EMPLOYMENT AGREEMENT
Exhibit 10.3
This Employment Agreement (this “Agreement”) is entered into as of March 5th, 2008 by
and between Xxxx X. Xxxxxx (the “Executive”) and Mobile Mini, Inc., a Delaware corporation
(the “Company”).
WHEREAS, Executive and Mobile Storage Group, Inc., a California corporation (“MSG”,
which term includes the corporation that survived the migratory merger by which MSG changed its
state of domicile to the State of Delaware) are parties to that Employment Agreement dated as of
January 13, 2004 (as amended, the “Prior Agreement”);
WHEREAS, Company and MSG are parties to that certain Agreement and Plan of Merger, whereby,
among other things, MSG shall merge with and into Company (the “Merger”) with Company
surviving the Merger; and
WHEREAS, Company desires Executive to serve as Senior Vice President of Company following the
Merger for the term and upon the other conditions hereinafter set forth and that the Prior
Agreement be terminated and of no force or effect from and after the effective time of the Merger;
NOW, THEREFORE, in consideration of the agreements and covenants contained herein, the
Executive and the Company hereby agree as follows:
ARTICLE 1
Employment
Employment
Section 1.1 Position; Term; Condition Precedent; Responsibilities. The Company shall
employ the Executive as its Senior Vice President for a term commencing on the later to occur of
(A) the date of the closing of the Merger and (B) the date first above written (the
“Commencement Date”) and end the date first above written (the “Commencement Date”)
and ending on the date this Agreement is terminated pursuant to Article 3. The term of employment
as prescribed in this Section 1.1 is hereinafter called the “Employment Period”.
Subject to the powers, authorities and responsibilities vested in the Board of Directors (the
“Board”) of the Company and in duly constituted committees of the Board under the Delaware
General Corporation Law and the Company’s Certificate of Incorporation and Bylaws, the Executive
shall have the responsibilities assigned to him by the President and Chief Executive Officer of the
Company, including the execution of the business plans, and shall report to the Chief Operating
Officer. The Executive shall also perform such other executive and administrative duties as the
Executive may reasonably be expected to be capable of performing on behalf of the Company and its
subsidiaries, as may from time to time be authorized or requested by the Chief Operating Officer.
The Executive agrees to be employed by the Company in all such capacities for the Employment Period
subject to all the covenants and conditions hereinafter set forth. For clarity and
notwithstanding anything to the contrary herein, Executive and the Company
acknowledge and agree that this Agreement and the rights and obligations provided for herein shall not have effect unless
and until the Merger closes.
Section 1.2 Faithful Performance. During the Employment Period, the Executive shall
perform faithfully the duties assigned to him hereunder to the best of his abilities and devote
substantially all of his business time and attention to the transaction of the business of the
Company and its subsidiaries and not engage in any other business activities except with the
approval of the Board. The Executive covenants,
warrants and represents to the Company that he shall: (i) devote his best efforts to the
fulfillment of his employment obligations; (ii) exercise the highest degree of loyalty and the
highest ethical standards of conduct in the performance of his duties; and (iii) do nothing which
the Executive knows or should know will harm, in any way, the business or reputation of the Company
or any of its subsidiaries.
ARTICLE 2
Compensation
Compensation
Section 2.1 Basic Compensation. As compensation for his services hereunder, the
Company shall pay to the Executive during the Employment Period an annual salary of $195,000 (the
“Base Salary”), payable in installments in accordance with the Company’s normal payment
schedule for senior management of the Company and subject to payroll deductions as may be necessary
or customary in respect of the Company’s salaried employees and five percent of which is paid in
consideration for Executive having signed and being bound by the Exhibit B (the “Confidential and
Proprietary Information Agreement”). The Executive’s annual salary in effect from time to time
under this Section 2.1 is hereinafter called his “Basic Compensation”. Such Basic
Compensation shall be determined on a pro rata basis for any period described in
Article 3 which is not equal to one year.
Section 2.2 Discretionary Incentive Compensation. A discretionary bonus for any year
within the Employment Period may be paid upon the achievement of certain targeted financial results
and operational and strategic objectives as may be determined by the Compensation Committee of the
Board pursuant to such bonus plans as the Committee may in its discretion adapt. The bonus amount,
bonus calculation and targets will be subject to the Employee Summary Agreement then in affect.
Such targets and objectives shall be established in the Company’s, annual budget process, and any
discretionary bonus payable hereunder shall be payable no later than the date discretionary bonuses
are payable to other officers of the Company. Any discretionary bonus paid to Executive hereunder
shall be referred to herein as a “Discretionary Bonus.”
