EMPLOYMENT AGREEMENT
Exhibit 99.1
THIS AGREEMENT (this “Agreement”) is made and entered into as of the 22nd
day of December, 2009, by and between MOBILE MINI, INC., a Delaware corporation (the
“Company”), and Xxxxxxxxxxx X. Xxxxx (the “Executive”). The Company and the
Executive are hereinafter collectively referred to as the “Parties”.
RECITALS
WHEREAS, the Company and the Executive desire to enter into this Agreement to memorialize the
terms and conditions pursuant to which the Company has engaged the Executive to serve in certain
capacities as an officer of the Company;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the Parties hereby represent, covenant and agree as follows:
AGREEMENT
1. Employment. The Company hereby agrees to continue to employ the Executive and the
Executive hereby agrees to remain in the employ of the Company upon the terms and conditions herein
set forth.
2. Term. This Agreement shall be effective for a term commencing on the date hereof
and, subject to termination under Section 5, expiring on December 31, 2010 (the “Employment
Period”). Notwithstanding the previous sentence, this Agreement, the Employment Period and the
employment of the Executive hereunder shall be automatically extended for successive one year
periods upon the terms and conditions set forth herein, with the first such automatic extension
occurring on December 31, 2009, and on each December 31st thereafter, unless either party to this
Agreement gives the other party written notice (in accordance with Section 14) within the ninety
(90) day period prior to December 31, 2009 (or the relevant December 31st thereafter, as
applicable) of such party’s intention that the Employment Period shall expire at the close of
business on the last day of the then current Employment Period, whereupon, unless earlier
terminated in accordance with the provisions of this Agreement, the Employment Period shall expire
and this Agreement shall cease to have any further force or effect in respect of any period
thereafter. For purposes of this Agreement, any reference to the “term” of this Agreement shall
include the original term and any extension thereof.
3. Duties of the Executive.
(a) The Executive shall serve as a Senior Vice President and General Counsel of the Company
and the Executive agrees to perform such duties and responsibilities customarily associated with
the position, including without limitation the duties and responsibilities as may be assigned from
time to time by the Company’s Chief Executive Officer.
(b) During the Employment Period, the Executive shall devote his normal working time and
attention to the business and affairs of the Company, and, subject to the terms of this Section
3(b) with respect to service on the board of directors of other entities, will not render services
to any other business without the prior written approval of the President of the Company. During
his employment hereunder, the Executive shall not, directly or indirectly, engage or participate in
any business that is competitive in any manner with the business of the Company. Subject to
obtaining the prior express consent or approval of the President of the Company, the Executive may
serve as a member of the board of directors of other entities (other than the board of directors of
a business that is competitive with the business of the Company), provided that such service shall
not interfere with the Executive’s performance of his duties hereunder. The Executive shall
request the consent or approval of the Company’s President of his intention to serve on the board
of directors (or similar governing body) of any company or other entity prior to commencing such
service.
4. Compensation.
(a) Base Salary and Bonus. During the Employment Period, the Company agrees to pay
the Executive a 2009 base salary at the rate of $262,500 per annum or such larger amount as the
Board may from time to time determine (hereinafter referred to as the “Base Salary”).
Executive’s Base Salary shall be reviewed annually. Such Base Salary shall be payable in accordance
with the Company’s customary practices applicable to its senior executives. In addition to the
Base Salary, Executive shall be eligible for an incentive bonus subject to the terms and conditions
of the Company’s incentive bonus plan as in effect from time to time for senior management and as
the Compensation Committee in its discretion may determine (the “Bonus”).
(b) Participation in Equity-Based Plans. The Executive shall be entitled to
participate in all equity-based employee benefit plans maintained from time to time during the term
of this Agreement (including, without limitation, any such plans as may hereafter established by
the Company) for the purpose of providing compensation and/or benefits to executives of the Company
including, but not limited to, the Company’s 2006 Equity Incentive Plan (or any successor plan or
plans) and other bonus or incentive compensation plans. Executive’s 2009 equity grant shall be
$165,000 or such other amount as approved by the Board.
(c) Employee Benefits. The Executive shall be entitled to participate in (including
coverage for the Executive’s eligible dependents under the Company’s medical, dental and similar
welfare benefit plans as applicable) all employee benefit plans, practices and programs maintained
by the Company and made available to employees generally including, without limitation, all
retirement, profit sharing, savings, 401(k), medical, hospitalization, disability, dental, life or
travel accident insurance benefit plans, as well as any plans, practices and programs maintained
generally for senior management including, without limitation, any deferred compensation,
supplemental medical or life insurance plans. The Executive’s participation in such plans,
practices and programs shall be on the same basis and terms as are applicable to senior executives
of the Company generally.
