EXHIBIT 10.16
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
22nd day of September, 1999, by and between MOBILE MINI, INC., a Delaware
corporation (the "Company"), and XXXXXXXX XXXXXXXXXXXX (the "Executive").
WHEREAS, the Company desires to employ the Executive to serve in the
capacities of Executive Vice President and Chief Financial Officer of the
Company upon the terms and conditions specified in this Agreement and the
Executive desires to serve in the employ of the Company upon such terms and
conditions; and
WHEREAS, the Company and the Executive desire to set forth in a written
agreement the terms and conditions of Executive's employment with the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, it is agreed as follows:
1. Employment. The Company hereby agrees 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. Employment shall be for a term commencing on the date
hereof and, subject to termination under Section 8, expiring three (3) years
from the date hereof. Notwithstanding the previous sentence, this Agreement and
the employment of the Executive shall be automatically extended for successive
one-year periods upon the terms and conditions set forth herein, commencing on
the first anniversary of the date of this Agreement, and on each anniversary
date thereafter, unless either party of this Agreement gives the other party
written notice (in accordance with Section 17) of such party's intention to
terminate this Agreement and the employment of the Executive within the 60 day
period prior to the first anniversary of the date of this Agreement or prior to
each succeeding anniversary date thereafter, as applicable. 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, Service as Director.
(a) The Executive shall serve as Executive Vice President
and Chief Financial Officer of the Company. The Executive shall devote
substantially all of his normal working time to the business and affairs of the
Company and shall perform all duties commensurate with such position(s),
including without limitation the duties described on Exhibit A attached hereto,
and such other related duties and responsibilities consistent with the
Executive's position as may from time to time be reasonably requested by the
Board of Directors of the Company (the "Board").
(b) During the term of this Agreement, the Board shall
(i) nominate the Executive to serve as a member of the Board, (ii) recommend to
the Company's stockholders that they vote for the Executive standing for
election as a member of the Board, and (iii) solicit proxies from the Company's
stockholders that provide for the election of the Executive.
4. Compensation.
(a) During the term of this Agreement, the Company shall
pay to the Executive a base salary of $175,000 per annum, which base salary
shall be reviewed annually by the Board and may be increased or decreased from
time to time by the Board in its sole discretion, and shall be payable at the
times and in the manner consistent with the Company's general policies regarding
compensation of executive employees; provided, that no decrease in base salary
shall exceed the greater of (i) an aggregate amount equal to fifteen percent
(15%) of the Executive's then-current base salary, and (ii) the average
percentage amount by which the base salaries of the Key Executives (hereinafter
defined) are then being reduced. As used herein, the "Key Executives" are two
officers of the Company then serving as the Company's Chairman of the Board,
President and Executive Vice President, excluding the Executive (or, if one
other officer and the Executive serve, among them, in all such positions, then
the term means such other officer). The Board may from time to time authorize
such additional compensation to the Executive, in cash or in property, as the
Board may determine in its sole discretion to be appropriate.
(b) The Executive shall be eligible to participate in any
incentive bonus plan implemented by Company during the term of this Agreement.
(c) The Executive shall receive paid time off per year in
accordance with normal Company policy. In the event of termination of
Executive's employment for any reason, any accumulated but unused vacation days
and sick days shall be forfeited.
(d) Notwithstanding anything to the contrary in any stock
option agreement or other agreement between the Company and the Executive (i)
the Executive shall have the right during the 90-day period following the date
of termination of his employment pursuant to this Agreement for any reason
(other than termination for Cause) to exercise any options to purchase shares of
the Company's capital stock theretofore granted to the Executive ("Options"), to
the extent that such options were exercisable on the date of such termination,
and (ii) all Options shall immediately vest and become exercisable upon a Change
of Control (as hereinafter defined).
(e) The Company shall pay the costs, dues and fees
related to the Executive's membership or other participation in the
organization(s) and activities generally described on Exhibit B hereto and such
other costs, dues and fees as the Board may from time to time approve.
