriate to accommodate
differences in local law, tax policy or custom. The Company may adopt
rules and procedures relating to the operation and administration of this Plan
to accommodate the specific requirements of local laws and procedures of
particular countries.
Without
limiting the foregoing, the Company is specifically authorized to adopt rules
and procedures regarding the conversion of local currency, taxes, withholding
procedures and handling of stock certificates which vary with the customs and
requirements of particular countries. The Company may adopt sub-plans
and establish escrow accounts and trusts as may be appropriate or applicable to
particular locations and countries.
15.
Termination, Rescission and
Recapture of Awards
.
(a)
Each
Award under the Plan is intended to align the Participant’s long-term interest
with those of the Company. If the Participant engages in certain
activities discussed below, either during employment or after employment with
the Company terminates for any reason, the Participant is acting contrary to the
long-term interests of the Company. Accordingly, but only to the
extent expressly provided in an Award Agreement, the Company may terminate any
outstanding, unexercised, unexpired, unpaid or deferred Awards (“
Termination
”),
rescind any exercise, payment or delivery pursuant to the Award (“
Rescission
”), or
recapture any Common Stock (whether restricted or unrestricted) or proceeds from
the Participant’s sale of Shares issued pursuant to the Award (“
Recapture
”), if the
Participant does not comply with the conditions of subsections (b), (c), and (e)
hereof (collectively, the “
Conditions
”).
(b)
A
Participant shall not, without the Company’s prior written authorization,
disclose to anyone outside the Company, or use in other than the Company’s
business, any proprietary or confidential information or material, as those or
other similar terms are used in any applicable patent, confidentiality,
inventions, secrecy, or other agreement between the Participant and the Company
with regard to any such proprietary or confidential information or
material.
(c)
Pursuant
to any agreement between the Participant and the Company with regard to
intellectual property (including, but not limited to, patents, trademarks,
copyrights, trade secrets, inventions, developments, improvements, proprietary
information, confidential business and personnel information), a Participant
shall promptly disclose and assign to the Company or its designee all right,
title, and interest in such intellectual property, and shall take all reasonable
steps necessary to enable the Company to secure all right, title and interest in
such intellectual property in the United States and in any foreign
country.
(d)
Upon
exercise, payment or delivery of cash or Common Stock pursuant to an Award, the
Participant shall certify on a form acceptable to the Company that he or she is
in compliance with the terms and conditions of the Plan and, if a severance of
Continuous Service has occurred for any reason, shall state the name and address
of the Participant’s then-current employer or any entity for which the
Participant performs business services and the Participant’s title, and shall
identify any organization or business in which the Participant owns a
greater-than-five-percent equity interest.
(e)
If the
Company determines, in its sole and absolute discretion, that (i) a Participant
has violated any of the Conditions or (ii) during his or her Continuous Service,
or within year after its termination for any reason, a Participant (x) has
rendered services to or otherwise directly or indirectly engaged in or assisted,
any organization or business that, in the judgment of the Company
in its
sole and absolute discretion, is or is working to become competitive with the
Company; (y) has solicited any employee of the Company to terminate employment
with the Company; or (z) has engaged in activities which are materially
prejudicial to or in conflict with the interests of the Company, including any
breaches of fiduciary duty or the duty of loyalty, then the Company may, in its
sole and absolute discretion, impose a Termination, Rescission, and/or Recapture
with respect to any or all of the Participant’s relevant Awards, Shares, and the
proceeds thereof.
(f)
Within
days after receiving notice from the Company of any such activity described in
Section 15(e) above, the Participant shall deliver to the Company the Shares
acquired pursuant to the Award, or, if Participant has sold the Shares, the gain
realized, or payment received as a result of the rescinded exercise, payment, or
delivery; provided, that if the Participant returns Shares that the Participant
purchased pursuant to the exercise of an Option (or the gains realized from the
sale of such Common Stock), the Company shall promptly refund the exercise
price, without earnings, that the Participant paid for the
Shares. Any payment by the Participant to the Company pursuant to
this Section shall be made either in cash or by returning to the Company the
number of Shares that the Participant received in connection with the rescinded
exercise, payment, or delivery. It shall not be a basis for
Termination, Rescission or Recapture if after termination of a Participant’s
Continuous Service, the Participant purchases, as an investment or otherwise,
stock or other securities of such an organization or business, so long as (i)
such stock or other securities are listed upon a recognized securities exchange
or traded over-the-counter, and (ii) such investment does not represent more
than a five percent (5%) equity interest in the organization or
business.