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(d) Other Benefits. The Company shall pay or reimburse the Executive for reasonable
and necessary expenses incurred by the Executive in connection with his duties on behalf of the
Company in accordance with the general policies of the Company. This shall include bar dues,
continuing legal education expenses and related and appropriate legal profession membership fees
for the jurisdictions in which Executive is licensed to practice law.
(e) Vacation and Sick Leave. The Executive shall be entitled to annual vacation in
the greater of three weeks or in accordance with the policies as periodically established by the
Board for other senior executives of the Company. The Executive is also entitled to sick leave
(without loss of pay) in accordance with the Company’s policies as in effect from time to time.
5. Termination. In addition to the expiration of the term of this Agreement pursuant
to Section 2, the Executive’s employment hereunder may be terminated under the following
circumstances:
(a) Disability. The Company may terminate the Executive’s employment upon 30 days
written notice after having established the Executive’s Disability; provided that the
Company exercises reasonable efforts to accommodate such disability in accordance with the
Americans with Disabilities Act. For purposes of this Agreement, “Disability” means a
physical or mental infirmity which impairs the Executive’s ability to perform substantially his
duties for a period of ninety (90) consecutive days. A determination of Disability shall be made
by a physician satisfactory to both the Executive and the Company, which physician’s determination
as to Disability shall be made within ten (10) days of the request therefor and shall be binding on
all parties; provided, however, that if the Executive and the Company do not agree on a physician,
the Executive and the Company shall each select a physician and these two together shall select a
third physician, which third physician’s determination as to Disability shall be binding on all
parties. The Executive shall be entitled to the compensation and benefits provided for under this
Agreement for any period during the term of this Agreement and prior to termination in accordance
herewith relating to Executive’s Disability. Notwithstanding anything contained in this Agreement
to the contrary, until the Termination Date specified in a Notice of Termination (as each term is
hereinafter defined) relating to the Executive’s Disability, the Executive shall be entitled to
return to his position with the Company as set forth in this Agreement in which event no Disability
of the Executive will be deemed to have occurred.
(b) Cause. The Company may terminate the Executive’s employment by written notice for
“Cause.” The Company shall be deemed to have terminated the Executive’s employment for
“Cause” in the event that the Executive’s employment is terminated for any of the following
reasons: (i) the commission of an act of fraud or intentional misrepresentation or an act of
embezzlement, misappropriation or conversion of assets or opportunities of the Company; (ii)
dishonesty or willful misconduct in the performance of duties; or (iii) willful violation of any
law, rule or regulation in connection with the performance of duties (other than traffic violations
or similar offenses); provided, that no act or failure to act shall be considered willful unless
done or omitted to be done in bad faith and without reasonable belief that the action or omission
was in the best interests of the Company. Notwithstanding anything contained in this Agreement to
the contrary, no failure to perform by the Executive after the
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Notice of Termination is given by
the Company shall constitute Cause for purposes of this Agreement.
(c) Good Reason. The Executive may terminate his employment for “Good Reason”,
provided that he gives the Company notice of such Good Reason within a reasonable period (but,
except as provided below, in no event more than 90 days) after he has knowledge of the events
giving rise to the Good Reason. For purposes of this Agreement, “Good Reason” shall mean,
without the Executive’s consent:
(i) the assignment to Executive of material duties that are materially inconsistent with
Executive’s title and responsibilities as contemplated by Section 3(a) of this Agreement;
(ii) a reduction in Executive’s Base Salary (provided, that an “across the board”
reduction in base salary and/or bonus opportunities affecting all of the senior executive employees
of Company (excluding the CEO for this purpose) on a substantially similar basis shall not
constitute “Good Reason”);
(iii) any material breach by the Company of any provision of this Agreement;
(iv) any purported termination of the Executive’s employment for Cause by the Company which
does not comply with the terms of Section 5 of this Agreement;
(v) the failure of the Company to obtain an agreement, satisfactory to the Executive, from any
successor or assign of the Company to assume and agree to perform this Agreement, as contemplated
in Section 10 hereof; or
(vi) the Company requires the Executive to be based at any office outside the greater Phoenix
metropolitan area (a “Relocation”).
The Executive’s right to terminate his employment pursuant this Section 5(c) shall not be
affected by his incapacity due to physical or mental illness if such incapacity occurs after the
event or condition giving rise to the Executive’s right to terminate his employment pursuant to
this Section 5(c).
Notwithstanding anything to the contrary stated above in this Section 5(c) or elsewhere in
this Agreement, the Executive will only be treated as having Good Reason to terminate his
employment pursuant to clauses (i) – (vi) if the Executive has given Company notice and a period of
at least thirty (30) days during which it can remedy any of such conditions and, during such
period, the Company fails to remedy such condition.