Section 2.3 Participation in Equity Plans. On the date of the closing of the Merger,
the Executive shall receive 18,594 shares of restricted common stock (the “Restricted
Shares”) pursuant to the Mobile Mini, Inc. 2006 Equity Incentive Plan (the “Plan,”
which term shall include any successor or replacement equity-based incentive plan adopted by the
Company). The Restricted Shares shall vest in equal annual installments over the four-years
following the closing of the Merger, and will be subject to the other terms and conditions of an
agreement in a form identical in all material respects to Exhibit C attached hereto. Beginning in
respect of 2009 and in subsequent periods, the Executive shall be eligible to receive options to
acquire shares of common stock and/or shares of restricted common stock pursuant to the Plan, based
upon and
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subject to the discretion of the Board or a committee thereof and the terms of the Plan,
which may be amended from time to time in the sole discretion of the Board or a committee thereof;
all or a portion of such grants or awards may include vesting provisions that are dependent upon
the Executive and/or the Company achieving stated performance criteria.
Section 2.4 Other Employee Benefits. The Executive shall be entitled to participate
in all employee benefit plans, including group health care plans and life insurance plans of the
Company, to take up to three weeks of time off for vacation or illness and to receive all such
fringe benefits (including 401(k) savings plan) as are from time to time made generally available
to the senior management of the Company. Company shall pay Executive a car allowance of up to $650
per month to reimburse the Executive the cost of leasing an automobile, and the Executive shall be
responsible for payment of all costs of operation, including, without limitation, insurance and
mileage in excess of the maximum annual mileage allowance set forth in the lease.
Section 2.5 Expenses Reimbursements. The Company shall reimburse the Executive for
all proper expenses reasonably incurred by him in the performance of his duties hereunder in
accordance with the policies and procedures established by the Company.
ARTICLE 3
Termination of Employment
Termination of Employment
Section 3.1 Events of Termination.
(a) Termination for Disability, Cause or Breach of Article 4. In the event during the
Employment Period there should occur any of the following (as determined by the Board): (i) the
“Disability” (as hereinafter defined) of the Executive, (ii) “Cause” (as
hereinafter defined) of the Executive or (iii) the breach by the Executive of the terms of
Article 4 of this Agreement (as determined by the Board), the Board may elect to terminate
the rights and obligations of the parties hereunder by written notice to the Executive, except as
otherwise provided in this Section 3.1. In the event the Board exercises its election to
terminate the Executive’s employment pursuant to the Section 3.1, the Employment Period
shall terminate effective with such notice, and the Executive shall be entitled to receive any
accrued but unpaid amounts under Section 2.1 and any incurred but unreimbursed expenses
under Section 2.5, in each case through the effective date of such termination, less
standard withholdings for tax and social security purposes. Except as set forth in Section
3.1(b) and as otherwise required under any applicable benefit plan or statute, the Executive
shall not be entitled to receive any other amount under this Agreement.
(b) Termination for Disability, Without Cause or Good Reason. In the case of (i)
termination of this Agreement pursuant to Section 3.1(a)(i), (ii) termination of this
Agreement without Cause or (iii) termination of this Agreement for “Good Reason”, the
Executive shall be entitled to: (A) participate at Executive’s expense in the insurance benefits
described in Section 2.4 for a period of 12 months from the date of the termination of this
Agreement (the “Termination Date”); provided, however, that the Executive’s
right to participate in insurance benefits shall terminate in the event the Executive obtains new
employment and has the ability to obtain comparable insurance benefits through such new employment
and (B) receive
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compensation equal to the Basic Compensation, as determined pursuant to Section
2.1, for a period of 12 months after the Termination Date (the “Continuing Salary”).
In each case such amounts shall be payable in accordance with the Company’s payroll procedures for
senior management and as if the Executive’s employment had continued for such period.
The Company’s obligation to pay the Continuing Salary or any portion thereof shall be
conditioned upon the Executive executing and delivering to the Company a mutual release agreement
substantially in the form of Exhibit A hereto (the “Release Agreement”). The Company shall
be deemed for all purposes to have executed and delivered the Release Agreement to the Executive
immediately upon the Company’s receipt of the Release Agreement duly executed by the Executive. In
addition, the Company shall have no obligation to make any payment of the Continuing Salary if the
Executive shall be in default of his obligations under Section 4.1.