(g)
Notwithstanding
the foregoing provisions of this Section, the Company has sole and absolute
discretion not to require Termination, Rescission and/or Recapture, and its
determination not to require Termination, Rescission and/or Recapture with
respect to any particular act by a particular Participant or Award shall not in
any way reduce or eliminate the Company’s authority to require Termination,
Rescission and/or Recapture with respect to any other act or Participant or
Award. Nothing in this Section shall be construed to impose
obligations on the Participant to refrain from engaging in lawful competition
with the Company after the termination of employment that does not violate
subsections (b), (c), or (e) of this Section, other than any obligations that
are part of any separate agreement between the Company and the Participant or
that arise under Applicable Law.
(h)
The
Committee may delegate administrative and discretionary authority to administer
the Plan to another committee of the Board, an officer of the Company or such
other person or as the Committee may designate from time to time.
(i)
If any
provision within this Section is determined to be unenforceable or invalid under
any Applicable Law, such provision will be applied to the maximum extent
permitted by Applicable Law, and shall automatically be deemed amended in a
manner consistent with its objectives and any limitations required under
Applicable Law. Notwithstanding the foregoing, but subject to any
contrary terms set forth in any Award Agreement, this Section shall not be
applicable to any Participant from and after his or her termination of
Continuous Service after a Change in Control.
16.
Recoupment
of Awards
.
Unless otherwise
specifically provided in an Award Agreement, and to the extent permitted by
Applicable Law, the Committee may in its sole and absolute discretion, without
obtaining the approval or consent of the Company’s stockholders, require that
any Participant reimburse the Company for all or any portion of any Awards
granted under this Plan (“
Reimbursement
”), or
the Committee may require the Termination or Rescission of, or the Recapture
associated with, any Award, if—
(a)
the
granting, vesting, or payment of such Award was predicated upon the achievement
of certain financial results that were subsequently the subject of a material
financial restatement;
(b)
in the
Committee’s view the Participant engaged in fraud or misconduct that caused or
partially caused the need for a material financial restatement by the Company or
any Affiliate; and
(c)
a lower
granting, vesting, or payment of such Award would have occurred based upon the
restated financial results.
In each
instance, the Committee will, to the extent practicable and allowable under
Applicable Laws, require Reimbursement, Termination or Rescission of, or
Recapture relating to, any such Award granted to a Participant; provided that
the Company will not seek Reimbursement, Termination or Rescission of, or
Recapture relating to, any such Awards that were paid or vested more than three
years prior to the first date of the applicable restatement period.
17.
Administration
of the Plan
.
The
Committee shall administer the Plan in accordance with its terms, provided that
the Board may act in lieu of the Committee on any matter. The
Committee shall hold meetings at such times and places as it may determine and
shall make such rules and regulations for the conduct of its business as it
deems advisable. In the absence of a duly appointed Committee, the
Board shall function as the Committee for all purposes of the Plan.
(a)
Committee
Composition
. The Board shall appoint the members of the
Committee. If and to the extent permitted by Applicable Law, the Committee may
authorize one or more executive officers to make Awards to Eligible Persons
other than themselves. The Board may at any time appoint additional
members to the Committee, remove and replace members of the Committee with or
without Cause, and fill vacancies on the Committee however caused.
(b)
Powers of the
Committee
. Subject to the provisions of the Plan, the
Committee shall have the authority, in its sole discretion:
(i)
to grant
Awards and to determine Eligible Persons to whom Awards shall be granted from
time to time, and the number of Shares, units, or dollars to be covered by each
Award;
(ii)
to
determine, from time to time, the Fair Market Value of Shares;
(iii)
to
determine, and to set forth in Award Agreements, the terms and conditions of all
Awards, including any applicable exercise or purchase price, the installments
and conditions under which an Award shall become vested (which may be based on
performance), terminated, expired, cancelled, or replaced, and the circumstances
for vesting acceleration or waiver of forfeiture restrictions, and other
restrictions and limitations;
(iv)
to
approve the forms of Award Agreements and all other documents, notices and
certificates in connection therewith which need not be identical either as to
type of Award or among Participants;
(v)
to
construe and interpret the terms of the Plan and any Award Agreement, to
determine the meaning of their terms, and to prescribe, amend, and rescind rules
and procedures relating to the Plan and its administration;
(vi)
in order
to fulfill the purposes of the Plan and without amending the Plan, to modify, to
cancel, or to waive the Company’s rights with respect to any Awards, to adjust
or to modify Award Agreements for changes in Applicable Law, and to recognize
differences in foreign law, tax policies, or customs; and
(vii)
to make
all interpretations and to take all other actions that the Committee may
consider necessary or advisable to administer the Plan or to effectuate its
purposes.
