exv10w5






Exhibit 10.5




AMENDED AND RESTATED EXECUTIVE EMPLOYMENT

AND NONCOMPETITION AGREEMENT




     This Amended and Restated Employment and Noncompetition Agreement (“Agreement”) is entered
into between Rental Service Corporation, (the “Company” or “Rental Service Corporation”) and
[                    ] (“Executive”), effective as of                     , 2010.



RECITALS




     WHEREAS, the Company operates its equipment rental business which has store locations
throughout North America (such business as operated by the Company is referred to herein as the
“Business”).



     WHEREAS, the Company’s life-blood is its Confidential Information, including but not limited
to customer databases, marketing and sales objectives and strategies, customer lists, information
regarding existing customer preferences, habits, and needs, information regarding prospective
customers, details of past, pending and contemplated transactions, price lists, pricing policies,
sales data, training materials, and customer proposals, information developed about the Company’s
competitors, systems, strategies, designs, processes, procedures, market data, know-how,
compilations of technical and non-technical data, advertising and promotional plans, and financial
and other projections, which information has been collected over a significant amount of time and
at great effort and expense.



     WHEREAS, the Company would be placed at an unfair competitive disadvantage if Employee were
able to use the Company’s Confidential Information and goodwill for his or her own benefit, or for
the benefit of anyone other than the Company.



     WHEREAS, with the assurances contained in the agreement, the Company desires to employ
Executive as [                    ], in which position he will not only have access to the Company’s
Confidential Information but also will have the duty to expand and improve such information.



     WHEREAS, Executive desires to be employed by the Company in this position and is willing to do
so upon the terms contained herein.



     WHEREAS, the Company and Executive are currently parties to the Executive Employment and
Noncompetition Agreement, dated as of [                    ] which the parties desire to amend and restate
effective as of the date hereof.



 









 





AGREEMENT




     NOW, THEREFORE, as a condition of employment, and for other good and valuable consideration,
including without limitation continued employment and/or promotion or advancement, which Executive
agrees is sufficient consideration for this Agreement, and in consideration of the mutual promises
and covenants set forth below, the Company and Executive agree as follows:



ARTICLE I




EMPLOYMENT



     Section 1.1. Employment & Position. The Company shall employ Executive as
[                    ] at the RSC Headquarters location in Scottsdale, AZ. [Executive shall be a
member of, and shall report to, the Board of Directors of Atlas Copco North America Inc. (to be
renamed                     )]1. During Executive’s employment hereunder, Executive shall devote
all necessary energies, experience, skills, abilities, knowledge and productive time to the
performance of duties under this Agreement and shall not render to others services that interfere
with the performance of his duties with the Company under this Agreement. The rendering of
services to others shall be subject to the approval of the Board.



     Section 1.2. Duties. Executive’s primary responsibilities shall be to perform
those duties customarily performed by the [                    ] of a similar company.



     Section 1.3. Term of Employment. Executive shall be employed as herein set
forth, commencing on the date set forth above and continuing until terminated by either party in
accordance with section 2.5 below (the “Employment Term”).



ARTICLE II




COMPENSATION



     Section 2.1. Base Salary. Executive’s salary (the “Base Salary”) shall be
$[Current Base] per annum for the term of this Agreement and/or as increased, after review by the
Board at the time and in accordance with Company policies as in effect from time to time. Base
Salary shall be payable in accordance with the standard payroll practices of the Company.



     Section 2.2. Variable Compensation. In addition to his Base Salary, Executive
will be eligible to receive Variable Compensation, in accordance with the





 




			
	1	 	For the CEO only.




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Company’s Variable Compensation Plan as in effect from time to time, and which will provide
him with additional incentive opportunity with a target of [___%] of his Base Salary and a maximum
of [___%] of his Base Salary.




     Section 2.3. Equity Incentive. Executive will be offered the opportunity to
participate in the Atlas Copco North America Inc. (to be renamed                     ) Stock Incentive Plan
at such level and on such terms as the Board determines appropriate.



     Section 2.4. Other Benefits. During the Employment Term, Executive shall be
entitled to all benefits and conditions of employment generally provided to other RSC Company
executives, subject to the same eligibility and other reasonable conditions of Company benefit
programs and to country related differences, including, but not limited to, medical, dental, life
insurance, non-qualified deferred compensation programs, sick leave, disability, automobile
allowance (                     per month) or [company provided vehicle] and participation in any retirement
plan. In addition, benefits shall include, but not be limited to [a] not less than
[                    ] weeks’ vacation per year [and (b) an annual tax and financial planning services
allowance of up to [                    ]].