(d) Voluntary Termination. The Executive may voluntarily terminate his employment
hereunder at any time upon ninety (90) day prior notice to the Company.
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(e) Termination by Company Without Cause. The Company may terminate the Executive’s
employment hereunder for any reason by a written notice.
(f) Change in Control; Accelerated Vesting of Equity-Based Awards. In certain
circumstances, termination may occur following a Change in Control (as contemplated in Section 6
hereof). For purposes of this Agreement, a “Change in Control” shall mean any of the
following events:
(i) an acquisition (other than directly from the Company) of any voting securities of the
Company (the “Voting Securities”) by any “Person” (as the term person is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), immediately after which such Person has “Beneficial Ownership”
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-five percent (35%)
or more of the then outstanding Shares of the combined voting power of the Company’s then
outstanding Voting Securities; provided, however, in determining whether a Change in Control has
occurred, Shares or Voting Securities which are acquired in a “Non-Control Acquisition” (as
hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A
“Non-Control Acquisition” shall mean an acquisition by (A) an employee benefit plan (or a
trust forming a party thereof) maintained by (1) the Company or (2) any corporation or other Person
of which all of its voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company prior to such acquisition (for purposes of this definition,
a “Subsidiary”, (B) the Company or its Subsidiaries, or (C) any Person in connection with a
“Non-Control Transaction” (as hereinafter defined).
(ii) the individuals who, as of the date of this Agreement are members of the Board (the
“Incumbent Board”), cease for any reason to constitute at least two-thirds of the members
of the Board of Directors of the Company; provided, however, that if the election, or nomination
for election by the Company’s common stockholders, of any new director was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall, for purposes of this Agreement,
be considered as a member of the Incumbent Board; provided, further, however, that no individual
shall be considered a member of the Incumbent Board if such individual initially assumed officer as
a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a “Proxy Contest”) including by
reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or
(iii) the consummation of:
(A) a merger, consolidation or reorganization involving the Company, unless such merger,
consolidation or reorganization is a “Non-Control Transaction.” A “Non-Control
Transaction” shall mean a merger consolidation or reorganization of the Company where (1) the
stockholders of the Company, immediately before such merger, consolidation or reorganization, own
directly or indirectly immediately following such merger, consolidation or reorganization, at
least fifty-one percent (51%) of the combined voting power of the outstanding voting securities of
the corporation resulting from such merger or consolidation
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or reorganization (the “Surviving
Corporation”) in substantially the same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization, (2) the individuals who were
members of the Incumbent Board immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least two-thirds of the members of the
board of directors of the Surviving Corporation, or a corporation beneficially directly or
indirectly owning a majority of the Voting Securities of the Surviving Corporation, and (3) no
Person other than (i) the Company, (ii) any Subsidiary, or (iii) any employee benefit plan (or any
trust forming a part thereof) that, immediately prior to such merger, consolidation or
reorganization, was maintained by the Company, or any Subsidiary;
(B) a complete liquidation or dissolution of the Company; or
(C) the sale or disposition of all or substantially all of the assets of the Company to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur (i) solely
because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Shares or Voting Securities as a result of the acquisition
of Shares or Voting Securities by the Company which, by reducing the number of Shares or Voting
Securities then outstanding, increases the proportional number of shares Beneficially Owned by the
Subject Persons, provided that if a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Shares or Voting Securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any
additional Shares or Voting Securities which increases the percentage of the then outstanding
Shares or Voting Securities Beneficially Owned by the Subject Person, then a Change in Control
shall occur.
Upon a Change in Control, and without regard to whether or not the Executive’s employment
hereunder is terminated in connection therewith, all restrictions on any outstanding equity-based
awards (including, without limitation, restricted stock and performance stock awards) then held by
the Executive shall lapse and all performance targets and goals applicable to such awards in
respect of any past or future period shall be deemed to have been met by the Company and the
Executive, as applicable, for each period relevant to such award and all such equity-based awards
shall become and be deemed to be fully (100%) vested immediately prior to such Change in Control,
and all stock options and stock appreciation rights granted to the Executive shall become fully
(100%) vested and shall become immediately exercisable. In the event of any conflict between this
subsection and any agreement between the Executive and the Company relating to any outstanding
award (whether now existing or hereafter entered into), the provisions of this subsection shall
prevail
(g) Notice of Termination. Any purported termination by the Company or by the
Executive shall be communicated by written Notice of Termination to the other. For purposes of
this Agreement, a “Notice of Termination” shall mean a notice which indicates the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the Executive’s
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employment
under the provision so indicated. For purposes of this Agreement, no such purported termination of
employment shall be effective without such Notice of Termination.