Subject
to Applicable Law and the restrictions set forth in the Plan, the Committee may
delegate administrative functions to individuals who are Directors or
Employees.
(c)
Deference to Committee
Determinations
. The Committee shall have the discretion to
interpret or construe ambiguous, unclear, or implied (but omitted) terms in any
fashion it deems to be appropriate in its sole discretion, and to make any
findings of fact needed in the administration of the Plan or Award
Agreements. The Committee’s prior exercise of its discretionary
authority shall not obligate it to exercise its authority in a like fashion
thereafter. The Committee’s interpretation and construction of any
provision of the Plan, or of any Award or Award Agreement shall be final,
binding, and conclusive. The validity of any such
interpretation, construction, decision or finding of fact shall not be given de
novo review if challenged in court, by arbitration, or in any other forum, and
shall be upheld unless clearly made in bad faith or materially affected by
fraud.
(d)
No Liability;
Indemnification
. Neither the Board nor any Committee member,
nor any person acting at the direction of the Board or the Committee, shall be
liable for any act, omission, interpretation, construction or determination made
in good faith with respect to the Plan, any Award or any Award
Agreement. The Company and its Affiliates shall pay or reimburse any
member of the Committee, as well as any Director, Employee, or Consultant who in
good faith takes action on behalf of the Plan, for all expenses incurred with
respect to the Plan, and to the full extent allowable under Applicable Law shall
indemnify each and every one of them for any claims, liabilities, and costs
(including reasonable attorney’s fees) arising out of their good faith
performance of duties on behalf of the Plan. The Company and its
Affiliates may, but shall not be required to, obtain liability insurance for
this purpose.
18.
Governing
Law
.
The terms of this
Plan shall be governed by the laws of the State of Delaware without regard to
its conflict of laws rules.
19.
|
Plan Termination or
Amendment
|
If not
sooner terminated by the Board, this Plan shall terminate at the close of
business on the date ten years after its effective date. No Awards
shall be made under the Plan after its termination. The Board may
amend or terminate the Plan as it shall deem advisable; provided that no change
shall be made that increases the total number of Shares of Company Stock
reserved for issuance pursuant to Awards granted under the Plan (except pursuant
to Section 13 above) unless such change is authorized by the stockholders of the
Company. A termination or amendment of the Plan shall not, without
the consent of the Participant, adversely affect a Participant’s rights under an
Award previously granted to him or her. Notwithstanding the
foregoing, the Committee may amend the Plan to comply with changes in tax or
securities laws or regulations, or in the interpretation thereof.
GENERAL
FINANCE CORPORATION
2009
STOCK INCENTIVE PLAN
_______________________________________
Appendix
I: Definitions
_______________________________________
As used
in the Plan, the following terms have the meanings indicated when they begin
with initial capital letters within the Plan:
“
Affiliate
”
means, with respect to any Person, any other Person that directly or indirectly
controls or is controlled by or under common control with such
Person. For the purposes of this definition, “control,” when used
with respect to any Person, means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
Person or the power to elect directors, whether through the ownership of voting
securities, by contract or otherwise; and the terms “affiliated,” “controlling”
and “controlled” have meanings correlative to the foregoing.
“
Applicable
Law
” means the legal requirements relating to the administration of
options and share-based plans under any applicable laws of the United States,
any other country, and any provincial, state, or local subdivision, any
applicable stock exchange or automated quotation system rules or regulations, as
such laws, rules, regulations and requirements shall be in place from time to
time.
“
Award
”
means any award made pursuant to the Plan, including awards made in the form of
an Option, an SAR, a Restricted Share, a RSU, an Unrestricted Share, a DSU, or a
Performance Award, or any combination thereof, whether alternative or
cumulative.
“
Award
Agreement
” means any written document setting forth the terms of an Award
that has been authorized by the Committee. The Committee shall determine the
form or forms of documents to be used, and may change them from time to time for
any reason.
“
Beneficiary
”
means the person or entity designated by the Participant, in a form approved by
the Company, to exercise the Participant’s rights with respect to an Award or
receive payment or settlement under an Award after the Participant’s
death.
“
Board
”
means the Board of Directors of the Company.