5. Executive Benefits. In addition to the compensation described
in Section 4, during the term of this Agreement the Company shall make available
to the Executive, subject to the terms and conditions of the applicable plans,
including without limitation the eligibility rules thereof, participation for
the Executive and his eligible dependents in all Company-sponsored employee
welfare benefit plans and all plans intended to benefit executives which are
adopted or maintained by the Company.
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6. Expenses. 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.
7. Place of Performance. In connection with his employment by the
Company, the executive shall not be required, except with his consent, to
relocate his principal place of employment outside of the greater Phoenix
metropolitan area. Required travel on the Company's business shall not be deemed
a relocation so long as the Executive is not required to provide his services
outside of the greater Phoenix metropolitan area for more than fifty percent
(50%) of his working days during any consecutive six (6) month period.
8. Termination.
(a) Involuntary Termination. The Executive's employment
hereunder may be terminated by the Company for any reason by written notice.
Such termination shall be effective only if approved by a majority of all of the
members of the Board then serving. The Executive will be deemed for purposes of
this Agreement to have been involuntarily terminated by the Company if the
Executive terminates his employment with the Company under any of the following
circumstances: (i) the Company has materially breached any provision of this
Agreement and within 30 days after notice thereof from the Executive, the
Company fails to cure such breach; (ii) at any time after the Company has
notified the Executive pursuant to Section 2 hereof that the Company intends to
terminate this Agreement (rather than allow the term of this Agreement to renew
automatically); (iii) a successor or assign (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company fails, not later than two business days
immediately prior to the date of occurrence of any such event, to assume
liability under this Agreement or enter into a replacement agreement
satisfactory to Executive; (iv) the Board fails to elect the Executive as
Executive Vice President and Chief Financial Officer of the Company; (v) the
Executive is not elected a member of the Board notwithstanding the due
compliance with subsection 3(b) hereof and, within the 360-day period following
the stockholders meeting at which the Executive was not elected, the Board fails
to elect the Executive to fill a vacancy on the Board; or (vi) the Board elects
to give notice of termination pursuant to this Section 8(a) other than for Cause
(as hereinafter defined) or Disability (as hereinafter defined).
(b) Voluntary Termination. Upon sixty (60) days' prior
notice to the Company, the Executive may voluntarily terminate this Agreement.
The Executive's death or termination by reason of Disability during the term of
the Agreement shall constitute a voluntary termination of employment for
purposes of Section 9. The Executive shall not be entitled to any termination
payments or benefits pursuant to Section 9 hereof following Executive's
voluntary termination of this Agreement; and the provisions of Section 11 hereof
shall survive any such voluntary termination.
(c) Termination for Cause. The Executive's employment
hereunder may be terminated for Cause (defined in Section 9(e) hereof) and such
termination shall be effective upon the Board's issuance of a notice of such
termination.
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(d) Effect of Termination. Subject to Section 9 and any
benefit continuation requirements of applicable laws, in the event the
Executive's employment hereunder is voluntarily or involuntarily terminated for
any reason whatsoever, the compensation and benefits obligations of the Company
under Sections 4 and 5 shall cease as of the effective date of such termination.
9. Termination Payments and Benefits. If the Executive's
employment hereunder is involuntarily terminated by the Company (including any
deemed involuntary termination pursuant to Section 8(a)) other than for Cause
(as defined herein) prior to the end of the term of this Agreement as in effect
from time to time, then the Company shall, subject to subsection 9(a) hereof, be
obligated to pay to the Executive an amount equal to the product of (i) the
greater of (A) the Executive's annual base salary in effect on the day preceding
the date of such termination or (B) the Executive's annual base salary during
the twelve full calendar months preceding the date of such termination, times
(ii) three (3) (such amount hereinafter referred to as the "Termination Payment
Amount").
(a) Condition Precedent to Company's Payment Obligation
(Release of Claims). The Company's obligation to pay the Termination Payment
Amount 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 C 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 Termination Payment Amount if the Executive shall be in
default of his obligations under Section 11 hereof.