(h)
Termination Date, Etc. “Termination Date” shall mean in the case of the
Executive’s death, his date of death, or in all other cases, the date specified in the Notice of
Termination subject to the following:
(i) if the Executive’s employment is terminated by the Company for Cause or due to
Disability, or by the Company without Cause, the date specified in the Notice of Termination shall
be at least thirty (30) days from the date the Notice of Termination is given to the Executive,
provided that in the case of Disability the Executive shall not have returned to the full-time
performance of his duties during such period of at least thirty (30) days; and
(ii) if the Executive’s employment is terminated for Good Reason, the date specified in the
Notice of Termination shall not be more than thirty (30) days from the date the Notice of
Termination is given to the Company.
6. Compensation Upon Termination. Upon termination of the Executive’s employment
during the term of this Agreement (including any extensions thereof), the Executive shall be
entitled to the following benefits:
(a) Cause, Death or Disability; Voluntary Termination By Executive other than Good Reason. If
the Executive’s employment is terminated by the Company for Cause or Disability or by the Executive
(other than for Good Reason), or by reason of the Executive’s death, the Company shall pay the
Executive (or his estate, as applicable) all amounts earned or accrued hereunder through the
Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii)
reimbursement for any and all monies advanced or expenses incurred in connection with the
Executive’s employment for reasonable and necessary expenses incurred by the Executive on behalf of
the Company for the period ending on the Termination Date, (iii) unused vacation days and paid
holidays as of the termination date, (iv) any bonuses and incentive compensation which at the time
of termination is earned but unpaid under the terms and provisions of the applicable plan, and (v)
any previously earned compensation which the Executive has deferred until separation from service
(but not any other date) (including any interest earned or credited thereon) (collectively,
“Accrued Compensation”). In addition, in connection with the termination of the
Executive’s employment hereunder by the Company for Disability or by reason of the Executive’s
death, the Company shall pay the Executive (or his estate, as applicable), not later than 30 days
(except as otherwise may be required under Section 24(b) of this Agreement if the Executive is a
“specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) following the date of Disability or death, as the case may be, an amount
(which shall be in lieu of any target bonus or other bonus plan amount that might otherwise for any
reason be or be deemed to be payable directly or indirectly in connection with the fiscal year in
which such termination occurred, an amount equal to the product of (I) the average of the cash
bonus amounts (if any) paid by the Company to the Executive in relation to the two fiscal years
immediately preceding the year in which such termination occurs, multiplied by (II) a fraction, the
numerator is the number of days in the year that were elapsed as of the date of the termination of
employment and the
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denominator is 365; provided that if such thirty (30) day period begins in one
calendar year and ends in another, the Executive and/or his beneficiary shall not have the right to
designate the taxable year of payment. In connection with the termination of the Executive’s
employment hereunder by the Company for Disability or by reason of the Executive’s death, all
restrictions on any outstanding equity-based awards (including, without limitation, restricted
stock and performance stock awards) then held by the Executive shall lapse and all performance
targets and goals applicable to such awards in respect of any past or future period shall be deemed
to have been met by the Company and the Executive, as applicable, for each period relevant to such
award and all such equity-based awards shall become and be deemed to be fully (100%) vested
immediately prior to such termination of employment, and all stock options and stock appreciation
rights granted to the Executive shall become fully (100%) vested and shall become immediately
exercisable and the Company shall permit the Executive (or his estate), to exercise the same at any
time during the 90-day period following such termination. In the event of the Executive’s death,
for a period of twelve (12) months from the date of death, the Company shall pay for COBRA benefits
(or the equivalent) for Executive’s surviving spouse and eligible dependents covered by the
Company’s group health plan at the time of Executive’s death. In the event the Executive’s
employment hereunder is terminated due to Disability, the Company shall pay COBRA benefits (or the
equivalent) for the Executive for a period of twelve (12) months from the date of such termination.
The Executive’s entitlement to any other compensation or benefits shall be determined in
accordance with the Company’s employee benefit plans and other applicable programs and practices
then in effect.