Section 3.2 Death. In the event of the death of the Executive during the Employment
Period, this Agreement shall be deemed immediately terminated and his Designated Successors shall
be entitled to (A) receive any accrued and unpaid compensation under Section 2.1, (B)
receive reimbursement for any unreimbursed expenses under Section 2.5, and (C) receive the
Discretionary Bonus, if any, as determined pursuant to Section 2.2, provided that the
amount of such Discretionary Bonus shall be prorated to the date of termination, in each case less
standard withholdings for tax and social security purposes. In each case, such
amounts shall be payable in accordance with the Company’s payroll procedures for senior
management and as if the Executive’s employment had continued for such period. In addition, family
members of the Executive who were participating in any of the insurance benefits described in
Section 2.4 on the date of the termination of this Agreement shall continue to participate
in such insurance benefits for a period commencing as of the termination of this Agreement and
ending six months from the termination of this Agreement.
Section 3.3 Voluntary Termination by Employee. If the Executive chooses to terminate
his employment with the Company for any reason other than Good Reason, the Executive shall provide
written notice to such effect to the Company’s Board, in which case the Employment Period shall
terminate effective with such notice, and the Executive shall be entitled to receive any accrued
but unpaid amounts under Section 2.1 and any incurred but unreimbursed expenses under
Section 2.5 less standard withholdings for tax and social security purposes, in each case
through the effective date of such termination and, except as required under any applicable benefit
plan or statute, the Executive shall not be entitled to receive any other amount under this
Agreement.
Section 3.4 Definitions of Certain Terms.
(a) “Cause” used in connection with the termination of employment of Executive shall
mean a termination due to a finding by the Board in good faith that such Executive has (i)
committed an act of fraud or intentional misrepresentation or an act of embezzlement,
misappropriation or conversion of assets or opportunities of the Company; (ii) engaged in
dishonesty or willful misconduct in the performance of duties; or (iii) engaged in any 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
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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
notice of termination is given by the Company shall constitute Cause for purposes of this
Agreement.
(b) “Designated Successors” shall mean such person or persons or the executors,
administrators or other legal representatives of such person or persons (and in such order of
priority) as the Executive may have designated in a written instrument filed with the Secretary of
the Company.
(c) “Disability” shall mean (i) the inability of Executive to substantially render to
Company the services required by Company under this Agreement for more than 60 days out of any
consecutive 120-day period because of mental or physical illness or incapacity, as determined by a
physician, mutually agreed upon by Executive (or Executive’s legal guardian or custodian, if
applicable) and Company (a “Physician”), (ii) Executive being “totally disabled” or
“permanently disabled” (or has a comparable condition, if applicable) as such terms are defined in
Company’s long term disability insurance policy in effect at the time of such determination or
(iii) Executive’s development of any illness that is likely to result in either death or a
condition described in clause (ii) above, as determined by a Physician. The date of such
Disability shall be on the last day of such 60-day period.
(d) “Good Reason” used in connection with the termination of employment by Executive
shall mean a termination within 45 days following the date of, as applicable, (A) any of the
following events or (B) the end of any cure period referenced below with respect to any of the
following events:
(i) the assignment to Executive of any material duties that are materially inconsistent with
Executive’s title and position, authority, duties or responsibilities as contemplated by Section
1.1 of this Agreement;
(ii) a reduction in Executive’s Basic Compensation (provided, that an “across the
board” reduction in Basic Compensation and/or bonus opportunities affecting all of the senior
executive employees of Company on a substantially similar basis shall not constitute “Good
Reason”); or
(iii) a relocation of the Executive’s primary place of employment to a location outside of the
metropolitan area in which is located his primary place of employment prior to such relocation (the
Executive hereby acknowledges that his current residence is in Xxx’x Summit, MO and that is primary
place of employment is in Kansas City metro; or
(iv) a material breach by Company of its obligations under this Agreement and where such
breach, if curable, is not cured within 30 days after written notice thereof is provided by
Executive.
Section 3.5 409A Considerations. Executive and Company agree to use commercially
reasonable efforts to cooperate, including by restructuring the timing of payments under this
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Agreement, to avoid the imposition of any additional tax, penalty or interest charge under Section
409A in respect of payments to Executive under this Agreement.
ARTICLE 4
Non-Competition; Confidential Information
Non-Competition; Confidential Information
Section 4.1 Non-Competition.