     Section 2.5. Employment Separation.



     (a) Severance Benefits: The Company may, at its sole discretion, terminate
Executive’s employment at any time, provided however, that if the Company severs Executive’s
employment for any reason other than for Cause or if Executive terminates his employment for Good
Reason, the Company shall provide the following severance payments and benefits (collectively
“Severance Benefits”), less all applicable federal and state income and withholding taxes, in
exchange for a full and complete release of all claims against the Company, in the form customarily
used by the Company, executed by Executive:




	 	1.	 	[                    ] months of Base Salary (the “Severance Period”),
plus a pro-rata portion of variable compensation for the calendar year, or if
variable compensation is to be paid quarterly then for the calendar quarter,
in which the severance occurs up to the separation date, such pro rata bonus
to be equal to the variable compensation Executive would have earned had
Executive remained employed through the end of the applicable period (pro
rated based on the number of days employed in such period). Executive’s
entitlement to and the amount of any variable compensation under this Section
2.5(a) (1) shall be determined at the sole discretion of the Company. The
Base Salary shall be payable in accordance with the Company’s regular payroll
practices, and the pro rata variable compensation payments shall be payable at
the time that other variable compensation payments are made under the
applicable Variable Compensation Plan.




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	 	 	 	Notwithstanding the payment schedule described in this paragraph, if
Executive is a Specified Employee (as defined in Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”)) and becomes
entitled to the payment described in this Section 2.5 as a result of a
separation of service as defined by Section 409A(a)(2)(i) of the Code,
then the portion of such payment treated as “separation pay” for purposes
of Section 409A shall not be paid prior to the date which is six (6)
months after the date of the Executive separation from service shall be
accumulated and paid to Executive in a lump sum amount on the first date
of the seventh month following the date of separation from service.
	 
	 	 	 	Executive’s entitlement to the foregoing severance payments is contingent
on his continued compliance with the confidentiality, non-competition and
non-solicitation provisions outlined in Sections 3.1, 3.2, 4.2 and 4.3
herein. Executive understands that if the Company determines that he has
violated the confidentiality provisions, covenant not to compete or
non-solicitation provisions, the Company will not make any further
severance payments, and will be entitled to reimbursement from Executive
of any severance amounts already paid to him, all in addition to any other
remedy to which the Company may.
	 
	 	2.	 	Upon his separation from service, if Executive is eligible
and enrolled in the Company’s medical and dental benefit programs, the Company
will provide the necessary forms, including COBRA notifications, to transfer
the responsibility and right to continue those benefits to Executive, which
under COBRA are typically at his expense, for the time period allowed by law
or under the applicable programs. However, assuming Executive is eligible and
elects to continue those benefits, the Company will continue to pay the same
proportion of Executive’s medical and dental insurance premiums under COBRA as
during active employment (for Executive and eligible dependents) until the
earlier of: (1) the expiration of the Severance Period; or (2) the date
Executive is eligible for medical and dental insurance benefits by another
employer.
	 
	 	3.	 	Upon termination of employment, Executive is not eligible to
continue participation in the Company group life insurance program. The
Company will therefore pay, at the Company’s option, the premiums during the
Severance Period that are either (i) applicable to a conversion of the
coverage (equal to the amount




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	 	 	 	normally provided to an employee without payment by the employee) from
group to individual coverage; or (ii) that will support the same level of
coverage in a term life policy. The company’s obligation under this
sub-section is to provide the required insurance and Executive is not
entitled to a cash payment in substitution thereof.
	 
	 	4.	 	If Executive is not fully vested in the Company’s 401(k)
and/or other retirement/pension plan on the date of separation, the Company
shall pay Executive an amount equal to the unvested portion of such
account(s).
	 
	 	5.	 	The Company on the date of separation will provide
professional outplacement counseling and services consistent with other
Executives at similar compensation levels. No cash lump sum payment in lieu
of outplacement services will be provided to Executive.
	 
	 	6.	 	During the Severance Period, the Company will continue to pay
for Executive’s reasonable association fees related to Executive’s former
duties and responsibilities if and to the extent previously paid by the
Company.
	 
	 	7.	 	The Company shall, except in the case of any termination of
Executive’s employment for Cause, give the Executive no less than 30 days’
prior written notice of termination of employment. In the event the Company
gives such notice, the Executive shall be under no obligation to render
additional services and shall be allowed to seek other employment,
provided that the Severance Period shall be reduced accordingly if
Executive so ceases to provide services to the Company.