(b) Without Cause; For Good Reason. If the Executive’s employment by the Company is
terminated by the Company prior to a Change in Control other than for Cause, death or Disability,
or by the Executive for Good Reason, then the Executive shall be entitled to the benefits provided
below:
(i) the Company shall pay the Executive all Accrued Compensation;
(ii) the Company shall pay the Executive, as severance pay and in lieu of any further salary
for periods subsequent to the Termination Date, in a single payment an amount in cash equal to one
(1) times the sum of (A) the Executive’s Base Salary at the highest rate in effect at any time
within the ninety (90) day period ending on the date the Notice of Termination is given and (B) the
“Payment Amount.” For purposes of this Agreement, the term “Payment Amount” shall mean an
amount which is equal to forty-five percent (45%) of the Executive’s Base Salary in effect during
the year in which the Termination Date shall occur;
(iii) except as may otherwise be determined in accordance with Revenue Ruling 2008-13 (on a
basis consistent in all material respects among all executive officers whose compensation, or the
deductibility thereof by the Company, is affected by Section 162(m) of the Code or any successor
provision thereto) by the Compensation Committee at the time of grant of such equity-based award:
(A) All service-based restrictions on outstanding equity-based awards (including, without
limitation, restricted stock and performance stock awards) then held by the Executive shall lapse;
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(B) All performance targets and goals applicable to such equity-based awards in respect of any
past or future period must continue to be satisfied for each period relevant to such award;
(C) Any equity-based award shall be paid at the time and in the form specified in the Mobile
Mini, Inc. 2006 Equity Incentive Plan or the relevant plan under which such award is outstanding;
and
(D) All stock options and stock appreciation rights granted to the Executive shall become
fully (100%) vested and shall become immediately exercisable and the Company shall permit the
Executive (or his estate), to exercise the same at any time during the 90-day period following such
termination; and
(iv) for a period of twelve (12) months following such termination, the Company shall at its
expense continue on behalf of the Executive and his dependents and beneficiaries the life
insurance, disability, medical, dental and hospitalization benefits which were being provided to
the Executive and other members of senior management of the Company at the time Notice of
Termination was given. The benefits provided in this Section 6(b)(iv) shall be no less favorable
to the Executive, in terms of amounts and deductibles and costs to him, than the coverage provided
the Executive under the plans providing such benefits at the time Notice of Termination is given.
The Company’s obligation hereunder with respect to the foregoing benefits shall be limited to the
extent that the Executive obtains any such benefits pursuant to a subsequent employer’s benefit
plans, in which case the Company may reduce the coverage of any benefits it is required to provide
the Executive hereunder as long as the aggregate coverage of the combined benefit plans is no less
favorable to the Executive, in terms of amounts and deductibles and costs to him, than the coverage
required to be provided hereunder. This Subsection (iv) shall not be interpreted so as to limit any
benefits to which the Executive or his dependents may be entitled under any of the Company’s
employee benefit plans, programs or practices following the Executive’s termination of employment,
including, without limitation, retiree medical and life insurance benefits.
(c) Following a Change in Control. If within one year following the occurrence of a Change of
Control the Executive’s employment by the Company is terminated either by the Company other than
for Cause, death or Disability, or by the Executive for any reason, then the Executive shall be
entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued Compensation;
(ii) the Company shall pay the Executive as severance pay and in lieu of any further salary
for periods subsequent to the Termination Date, in a single payment an amount in cash equal to two
(2) times the sum of (A) the Executive’s Base Salary at the highest rate in effect at any time
within the ninety (90) day period ending on the date the Notice of Termination is given or the
Executive’s Base Salary immediately prior to the Change in Control, if greater, and (B) the Payment
Amount; and
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(iii) for a period of twenty-four (24) months following such termination, the Company shall at
its expense continue on behalf of the Executive and his dependents and beneficiaries the life
insurance, disability, medical, dental and hospitalization benefits which were being provided to
the Executive at the time Notice of Termination is given (or, if the Executive is terminated
following a Change in Control, the benefits provided to the Executive at the time of the Change in
Control, if greater). The benefits provided in this subsection 6(c)(iii) shall be no less
favorable to the Executive, in terms of amounts and deductibles and costs to him, than the coverage
provided the Executive under the plans providing such benefits at the time Notice of Termination is
given or at the time of the Change in Control if more favorable to the Executive. The Company’s
obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the
Executive obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which
case the Company may reduce the coverage of any benefits it is required to provide the Executive
hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to
the Executive, in terms of amounts and deductibles and costs to him, than the coverage required to
be provided hereunder. This subsection 6(c)(iii) shall not be interpreted so as to limit any
benefits to which the Executive or his dependents may be entitled under any of the Company’s
employee benefit plans, programs or practices following the Executive’s termination of employment,
including, without limitation, retiree medical and life insurance benefits.
(d) Time of Payment; Adjustment for Taxes. The amounts provided for in Sections 6(a), 6(b)(i)
and (ii), and 6(c)(i) and (ii) shall be paid within twenty eight (28) days after the Executive’s
Termination Date (except as otherwise may be required under Section 24(b) of this Agreement if the
Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”)); provided that if such twenty eight (28) day period
begins in one calendar year and ends in another, the Executive and/or his beneficiary shall not
have the right to designate the taxable year of payment. In the event the Executive’s severance
and other benefits provided for in this Section 6 constitute “parachute payments” within the
meaning of Section 280G of the Code and, but for this subsection, would be subject to the excise
tax imposed by Section 4999 of the Code, then the Executive’s severance and other benefits under
this Section 6 will be payable either in full or in such lesser amount as would result, after
taking into account the applicable federal, state and local income taxes and the excise tax imposed
by Section 4999, in the Executive’s receipt on an after-tax basis of the greatest amount of
severance and other benefits. All determinations to be made pursuant to this Section 6(d),
including without limitation whether partial payment or payment in full will provide the greatest
after-tax benefit to the Executive and the amount of any such partial payment to be made, shall be
made by an independent public accounting firm selected by the Company and reasonably acceptable to
the Executive and such determinations shall be binding on the Company and the Executive. If the
payments and benefits under Section 6 are required to be reduced, the cash severance shall be
reduced first, followed by a reduction in the accelerated vesting of any equity awards, and last by
the reduction of any other benefits.