“
Cause
”
will have the meaning set
forth in any unexpired employment agreement between the Company and the
Participant. In the absence of such an agreement, “Cause” will exist if the
Participant is terminated from employment or other service with the Company or
an Affiliate for any of the following reasons: (i) the Participant’s willful
failure to substantially perform his or her duties and responsibilities to the
Company or deliberate violation of a material Company policy; (ii) the
Participant’s commission of any material act or acts of fraud, embezzlement,
dishonesty, or other willful misconduct; (iii) the Participant’s material
unauthorized use or disclosure of any
proprietary
information or trade secrets of the Company or any other party to whom the
Participant owes an obligation of nondisclosure as a result of his or her
relationship with the Company or (iv) Participant’s willful and material breach
of any of his or her obligations under any written agreement or covenant with
the Company. The Committee shall in its discretion determine whether
or not a Participant is being terminated for Cause. The Committee’s
determination shall, unless arbitrary and capricious, be final and binding on
the Participant, the Company, and all other affected persons. The
foregoing definition does not in any way limit the Company’s ability to
terminate a Participant’s employment or consulting relationship at any time, and
the term “Company” will be interpreted herein to include any Affiliate or
successor thereto, if appropriate.
“
Change in
Control
” means any of the following:
(i)
Acquisition of Controlling
Interest
. Any Person
(other than
Persons who are a stockholder as of the date this Plan became effective)
becomes the Beneficial Owner (within the meaning of Rule 13d-3 promulgated under
the Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company’s then
outstanding securities. In applying the preceding sentence, (i)
securities acquired directly from the Company or its Affiliates by or for the
Person shall not be taken into account and (ii) an agreement to vote securities
shall be disregarded unless its ultimate purpose is to cause what would
otherwise be Change in Control, as reasonably determined by the
Board.
(ii)
Change in Board
Control
. During any consecutive one-year period commencing
after the date of adoption of this Plan, individuals who constituted the Board
at the beginning of the period (or their approved replacements, as defined in
the next sentence) cease for any reason to constitute a majority of the
Board. A new Director shall be considered an “approved replacement”
Director if his or her election (or nomination for election) was approved by a
vote of at least a majority of the Directors then still in office who either
were Directors at the beginning of the period or were themselves approved
replacement Directors, but in either case excluding any Director whose initial
assumption of office occurred as a result of an actual or threatened
solicitation of proxies or consents by or on behalf of any Person other than the
Board.
(iii)
Merger
. The
Company consummates a merger, or consolidation of the Company with any other
corporation unless: (a) the voting securities of the Company outstanding
immediately before the merger or consolidation would continue to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least
50%
of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; and (b) no
Person (other than Persons who are Employees at any time more than one year
before a transaction) becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing 5
0%
or more of the combined
voting power of the Company’s then outstanding securities.
(iv)
Sale of
Assets
. The stockholders of the Company approve an agreement
for the sale or disposition by the Company of all, or substantially all, of the
Company’s assets.
(v)
Liquidation or
Dissolution
. The stockholders of the Company approve a plan or
proposal for liquidation or dissolution of the Company.
Notwithstanding
the foregoing, a “Change in Control” shall not be deemed to have occurred by
virtue of the consummation of any transaction or series of integrated
transactions immediately following which the record holders of the common stock
of the Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an entity
which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
“
Committee
”
means the Compensation Committee of the Board or its successor.
“
Company
”
means General Finance Corporation, a Delaware corporation; provided, however,
that in the event the Company reincorporates to another jurisdiction, all
references to the term “Company” shall refer to the Company in such new
jurisdiction.
“
Company
Stock
” means common stock, $0.0001 par value, of the
Company. In the event of a change in the capital structure of the
Company affecting the common stock (as provided in Section 13), the Shares
resulting from such a change in the common stock shall be deemed to be Company
Stock within the meaning of the Plan.
“
Consultant
”
means any person, including an advisor, who is engaged by the Company or any
Affiliate to render services and is compensated for such services.
“
Continuous
Service
” means the absence of any interruption or termination of service
as an Employee, Director, or Consultant. Continuous Service shall not
be considered interrupted in the case of: (i) sick leave; (ii)
military leave; (iii) any other leave of absence approved by the Committee,
provided that such leave is for a period of not more than 90 days, unless
reemployment upon the expiration of such leave is guaranteed by contract or
statute, or unless provided otherwise pursuant to Company policy adopted from
time to time; (iv) changes in status from Director to advisory director or
emeritus status; or (iv) in the case of transfers between locations of the
Company or between the Company and its Affiliates. Changes in status
between service as an Employee, Director, and a Consultant will not constitute
an interruption of Continuous Service if the Committee determines that the
individual has continued or will continue to perform bona fide services for the
Company or determines that the relationship will or may result in adverse
accounting consequences. The Committee shall have the discretion to
determine whether and to what extent the vesting of any Awards shall be tolled
during any paid or unpaid leave of absence; provided, however, that in the
absence of such determination, vesting for all Awards shall be tolled during any
such unpaid leave (but not for a paid leave).