“Good Reason” shall mean the occurrence, without Executive’s consent, of any of the following: (i)
a material diminution in, or assignment of duties material inconsistent with Executive’s position
(including status, offices, titles and reporting relationships), (ii) a reduction in Base Salary
that is not part of across-the-board reduction, (iii) a relocation of Executive’s principal place
of business to a location that is greater than fifty (50) miles from its current location or (iv)
the Company’s material breach of the Agreement.




     (b) For Cause. The Company may, at its sole discretion, terminate Executive’s
employment at any time during the Employment Term “For Cause”. The term “For Cause” means: (1)
the failure of Executive to implement or adhere to material policies, practices, or directives of
the Company, including of the Board; (2) conduct of a fraudulent and/or criminal nature; (3) any
action of Executive outside the scope of his



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employment duties that results in material financial harm to the Company, (4) conduct that is
in violation of any provision of this Agreement or any other agreement between the Company or any
of its affiliates and Executive (including any noncompetition, noninterference, nonsolicitation or
confidentiality agreement); or (5) solely for purposes of this Section 2.5 , death or disability
as defined hereinafter.




     (c) Disability. Within the parameters allowed by federal and state law, the Company
reserves the right to terminate Executive’s employment or place him on unpaid leave if Executive is
incapacitated due to physical or mental illness and cannot perform the essential functions of his
job with or without a reasonable accommodation.



     (d) Voluntary Resignation by Executive. Executive shall have the right to terminate
this Agreement at any time. Executive agrees to provide the Company with thirty (30) days prior
written notice of any such intended resignation. The Company’s obligation to pay Executive’s Base
Salary, variable compensation and other benefits shall cease as of Executive’s date of separation.
Executive shall not be entitled to any Severance Benefits if he resigns (other than for Good
Reason).



ARTICLE III




CONFIDENTIAL INFORMATION



     Section 3.1. Confidential Information. Executive’s position with the Company
will, and have, necessarily give him access to, contact with and knowledge of certain trade
secrets, and confidential and proprietary business information of the Company. This information
includes but is not limited to employee information, union information, employment and union
litigation and claim information, marketing and sales objectives and strategies, customer lists,
information regarding existing customer preferences, habits and needs, information regarding
prospective customers, details of past, pending and contemplated transactions, price lists, pricing
policies, sales data, training materials, customer proposals, information developed about Company’s
competitors, systems, strategies, designs, processes, procedures, growth plans, market data,
know-how, compilations of technical and non-technical data, advertising and promotional plans and
strategies, and financial and other projections relating to the Business, which are not generally
known to or readily ascertainable through legitimate means by the public or by competitors of the
Company (hereinafter collectively referred to as “Confidential Information”). Executive shall not
at any time disclose the Confidential Information to anyone, except on a need-to-know basis in
connection with Executive’s duties in carrying out the business of the Company. Executive shall
not use any Confidential Information for his own benefit, or for the benefit of anyone other than
the Company or its affiliates.



     Section 3.2. Ownership of Records, Etc. All records, reports, notes,
compilations or other recorded matter, and copies or reproductions thereof, in whatever



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media form, relating to the Confidential Information of the Company, operations, activities or
business, made or received by Executive during any past employment or future period of employment
with the Company are and shall be the exclusive property of the Company. Executive shall keep the
same at all times in his custody, subject to control by the Company and Executive shall surrender
the same at the end of his employment, if not before. Failure to return such property upon the
request of the Company during Executive’s Employment Term or thereafter shall be a material breach
of this Agreement.




     Section 3.3. Injunctive Relief. Executive acknowledges that (a) the
provisions of Section 3.1 and Section 3.2 are reasonable and necessary to protect the legitimate
interests of the Company, and (b) any violation of Section 3.1 or Section 3.2 will result in
irreparable injury to the Company, the exact amount of which will be difficult to ascertain, and
that the remedies at law for any such violation would not be reasonable or adequate compensation to
the Company for such a violation. Accordingly Executive agrees that if he violates, or under the
then existing circumstances it seems reasonable likely that there may occur a violation of, the
provisions of Section 3.1 or Section 3.2, in addition to any other remedy which may be available at
law or in equity, the Company shall be entitled to specific performance and injunctive relief,
without posting bond or other security, and without the necessity of proving actual damages.