(e) No Duty to Mitigate. The Executive shall not be required to mitigate the amount of any
payment, benefit or other Company obligation provided for in this Agreement by seeking other
employment or otherwise and no such payment, benefit or other Company
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obligation shall be offset or
reduced by the amount of any compensation or benefits provided to the Executive in any subsequent
employment.
(f) Clawback. The Company shall have no obligation to make any payment to the Executive
pursuant to any provision of this Section 6 if the Executive shall be in default of his obligations
under Section 13 hereof (Covenant Not To Compete).
7. Post-Termination Assistance; Non-Disparagement. The Executive agrees that after
his employment with the Company has terminated he will provide to the Company, upon reasonable
notice from the Company, such information and assistance in the nature of testifying and the
preparation therefore as may reasonably be requested by the Company in connection with any
litigation, administrative or agency proceeding, or other legal proceeding in which it or any of
its affiliates is or may become a party; provided, however, that the Company agrees to reimburse
the Executive for any reasonably, related expenses, including travel expense, and shall pay the
Executive a daily per diem comparable to his Base Salary under this Agreement at time of
termination (determined for this purpose on a per diem basis by dividing such Base Salary by 230).
The Parties agree that they will not disparage or make false or defamatory comments about the other
party as to all matters. This is a material term of this Agreement.
8. Unauthorized Disclosure. The Executive shall not make any Unauthorized Disclosure.
For purposes of this Agreement, “Unauthorized Disclosure” shall mean disclosure by the
Executive without the consent of the Board to any person, other than an employee of the Company or
a person to whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of his duties as an executive of the Company or as may be legally
required, of any confidential information obtained by the Executive while in the employ of the
Company (including, but not limited to, any confidential information with respect to any of the
Company’s customers or methods of distribution) the disclosure of which he knows or has reason to
believe will be materially injurious to the Company; provided, however, that such term shall not
include the use or disclosure by the Executive, without consent, of any information known generally
to the public (other than as a result of disclosure by him in violation of this Section 8) or any
information not otherwise considered confidential by a reasonable person engaged in the same
business as that conducted by the Company.
9. Indemnification. The Company remains subject to its standard form of
indemnification agreement for officers and directors which was entered into with the Executive to
indemnify the Executive against certain liabilities the Executive may incur as an officer or
director of the Company. A copy of that standard form as in effect on the date of this Agreement
is identified on Exhibit A to this Agreement, and if for any reason the Company and the Executive
have not heretofore executed and delivered such an indemnification agreement, the terms and
provisions of the Company’s standard indemnification agreement are hereby incorporated herein by
reference.
10. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to the benefit of the Company and its
successors and the Company shall require any successor to expressly assume
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and agree to perform
this Agreement in the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place, but this Agreement will not
otherwise be assignable, transferable or delegable by the Company. The term “the Company” as used
herein shall include such successors.
(b) Neither this Agreement nor any right or interest hereunder shall be assignable or
transferable by the Executive, his beneficiaries or legal representatives, except by will or by the
laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable
by the Executive’s legal personal representatives, beneficiaries, designees, executors,
administrators, heirs, distributees, devisees and legatees.
11. Fees and Expenses. The Company shall pay all reasonable legal fees and related
expenses incurred by the Executive as they become due as a result of the Company and the Executive
entering into this Agreement.
12. Assignment of Inventions.
(a) General Assignment. The Executive agrees to assign and hereby does assign to the
Company all right, title and interest in and to any inventions, designs and copyrights made during
employment by Company which relate directly to the business of the Company.
(b) Further Assurances. The Executive shall acknowledge and deliver promptly to the
Company without charge to the Company but at its expense such written instruments and do such other
acts, as may be necessary in the opinion of the Company to obtain, maintain, extend, reissue and
enforce United States and/or foreign letters patent and copyrights relating to the inventions,
designs an copyrights and to vest the entire right and title thereto in the Company or its nominee.