“
Deferred
Share Units
” or “
DSUs
”
mean Awards pursuant to Section 8 of the Plan.
“
Director
”
means a member of the Board, or a member of the board of directors of an
Affiliate.
“
Disabled
”
means a condition under
which a Participant --
(a) is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, or
(b) is,
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a continuous
period of not less than 12 months, received income replacement benefits for a
period of not less than 3 months under an accident or health plan covering
employees of the Company.
“
Eligible
Person
” means any Consultant, Director, or Employee.
“
Employee
”
means any person whom the Company or any Affiliate classifies as an employee
(including an officer) for employment tax purposes, whether or not that
classification is correct. The payment by the Company of a director’s
fee to a Director shall not be sufficient to constitute “employment” of such
Director by the Company.
“
Employer
”
means the Company and each Subsidiary and Affiliate that employs one or more
Participants.
“
Fair
Market Value
” means the fair market value of the Company Stock as of such
date based on the then prevailing prices of the Company Stock on a Principal
Exchange.
“
Grant
Date
” means the later of (i) the date designated as the “Grant Date”
within an Award Agreement, and (ii) date on which the Committee determines the
key terms of an Award, provided that as soon as reasonably practical thereafter
the Committee both notifies the Eligible Person of the Award and enters into an
Award Agreement with the Eligible Person.
“
Involuntary
Termination
”
means termination of a Participant’s Continuous Service under the
following circumstances occurring on or after a Change in
Control: (i) termination without Cause by the Company or an Affiliate
or successor thereto, as appropriate; or (ii) voluntary termination by the
Participant within one year following (A) a material reduction in the
Participant’s job responsibilities, provided that neither a mere change in title
alone nor reassignment to a substantially similar position shall constitute a
material reduction in job responsibilities; (B) an involuntary relocation of the
Participant’s work site to a facility or location more than 60 miles from the
Participant’s principal work site at the time of the Change in Control; or (C) a
material reduction in Participant’s total compensation other than as
part of an reduction by the same percentage amount in the compensation of all
other similarly-situated Employees or Directors.
“
Option
”
means a right to purchase Company Stock granted under the Plan, at a price
determined in accordance with the Plan.
“
Participant
”
means any Eligible Person who receives an Award.
“
Performance
Awards
” mean Awards granted pursuant to Section 9.
“
Performance
Unit
” means an Award granted pursuant to Section 9(a) of the Plan which
may be paid in cash, in Shares, or such combination of cash and Shares as the
Committee in its sole discretion shall determine.
“
Person
”
means any natural person, association, trust, business trust, cooperative,
corporation, general partnership, joint venture, joint-stock company, limited
partnership, limited liability company, real estate investment trust, regulatory
body, governmental agency or instrumentality, unincorporated organization or
organizational entity.
“
Plan
”
means this Company 2009 Stock Incentive Plan.
“
Principal
Exchange
” means the New York Stock Exchange, the American Stock Exchange,
NASDAQ or such other stock exchange as the Company Stock is then listed for
trading.
“
Recapture
”
has the meaning set forth in Section 15 of the Plan.
“
Rescission
”
has the meaning set forth in Section 15 of the Plan.
“
Reimbursement
”
has the meaning set forth in Section 16 of the Plan.
“
Restricted
Share
” means Company Stock awarded under Section 7.
“
Restricted
Share Unit
” or “
RSU
”
means a right granted to a Participant to receive Company Stock or cash awarded
under Section 7.
“
Retirement
”
means a Participant’s termination of employment after age 65.
“
Share
”
means a share of common stock of the Company, as adjusted in accordance with
Section 13 of the Plan.
“
SAR
”
or “
Share
Appreciation Right
” means a right to receive amounts awarded under
Section 6.
“
Unrestricted
Shares
” mean Shares awarded pursuant to Section 7 of the
Plan.
“
Withholding
Taxes
” means the aggregate minimum amount of federal, state, local and
foreign income, payroll and other taxes that the Company and any Affiliates are
required to withhold in connection with any Award.
GENERAL
FINANCE CORPORATION
2009
STOCK INCENTIVE PLAN
_______________________________________
Appendix
II: U.S. Sub-Plan
_______________________________________
This
Appendix II applies to any Awards that are made to Eligible Persons who are
residents of the United States of America (“
U.S.