(a) From the date hereof until From the date hereof until two years after the termination of
the Employment Period (subject to extension as set forth below, the “Non-Competition
Period”), the Executive:
(i) shall not engage, directly or indirectly, in any activities whether as employer,
proprietor, Partner, shareholder (other than the holder of less than 5% of the stock of a
corporation, the securities of which are traded on a national securities exchange or in the
over-the-counter market), director, officer, employee or otherwise, in competition within the
United States, England and Canada with the Company or any of its affiliates;
(ii) shall not solicit, directly or indirectly, any person who is a customer or supplier of
the Company or any of its subsidiaries for the purpose of acquiring, marketing, leasing, renting or
selling mobile or fixed storage containers, storage trailers, cartage trailers, mobile offices or
modular offices (the “Company Business”); and
(iii) shall not induce or actively attempt to persuade any employee of the Company or any of
its subsidiaries to terminate his employment relationship in order to enter into any competitive
employment.
(b) Except as required by law, the Executive shall not, at any time during the Non-Competition
Period or thereafter, make use of any confidential information of the Company or any of its
affiliates, nor divulge any trade secrets or proprietary or confidential information of the Company
or any of its affiliates (including, without limitation, information relating to customers,
suppliers, contracts, business plans
and developments, discoveries, processes, products, systems, know-how, books and records),
except to the extent that such information becomes a matter of public record (other than as a
result of disclosure by the Executive) or is published in a newspaper, magazine or other periodical
available to the general public or as the Company may so authorize in writing; provided, however,
during the Employment Period the Executive shall be permitted to make use of confidential
information in the execution of his duties under this Agreement. When the Executive shall cease to
be employed by the Company, the Executive shall surrender to the Company all records and other
documents obtained by him or entrusted to him during the course of his employment hereunder
(together with all copies thereof) which pertain to the business of the Company or which were paid
for by the Company other than the Executive’s counterparts of this Agreement and employment-related
documents referred to herein.
(c) The covenants contained in clauses (i) and (ii) of Section 4.1(a) shall apply
within all territories in which the Company is actively engaged in the conduct of business during
the Non-Competition Period.
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(d) It is the desire and intent of the parties that the provisions of Sections
4.1(a) and 4.1(b) shall be enforced to the fullest extent permissible under the law
and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if
any particular provision of Section 4.1(a) or 4.1(b) shall be adjudicated to be
invalid or unenforceable, such provision shall be deemed amended to delete therefrom the portion
thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the
operation of such provision in the particular jurisdiction in which such adjudication is made. In
addition, should any court determine that the provisions of Section 4.1(a) or
4.1(b) shall be unenforceable with respect to scope, duration or geographic area, such
court shall be empowered to substitute, to the extent enforceable, provisions similar hereto or
other provisions so as to provide to the Company, to the fullest extent permitted by applicable
law, the benefits intended by Sections 4.1(a) and 4.1(b).
(e) The covenants contained in Section 4.1(b) shall survive the conclusion of the
Executive’s employment by the Company and/or his service as an officer of the Company.
(f) In the event Executive violates any provision of this Agreement, the running of the time
of such provisions so violated shall be automatically suspended upon the date of such violation and
shall resume on the date such violation ceases and all appeals, if any, are resolved.
(g) The Executive acknowledges and agrees that the covenants, obligations and agreements of
the Executive contained herein relate to special, unique and extraordinary matters and that a
violation of any of the terms of such covenants, obligations or agreements will cause the Company
and its successors irreparable injury for which adequate remedies are not available at law. In the
event of a breach or threatened breach by Executive of any provision of this Section 4.1,
the Company and its successors, without proving actual damages, shall be entitled to an injunction
(without the requirement to post bond) restraining Executive from (a) soliciting or interfering
with employees, consultants, independent contractors, customers or suppliers of the Company, its
affiliates or their respective successors, (b) disclosing, in whole or in part, the private, secret
and confidential information described herein, or from rendering any services to any person, firm,
corporation, association or other entity to whom such information has been disclosed, or is
threatened to be disclosed, (c) engaging, participating or otherwise being connected with any
arrangement in competition with the Company’s business described in Section 4.1 or (d)
otherwise violating the provisions of this Section 4.1. Nothing herein contained shall be
construed as prohibiting the Company or its successors from pursuing any other remedies
available to it or them for such breach or threatened breach, including without limitation the
recovery of damages from the Executive.
(h) The Executive acknowledges and agrees that (i) he has and will have a prominent role in
the management, and the development of the goodwill, of the Company and its affiliates and has and
will establish and develop relations and contacts with the principal customers and suppliers of the
Company and its affiliates in the United States and the rest of the world, if any, all of which
constitute valuable goodwill of, and could be used by the Executive to compete unfairly with, the
Company and its affiliates, (ii) the Executive has obtained confidential and proprietary
information, and trade secrets concerning the business and operations of the Company and its
affiliates in the United States and the rest of the world that
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could be used to compete unfairly
with the Company and its affiliates, (iii) the covenants and restrictions contained herein are
intended to protect the legitimate interests of the Company and its affiliates in their respective
goodwill, trade secrets and other confidential and proprietary information, and (iv) the Executive
desires to be bound by such covenants and restrictions.