The Executive acknowledges and agrees that any copyright developed or conceived of by the
Executive during them term of the Executive’s employment which is related to the business of the
Company shall be a “work for hire” under the copyright law of the United States and other
applicable jurisdictions.
(c) Excepted Inventions. As a matter of record the Executive has identified on
Exhibit B attached hereto all inventions or improvements relevant to the subject matter of his
engagement by the Company which have been made or conceived or first reduced to practice by the
Executive alone or jointly with others prior to his engagement by the Company, and the Executive
covenants that such list is complete. If there is no such list on Exhibit B, the Executive
represents that he had made no such inventions and improvements as of the time of signing this
Agreement.
13. Covenant Not to Compete.
(a) The Executive agrees that during the term of this Agreement and for two (2) years
subsequent to termination of Executive’s employment with the Company for any reason (the
“Non-Compete Term”) the Executive shall not:
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(i) Either directly or indirectly, for himself or on behalf of or in conjunction with any
other person, persons, company, firm, partnership, corporation, business, group or other entity
(each, a “Person”), engage in any business or activity, whether as an employee, consultant,
partner, principal, agent, representative, stockholder or other individual, corporate, or
representative capacity, or render any services or provide any advice or substantial assistance to
any business, person or entity, if such business, person or entity, directly or indirectly will in
any way compete with the Company (a “Competing Business”). Without limiting the generality
of the foregoing, for purposes of this Section 13, it is understood that Competing Businesses shall
include any business that is in direct competition with the Company; provided, however, that
notwithstanding the foregoing, the Executive may make passive investments in up to four percent
(4%) of the outstanding publicly traded common stock of an entity which operates a Competing
Business.
(ii) Either directly or indirectly, for himself or on behalf of or in conjunction with any
other Person, solicit any Person who is, or who is, at the time of termination of the Executive’s
employment, or has been within six (6) months prior to the time of termination of Executive’s
employment, an employee of the Company or any of its subsidiaries for the purpose or with the
intent of enticing such employee away from the employ of the Company or any of its subsidiaries.
(iii) Either directly or indirectly, for himself or on behalf of or in conjunction with any
other Person, solicit any Person who is, or who is, at the time of termination of the Executive’s
employment, or has been within six (6) months prior to the time of termination of Executive’s
employment, a customer or supplier of the Company or any of its subsidiaries for the purpose or
with the intent of (A) inducing or attempting to induce such Person to cease doing business with
the Company or (B) in any way interfering with the relationship between such Person and the
Company.
(b) Specific Performance; Repayment of Certain Termination Payment Amounts. The
Executive hereby acknowledges that the services to be rendered to the Company hereunder by the
Executive are of a unique, special and extraordinary character which would be difficult or
impossible for the Company to replace or protect, and by reason thereof, the Executive hereby
agrees that in the event he violates any of the provisions of subsection 13(a) hereof, the Company
shall, in addition to any other rights and remedies available to it, at law or otherwise, be
entitled to an injunction or restraining order to be issued by any court of competent jurisdiction
in any state enjoining and restraining the Executive from committing any violation of said
subsection 13(a).
The Executive agrees that, if he breaches subsection 13(a) of this Agreement, he shall have
forfeited all right to receive any amounts payable to him pursuant to subsection 6(b)(ii) and (iii)
or subsection 6(c)(ii) and (iii), as the case may be, and he shall promptly repay to the Company
the entire amount theretofore paid to him or to his order by reason of any of said subsections.
(c) The covenants in this Section 13 are severable and separate, and the unenforceability of
any specific covenant shall not affect the provisions of any other covenant.
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Moreover, in the event
any court of competent jurisdiction shall determine that the scope, time or territorial
restrictions set forth herein are unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent that such court deems reasonable, and the Agreement
shall thereby be reformed to reflect the same.
(d) All of the covenants in this Section 13 shall be construed as an agreement independent of
any other provision in this Agreement, and the existence of any claim or cause of action of the
Executive against the Company whether predicated on this Agreement or otherwise shall not
constitute a defense to the enforcement by the Company of such covenants. It is specifically agreed
that the period following the termination of the Executive’s employment with the Company during
which the agreements and covenants of the Executive made in this Section 13 shall be effective,
shall be computed by excluding from such computation any time during which the Executive is in
violation of any provision of this Section 13.
(e) Notwithstanding any of the foregoing, if any applicable law, judicial ruling or order
shall reduce the time period during which the Executive shall be prohibited from engaging in any
competitive activity described in Section 13 hereof, the period of time for which the Executive
shall be prohibited pursuant to Section 13 hereof shall be the maximum time permitted by law.