”)
and who are or may become subject to U.S. tax (i.e. income tax and/or social
security tax) as a result of Awards granted under the Company 2009 Stock
Incentive Plan (the “
Plan
”). Terms
herein that begin with initial capital letters have the special definition set
forth in the Plan.
This
Appendix II shall be read in conjunction with the Plan and is subject to the
terms and conditions of the Plan; provided that, to the extent that the terms
and conditions of the Plan differ from or conflict with the terms of this
Appendix II, the following terms of this Appendix II shall prevail:
A.
Additional
or Modified Definitions
.
Appendix I of the
Plan shall be modified as follows:
“
Code
”
means the Internal Revenue Code of 1986, as amended.
“
Committee
”
shall be modified to mean (i) with respect to any decision involving an Award
intended to satisfy the requirements of Section 162(m) of the Code, a committee
consisting of two or more Directors of the Company who are “outside directors”
within the meaning of Code Section 162(m), and (ii) with respect to any decision
relating to a Reporting Person, a committee consisting of solely of two or more
Directors who are disinterested within the meaning of Rule 16b-3.
“
Exchange
Act
”
means the
Securities Exchange Act of 1934, as amended.
“
Incentive
Stock Option
” or “
ISO
”
means, an Option that qualifies for favorable income tax treatment under Code
Section 422.
“
Non-ISO
”
means an Option not intended
to qualify as an Incentive Stock Option, as designated in the applicable Award
Agreement.
“
Reporting
Person
”
means an
Employee, Director, or Consultant who is subject to the reporting requirements
set forth under Rule 16b-3
“
Rule
16b-3
”
means Rule
16b-3 promulgated under the Exchange Act, as amended from time to time, or any
successor provision.
“
Ten
Percent Holder
” means a person who owns (within the meaning of Code
Section 422) stock representing more than ten percent (10%) of the combined
voting power of all classes of stock of the Company.
B.
Eligibility
. Section
4(a) of the Plan shall be modified by inserting the following sentence at the
end thereof:
Notwithstanding
the foregoing, a Person shall not be an Eligible Person with respect to Options
or SARs if they are classified as an Employee solely by an entity that is a
“parent corporation” (within the meaning of Code Section 424) of the
Company.
C.
Payment
of Exercise Price
. In order to ensure compliance with the
Sarbanes-Oxley Act of 2002, Section 5(b) of the Plan shall be modified
by inserting the
following sentence at the end thereof:
Notwithstanding
any other provision of the Plan to the contrary, no Participant who is a
Director or an “executive officer” of the Company within the meaning of Section
13(k) of the Exchange Act shall be permitted to make payment with respect to any
Awards granted under the Plan, or continue any extension of credit with respect
to such payment with a loan from the Company or a loan arranged by the Company
in violation of Section 13(k) of the Exchange Act.
D.
Authorization
for ISOs
.
In order to
permit the granting of ISOs, the Section 5 of Plan shall be modified by adding
the following subsection (f) at the end thereof:
(f)
Special ISO
Provisions
. The following provisions shall control any grants
of Options that are denominated as ISOs.
(i)
Grants of
ISOs
. The Committee may grant ISOs only to Employees (including
officers who are Employees) of the Company or an Affiliate that is a “parent
corporation” or “subsidiary corporation” within the meaning of Section 424 of
the Code. Each Option that is intended to be an ISO must be
designated in the Award Agreement as an ISO, provided that any Option designated
as an ISO will be a Non-ISO to the extent the Option fails to meet the
requirements of Code Section 422. In the case of an ISO, the
Committee shall determine the acceptable methods of payment on the Date of Grant
and it shall be included in the applicable Award Agreement.
(ii)
Maximum
Limit
. The number of Shares that are available for ISO Awards
shall be determined, to the extent required under the Code, by reducing the
number of Shares designated in Section 3 of the Plan by the number of Shares
issued pursuant to Awards, provided that any Shares that are issued under
the Plan and forfeited back to the Plan shall be available for issuance
pursuant to future ISO Awards.
(iii)
$100,000
Limit
. To the extent that the aggregate Fair Market Value of
Shares with respect to which Options designated as ISOs first become exercisable
by a Participant in any calendar year (under this Plan and any other plan of the
Company or any Affiliate) exceeds U.S. $100,000, such excess Options shall be
treated as Non-ISOs. For purposes of determining whether the U.S.