ARTICLE IV




COVENANT NOT TO COMPETE



     Section 4.1. Recitals. Executive acknowledges and agrees that he has
technical and other extensive expertise associated with the Business and is well known in the
equipment rental industry. In addition, Executive has valuable business contacts with employees,
potential employees, clients, and potential clients of the Business and with professionals in the
equipment rental industry. Furthermore, Executive’s reputation and goodwill are an integral part
of the Company’s success throughout the areas where the Business is and will be conducted. If
Executive deprives the Company of any of his goodwill or in any manner uses his reputation and
goodwill in competition with the Company, the Company will be deprived of the benefits it has
bargained for pursuant to this Agreement. Since Executive has the ability to compete with the
Company in the operation of the Business, the Company therefore desires that Executive enter into
this Covenant Not To Compete.



     Section 4.2. Covenant Not to Compete. Executive agrees that during his
employment with Rental Service Corporation and for a period of [                    ] months commencing
immediately after the end of his employment (the “Time Period”), he shall not, unless acting with
the Company’s prior written consent (which may be withheld at the Company’s sole discretion),
directly or indirectly own, manage, join, operate or control, participate in the ownership,
operation or control of, or be connected as a



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director, officer, partner, or consultant, or permit his name to be used in connection with
the following businesses or organizations that rent or lease construction or construction-related
equipment within the United States, Canada and Mexico (collectively “the Territory”): Caterpillar,
United Rentals, Sunbelt Rentals and its parent Ashtead Group plc, Neff Rental, Hertz, Volvo,
National Equipment Services and Maxim Crane Works or, in the alternative, any business or
organization not listed above that rents or leases construction or construction-related equipment
that has gross revenues of $100 million or more, or has a total employee base of 500 employees or
more or that has plans to enter into the construction-related equipment rental or leasing business
in the Territory.



The parties agree that if a court of competent jurisdiction determines that the Time Period for
purposes of this Section 4.2 is unreasonably long and found to be an unenforceable term, the Time
Period for purposes of this Section 4.2 shall be shortened to the maximum duration enforceable
under applicable law.



If a court of competent jurisdiction determines that the Territory is an unreasonable geographic
scope for this provision, the Territory shall be deemed reformed to include the United States and
Canada, excluding Mexico. If a court of competent jurisdiction determines that the Territory of
the United States and Canada is an unreasonable geographic scope for this provision, the Territory
shall be deemed reformed to include the United States.




     Section 4.3. No Solicitation of Customers or Employees. Executive agrees
that:



     (a) During his employment with Rental Service Corporation and for the Time Period, he shall
not, directly or indirectly, call on or solicit or divert or take away from Rental Service
Corporation or any of its affiliates (including by divulging to any competitor or potential
competitor of Rental Service Corporation) any person, firm, corporation, or other entity who is a
customer of Rental Service Corporation or its affiliates and whom Executive had contact with
through any of his employment with Rental Service Corporation.



     (b) During his employment with Rental Service Corporation and for the Time Period, he shall
not, directly or indirectly, solicit employment of any employee of Rental Service Corporation or
any employee of any affiliate of Rental Service Corporation for employment with any entity that
rents or leases construction or construction-related equipment in the Territory as defined in
Section 4.2.



     (c) The parties agree that if a court of competent jurisdiction determines that the Time
Period is unreasonably long and deemed unenforceable as defined herein in Sections 4.3(a) or (b),
the Time Period for purposes of Sections 4.3(a) or (b), as applicable, shall be shortened to the
maximum duration enforceable under applicable law.



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     Section 4.4. Severability of Provisions. In the event that the provisions of
this Section should ever be adjudicated by a court of competent jurisdiction to exceed the time or
geographic or other limitations permitted by applicable law, then such provisions shall be deemed
reformed to the maximum time or geographic or other limitations permitted by applicable law, as
determined by such court in such action. Each breach of the covenants set forth herein shall give
rise to a separate and independent cause of action.



     Section 4.5. Injunctive Relief. Executive acknowledges that (a) the
provisions of Section 4.2 and Section 4.3 are reasonable and necessary to protect the legitimate
interests of the Company, and (b) any violation of Section 4.2 or Section 4.3 will result in
irreparable injury to the Company, the exact amount of which will be difficult to ascertain, and
that the remedies at law for any such violation would not be reasonable or adequate compensation to
the Company for such a violation. Accordingly, Executive agrees that if he violates, or under the
then existing circumstances it seems reasonable likely that there may occur a violation of, the
provisions of Section 4.2 or Section 4.3, in addition to any other remedy which may be available at
law or in equity, the Company shall be entitled to specific performance and injunctive relief,
without posting bond or other security, and without the necessity of proving actual damages.