14. Notice. For the purposes of this Agreement, notices and all other communications
provided for in the Agreement (including the Notice of Termination) shall be in writing and shall
be deemed to have been duly given when personally delivered or sent by certified mail, return
receipt requested, postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the attention of the
President with a copy to the Lead Director of the Board. All notices and communications shall be
deemed to have been received on the date of delivery thereof or on the third business day after the
mailing thereof, except that notice of change of address shall be effective only upon receipt.
15. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any benefit, bonus, incentive or other plan or
program provided by the Company or any of its subsidiaries and for which the Executive may qualify,
nor shall anything herein limit or reduce such rights as the Executive may have under any other
agreements with the Company or any of its subsidiaries. Amounts which are vested benefits or which
the Executive is otherwise entitled to receive under any plan or program of the Company or any of
its subsidiaries shall be payable in accordance with such plan or program, except as explicitly
modified by this Agreement.
16. Settlement of Claims. The Company’s obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or others.
17. Survival. The agreements and obligations of the Company and the Executive made in
Sections 6, 8, 9, 11, 13, 17 and 18 of this Agreement shall survive the expiration or termination
of this Agreement.
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18. Federal Income Tax Withholding. The Company may withhold from any compensation and
other amounts payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
19. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Arizona, without giving effect to the conflict of law
principles thereof.
20. Severability. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof.
21. Miscellaneous. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing and signed by the
Executive and the Company. No waiver by either party hereto at any time of any breach by the other
party hereto or compliance with any condition or provision of this Agreement to be performed by
such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. Unless otherwise noted, references to “Sections” are to
sections of this Agreement. The captions used in this Agreement are designed for convenient
reference only and are not to be used for the purpose of interpreting any provision of this
Agreement.
22. Entire Agreement. This Agreement (together with the Exhibits hereto and the
Executive’s indemnification agreement with the Company) constitutes the entire agreement between
the Parties and supersedes all prior agreements, understandings and arrangements, oral or written,
between the parties hereto with respect to the subject matter hereof.
23. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which together will constitute one and the same
agreement.
24. Section 409A.
(a) To the extent applicable, it is intended that this Agreement comply with the provisions of
Section 409A of the Code. This Agreement will be administered and interpreted in a manner
consistent with this intent. The Company agrees to take all reasonable steps to ensure that
Executive shall not be subject to any penalties with respect to any payments received hereunder.
In the event that any guidance is issued by the Internal Revenue Service, or if a judicial decision
is rendered, to the effect that arrangements similar to this Agreement do not satisfy the
requirements of Section 409A, the Company and Executive agree to take whatever reasonable actions
may be necessary at such time in order to ensure that (i) the payments under this Agreement shall
be in compliance with Section 409A and (ii) the Executive shall not be subject to any penalty under
Section 409A with respect to his receipt of such payments.
(b) Notwithstanding anything contained herein to the contrary, any payments on account of a
termination of employment that are subject to Section 409A shall not be made
15
until Executive would
be considered to have incurred a “separation from service” from the Company within the meaning of
Section 409A. To the extent required in order to avoid accelerated taxation and/or tax penalties
under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be
provided pursuant to this Agreement during the six-month period immediately following Executive’s
separation from service shall, if Executive is a “specified employee” within the meaning of Section
409A at the time of his separation from service, instead be paid on the first business day after
the date that is six months following Executive’s separation from service (or Executive’s death, if
earlier).
(c) For purposes of this Agreement, each amount to be paid or benefit to be provided to
Executive pursuant to this Agreement shall be construed as a separate identified payment for
purposes of Section 409A.
(d) With respect to expenses eligible for reimbursement under the terms of the Agreement, (i)
the amount of such expenses eligible for reimbursement in any taxable year shall not affect the
expenses eligible for reimbursement in another taxable year (ii) any reimbursements of such
expenses shall be made no later than the end of the calendar year following the calendar year in
which the related expenses were incurred, except, in each case, to the extent that the right to
reimbursement does not provide for a “deferral of compensation” within the meaning of Section 409A;
provided, however that with respect to any reimbursements for any taxes to which Executive becomes
entitled under the terms of this Agreement, the payment of such reimbursements shall be made by the
Company no later than the end of the calendar year following the calendar year in which Executive
remits the related taxes; and (iii) the right to reimbursement is not subject to liquidation or
exchange for any other benefit.
[Signature Page follows; remainder of this page is blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| Company: MOBILE MINI, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, President and Chief Executive Officer | ||||
| Executive: |
||||
| /s/ Xxxxxxxxxxx X. Xxxxx | ||||
| Xxxxxxxxxxx X. Xxxxx | ||||
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EXHIBIT A
[Form of Indemnification Agreement]
The form of the Company’s indemnification agreement has been filed with the Securities and Exchange
Commission as an Exhibit to the Company’s most recent annual report on Form 10-K, and that document
is incorporated by this reference.
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EXHIBIT B
List of Inventions and Improvements
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