$100,000 limit
is
exceeded, the Fair Market Value of the Shares subject to an ISO shall be
determined as of the Grant Date. In reducing the number of Options
treated as ISOs to meet the U.S. $100,000 limit, the most recently granted
Options shall be reduced first. In the event that Section 422 of the
Code is amended to alter the limitation set forth therein, the limitation of
this paragraph shall be automatically adjusted accordingly.
(iv)
Grants to 10%
Holders
. In the case of an Incentive Stock Option granted to
an Employee who is a Ten Percent Holder on the Date of Grant, the term of the
Incentive Stock Option shall not exceed five years from the Date of Grant, and
the exercise price shall be at least 110% of the Fair Market Value of the
underlying Shares on the Grant Date. In the event that Section 422 of
the Code is amended to alter the limitations set forth therein, the limitation
of this paragraph shall be automatically adjusted accordingly.
(v)
Substitution of
Options
. Notwithstanding any other provisions of the Plan, in
the event the Company or an Affiliate acquires (whether by purchase, merger or
otherwise) all or substantially all of outstanding capital stock or assets of
another corporation or in the event of any reorganization or other transaction
qualifying under Code Section 424, the Committee may, in accordance with the
provisions of that Section, substitute ISOs for ISOs under the plan of the
acquired company provided (i) the excess of the aggregate Fair Market Value of
the Shares subject to an ISO immediately after the substitution over the
aggregate exercise price of such shares is not more than the similar excess
immediately before such substitution, and (ii) the new ISO does not give
additional benefits to the Participant, including any extension of the exercise
period.
(vi)
Notice of Disqualifying
Dispositions
. By executing an ISO Award Agreement, each
Participant agrees to notify the Company in writing immediately after the
Participant sells, transfers or otherwise disposes of any Shares acquired
through exercise of the ISO, if such disposition occurs within the earlier of
(i) two years of the Grant Date, or (ii) one year after the exercise of the ISO
being exercised. Each Participant further agrees to provide any
information about a disposition of Shares as may be requested by the Company to
assist it in complying with any applicable tax laws.
E.
SARs
. Section
6 of the Plan shall be modified through addition of the following sentence at
the end of Section 6(d):
Any SAR
granted in tandem with an ISO will contain such terms as may be required to
comply with the provisions of Code Section 422.
F.
Restricted
Shares or RSUs.
Section 7 of the Plan shall be modified by
adding the following paragraph at its end:
(g)
Section 83(b)
Elections
. A Participant may make an election under Code
Section 83(b) (the “
Section 83(b)
Election
”) with respect to Restricted Shares. A
Participant
who has
received RSUs may, within ten days after receiving the RSU Award, provide the
Committee with a written notice of his or her desire to make Section 83(b)
Election with respect to the Shares subject to such RSUs. The
Committee may in its discretion convert the Participant’s RSUs into Restricted
Shares, on a one-for-one basis, in full satisfaction of the Participant’s RSU
Award. The Participant may then make a Section 83(b) Election with
respect to those Restricted Shares; provided that the Participant’s Section
83(b) Election will be invalid if not filed with the Company and the appropriate
U.S. tax authorities within 30 days after the Grant Date of the RSUs replaced by
the Restricted Shares.
G.
|
DSUs
. Section
8 of the Plan shall be modified as
follows:
|
|
Section
8(a) shall be modified through addition of the following sentence at its
end:
|
For any
Participant who is subject to U.S. income taxation, the Committee shall only
authorize deferral elections pursuant to Section 8 (i) under written procedures,
and using written election forms that satisfy the requirements of Code Section
409A, and (ii) shall only be made by Eligible Persons who are Directors,
Consultants, or members of a select group of management or highly compensated
Employees (within the meaning of the Code).
Section
8(e) of the Plan shall be modified through addition of the following at its
end:
For all
DSUs granted to Participants who are U.S. taxpayers, the term “unforeseeable
emergency” shall be interpreted in accordance with Section 409A of the Code, and
the term “dependent” shall be interpreted in accordance with Section 152(a) of
the Code.
Section 8
of the Plan shall be modified through addition of the following at its
end:
(g)
Termination of
Service
. For purposes of Section 8 of the Plan, a
Participant’s “Continuous Service” shall only end when the Participant incurs a
“separation from service” within the meaning of Treasury Regulations
§1.409A-1(h). A Participant shall be considered to have experienced a
termination of Continuous Service when the facts and circumstances indicate that
either (i) no further services will be performed for the Company or any
Affiliate after a certain date, or (ii) that the level of bona fide services the
Participant will perform after such date (whether as an Employee, Director, or
Consultant) are reasonably expected to permanently decrease to no more than 50%
of the average level of bona fide services performed by such Participant
(whether as an Employee, Director, or Consultant) over the immediately preceding
36-month period (or full period of services to the Company and its Affiliates if
the Participant has been providing such services for less than 36
months).