     Section 4.6. Equitable Tolling. The restrictive time periods referred to in
Sections 4.2 and 4.3 shall be tolled and extended by one month for each month or portion of each
month during which Employee is in violation of the restrictions. If Company initiates legal action
to enforce the restrictions and obtains an injunction against Employee; then the appropriate
restrictive time period(s) will begin to run on the date that the injunction is entered.



ARTICLE V




GENERAL PROVISIONS



     Section 5.1. Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party without the prior written consent of the other
parties except that the Company may, without such consent, assign all such rights and obligations
to a wholly-owned subsidiary or newly created legal entity (or a partnership controlled by the
Company) or subsidiaries of the Company or to a successor in interest to the Company which shall
assume all obligations and liabilities hereunder.



     Section 5.2. Sole and Entire Agreement. This Agreement constitutes the entire
existing agreement between the parties with respect to the subject matter hereof, and completely
and correctly expresses all of the rights and obligations of the parties, except that the parties
acknowledge that a special severance benefit and a special retention benefit have been offered and
accepted by Executive contemporaneously with the Prior Agreement. It is the intent of the parties
that if the conditions set forth in the



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General Terms applicable to the special severance benefit and the special retention benefit
have been fulfilled, Executive shall become entitled to the benefits set forth in the letters
offering the same to him, and such letters, together with the said General Terms shall supersede
this Agreement, but only to the extent that the same are inconsistent herewith. All prior
agreements including but not limited to prior employment agreements, severance agreements and/or
change in control agreements, are completely superseded and revoked. Executive expressly agrees
that reliance on any oral representation(s) is unreasonable.




     Section 5.3. Waivers. The waiver in any particular instance or series of
instances of any term or condition of this Agreement or any breach hereof by any party shall not
constitute a waiver of such term or condition or of any breach thereof in any other instance.



     Section 5.4. Amendment. This Agreement is subject to amendment only by
subsequent written agreement between, and executed by, the parties hereto.



     Section 5.5. Separability. If any one or more provisions, clauses,
paragraphs, subclauses or subparagraphs contained in this Agreement shall for any reason be held to
be invalid, illegal, void or unenforceable, the same shall not affect any other provision, clause,
paragraph, subclause or subparagraph of this Agreement, but this Agreement shall be construed as if
such invalid, illegal, void or unenforceable provision, clause, paragraph, subclause or
subparagraph had never been contained herein.



     Section 5.6. Time Is of the Essence. Time is of the essence in this
Agreement. Any time limit mentioned herein has been carefully considered and represents the agreed
absolute outside limit of time within which the applicable right must be exercised. The parties
may extend such time limit only by mutual agreement in writing.



     Section 5.7. Duration of Obligations. Executive’s obligations under Article
III and Article IV of this Agreement (especially those relating to confidentiality, non-competition
and non-solicitation) shall continue after his employment with the Company is ended, regardless of
the nature or reason for such termination.



     Section 5.8. Attorneys’ Fees. In the event of a dispute, a court or an
arbitrator may award attorneys’ fees to the prevailing party.



     Section 5.9. Captions; Definitions. Any captions of articles, sections,
subsections or paragraphs of this Agreement are solely for the convenience of the parties and are
not a part of this Agreement or to be used for the interpretation of this Agreement or any
provision hereof.



     Section 5.10. Applicable Law. This Agreement shall be construed and
interpreted in accordance with the internal substantive laws, and not the choice of law



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rules of the State of Arizona. Except where this Agreement provides for injunctive relief,
all disputes arising out of or in connection with this Agreement shall be finally settled under the
Rules of Arbitration of the [American Arbitration Association] by a single arbitrator appointed in
accordance with the said Rules.




     Section 5.11. Confidentiality. The parties agree that the terms of this
Agreement are to be held confidential and shall not be disclosed to any other person or entity,
except as required by law or legal process, and except that either party may disclose the terms
thereof to its or his legal counsel or tax advisors.



     Section 5.12. Voluntary Agreement and Legal Counsel. Executive has been
encouraged to review this Agreement with his legal and other expert counsel and has freely entered
into this Agreement.



The signature page follows







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     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement or caused this
Agreement to be duly executed on their respective behalf, by their respective officers thereunto
duly authorized, all effective as of the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	Rental Service Corporation:	 	 	 	Employee:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 






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