(i) The Executive represents that his economic means and circumstances are such that the
provisions of this Agreement, including the restrictive covenants herein, will not prevent him from
providing for himself and his family on a basis satisfactory to him and them.
(j) If the Executive raises any question as to the enforceability of any part or terms of this
Agreement, including, without limitation, the restrictive covenants contained herein, the Executive
agrees that he will comply fully with this Agreement unless and until the entry of an award to the
contrary.
ARTICLE 5
Miscellaneous
Miscellaneous
Section 5.1 Notice. Any notices or required or permitted to be given hereunder shall
be sufficient if in writing and delivered personally or sent by registered or certified mail,
return receipt requested, as follows: if to the Executive, to his address as set forth in the
records of the Company, and if to the Company, to the Company’s address set forth below, or to any
other address designated by either party by notice similarly given. Such notice shall be deemed to
have been given upon the personal delivery or such mailing thereof, as the case may be.
Company Address:
Mobile Mini, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx #000
Xxxxx, XX 00000
0000 Xxxxx Xxxxxx Xxxx
Xxxxx #000
Xxxxx, XX 00000
Section 5.2 Authority; No Conflict. The Executive represents and warrants to the
Company that he has full right and authority to execute and deliver this Agreement and to comply
with the terms and provisions hereof and that the execution and delivery of this Agreement and
compliance with the terms and provisions hereof by the Executive will not conflict with or result
in a breach of the terms, conditions or provisions of any agreement, restriction or obligation by
which the Executive is bound.
Section 5.3 Assignment and Succession. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon its respective successors
and assigns, and the
Executive’s rights and obligations hereunder shall inure to the benefit of and be binding upon
his Designated Successors. The Executive may not assign any obligations or responsibilities he has
under this Agreement.
Section 5.4 Headings. The Article, Section, paragraph and subparagraph headings are
for convenience of reference only and shall not define or limit the provisions hereof.
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Section 5.5 Tax Withholding. The Company may withhold from any amounts payable under
this Agreement, including, without limitation, any Discretionary Bonus paid hereunder, all Federal,
state, city or other taxes as may be required pursuant to any law, regulation or ruling.
Section 5.6 Applicable Law. This Agreement shall at all times be governed by and
construed interpreted and enforced in accordance with the internal laws (as opposed to conflict of
laws provisions) of the State of Arizona. Each party hereto irrevocably submits to the exclusive
jurisdiction of any state or Federal court located within the State of Arizona for the purposes of
any suit, action or other proceeding arising out of this Agreement or any transaction contemplated
hereby, and agrees to commence any such action, suit or proceeding only in such courts. Each party
further agrees that service of any process, summons, notice or document by U.S. registered mail to
such party’s respective address set forth herein shall be effective service of process for any such
action, suit or proceeding. Each party irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in such courts, and hereby irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
Section 5.7 Waiver. No waiver of any right or remedy of either party hereto under
this Agreement shall be effective unless in a writing, specifying such waiver, executed by such
party. A waiver by either party hereto of any of its rights or remedies under this Agreement on
any occasion shall not be a bar to the exercise of the same right or remedy on any subsequent
occasion or of any other right or remedy at any time.
Section 5.8 Amendment or Modification. This Agreement may be amended, altered, or
modified only by a writing, specifying such amendment, alteration or modification, executed by all
of the parties.
Section 5.9 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same instrument.
Section 5.10 Entire Agreement; Termination of Prior Agreement. This Agreement
constitutes the entire Agreement between the parties regarding the subject matter hereof, and
supersedes all prior or contemporaneous negotiations, understanding or agreement of the parties,
whether written or oral, with respect to such subject matter. This Agreement replaces and
supersedes the Prior Agreement and the Prior Agreement is hereby terminated and neither Executive
nor any of the corporations party thereto which were acquired directly or indirectly by Company in
connection with the Merger shall have any rights or obligations thereunder from and after the date
of this Agreement.
[This space intentionally left blank; Signature Page follows.]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its respective duly
authorized officer and the Executive has signed this Agreement as of the day and year first above
written.
| EXECUTIVE | ||||||
| /s/ Xxxx X. Xxxxxx | ||||||
| Xxxx X. Xxxxxx | ||||||
| COMPANY | ||||||
| MOBILE MINI, INC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: Xxxxxx X. Xxxxxx | ||||||
| Title: President | ||||||
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