H.
Performance
Awards
. Section 9 of the Plan shall be modified by adding the following
paragraphs and by re-lettering Section 9(b) as Section 9(e):
(b)
Performance Compensation
Awards
. Subject to the limitations set forth in Section 9 and
in this Appendix II.H., the Committee may, at the time of grant of a Performance
Unit, designate such Award as a “
Performance Compensation
Award
” (payable in cash or Shares) in order that such Award constitutes
“qualified performance-based compensation”
under
Code Section 162(m), in which event the Committee shall have the power to grant
such Performance Compensation Award upon terms and conditions that qualify it as
“qualified performance-based compensation” within the meaning of U.S. Code
Section 162(m). With respect to each such Performance Compensation
Award, the Committee shall establish, in writing within the time required under
Code Section 162(m), a “
Performance Period
,”
“
Performance
Measure(s)
”, and “
Performance
Formula(e)
” (each such term being defined below). A
Participant shall be eligible to receive payment in respect of a Performance
Compensation Award only to the extent that the Performance Measure(s) for such
Award is achieved and the Performance Formula(e) as applied against such
Performance Measure(s) determines that all or some portion of such Participant’s
Award has been earned for the Performance Period. As soon as
practicable after the close of each Performance Period, the Committee shall
review and certify in writing whether, and to what extent, the Performance
Measure(s) for the Performance Period have been achieved and, if so, determine
and certify in writing the amount of the Performance Compensation Award to be
paid to the Participant and, in so doing, may use negative discretion to
decrease, but not increase, the amount of the Award otherwise payable to the
Participant based upon such performance
(c)
Limitations on
Awards
. The maximum Performance Award and the maximum
Performance Compensation Award that any one Participant may receive for any one
Performance Period shall not together exceed 250,000 Shares, as adjusted
pursuant to Section 13 below (or, for Performance Units to be settled in cash,
U.S. $250,000.
(d)
Definitions
.
(i) “Performance
Formula” means, for a Performance Period, one or more objective formulas or
standards established by the Committee for purposes of determining whether or
the extent to which an Award has been earned based on the level of performance
attained or to be attained with respect to one or more Performance
Measure(s). Performance Formulae may vary from Performance Period to
Performance Period and from Participant to Participant and may be established on
a stand-alone basis, in tandem or in the alternative.
(ii) “Performance
Measure” means one or more of the following selected by the Committee to measure
Company, Affiliate, and/or business unit performance for a Performance Period,
whether in absolute or relative terms (including, without limitation, terms
relative to a peer group or index): basic, diluted, or adjusted
earnings per share; sales or revenue; earnings before interest, taxes, and other
adjustments (in total or on a per share basis); basic or adjusted net income;
returns on equity, assets, capital, revenue or similar measure; economic value
added; working capital; total stockholder return; and product development,
product market share, research, licensing, litigation, human resources,
information services, mergers, acquisitions, sales of assets of Affiliates or
business units. Each such measure shall be, to the extent applicable,
determined in accordance with generally accepted
accounting
principles as consistently applied by the Company (or such other standard
applied by the Committee) and, if so determined by the Committee, and in the
case of a Performance Compensation Award, to the extent permitted under Code
Section 162(m), adjusted to omit the effects of extraordinary items, gain or
loss on the disposal of a business segment, unusual or infrequently occurring
events and transactions and cumulative effects of changes in accounting
principles. Performance Measures may vary from Performance Period to
Performance Period and from Participant to Participant, and may be established
on a stand-alone basis, in tandem or in the alternative.
(iii) “Performance
Period” means one or more periods of time (of not less than one fiscal year of
the Company), as the Committee may designate, over which the attainment of one
or more Performance Measure(s) will be measured for the purpose of determining a
Participant’s rights in respect of an Award.
I
.
Taxes;
Withholding
. In order to confirm with Code Section 409A,
Section 10 of the Plan shall be modified by inserting the following at the end
thereof:
Notwithstanding
anything to the contrary contained in the Plan, this Sub-Plan or any Award, the
Committee shall have the sole discretion to (i) organize any deferral program,
to require deferral election forms, and to grant or to unilaterally modify any
Award in a manner that complies with the requirements of Code Section 409A, or
(ii) interpret the requirements of the Code, including Code Section 409A, for
purposes of the Plan, the Sub-Plan, and all Awards.