(b) Method of Payment. The Termination Payment Amount
shall be payable in eighteen (18) equal monthly payments commencing on the first
day of the month following the month in which the termination shall occur. The
Company's obligation to pay the Termination Payment Amount shall be a general
unsecured obligation of the Company.
(c) Benefits. Upon termination of this Agreement for any
reason, the Company shall be obligated to provide the Executive with medical
insurance and other employee benefits only to the extend required by applicable
law, and the Company shall have no obligation to provide any benefits to the
Executive which the Executive would have been entitled to receive if his
employment had not been terminated.
(d) Termination for Cause. For purposes of this
agreement, "Cause" shall mean:
(i) the willful and continued failure by the
Executive to substantially perform his duties hereunder (other than any such
failure resulting from the Executive's incapacity due to physical or mental
illness), after written demand for substantial performance is delivered by the
Company or the Board to the Executive that specifically identifies the manner in
which the Company or the Board believes the Executive has not substantially
performed his duties;
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(ii) the conviction or plea bargain of the
Executive of any felony involving dishonesty, fraud, theft, embezzlement or the
like;
(iii) the material breach of Section 11 of this
Agreement by the Executive; or
(iv) the Executive willfully engaging in conduct
that is intentionally insubordinate and harmful to the Company, that is not
authorized by the Board or not reasonably within (or which the Executive has no
reason to believe is within) the discretionary authority granted by the
Company's Bylaws or by act of the Board to an officer of the Company serving in
the position in which the Executive is serving, that is contrary to action
authorized by the Board, or that is materially detrimental to the Company.
Any decision to terminate the Executive under clause (i), (ii), (iii)
or (iv) shall require a majority of all of the members of the Board then
serving. Executive shall have 30 days to remedy any failure of substantial
performance of which he is given notice pursuant to clause (i) above. If
remedied to the reasonable satisfaction of the Board, the Board shall withdraw
such notification.
(e) Change of Control.
(i) For purposes of this Agreement, a "Change of
Control" of the Company shall be deemed to occur if:
(A) after the date of this Agreement,
any person or entity, or any group of persons or entities (other than an
Exempted Person or an Exempted Group), becomes the "beneficial owner" (as
defined in the Securities Exchange Act of 1934, as amended from time to time),
directly or indirectly, of 35% or more of combined voting power of the Company's
then outstanding securities; or
(B) the occurrence within any
thirty-six month period during the term of this Agreement of a change in the
Board with the result that the Incumbent Members do not constitute a majority of
the Board. "Incumbent Members" in respect of any thirty six month period shall
mean the members of the Board on the date immediately preceding the commencement
of such thirty-six month period, provided that any person becoming a Director
during such thirty-six month period whose election or nomination for election
was supported by a majority of the Directors who, on the date of such election
or nomination for election, comprised the Incumbent Members shall be considered
one of the Incumbent Members in respect of such thirty-six month period.
For purposes of subsection 9(e)(i)(A), (y) the term "Exempted Person"
shall mean any person or entity which, on the record date for the Company's 1998
annual meeting of stockholders, was the beneficial owner of ten percent (10%) or
more of the Company's voting stock, and (z) the term "Exempted Group" means any
group or entity which includes any Exempted Person.
(ii) Severance Compensation Upon a Change of
Control and Termination of Employment. If (X) a Change of Control of the Company
shall have occurred
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while the Executive is an employee of the Company, and (Y) within six (6) months
from the date of such Change in Control (I) the Company shall terminate the
Executive's employment for any reason (except for the death or Disability of the
Executive or for Cause) or (II) the Executive shall elect to terminate his
employment for any reason, then:
(A) the Company shall (subject to (B)
below) pay the Executive any earned and accrued but unpaid base salary through
the date of termination plus an amount of severance pay equal to the product of
(i) the greater of (A) the Executive's annual base salary in effect on the day
preceding the date on which the Change of Control occurred or (B) the
Executive's annual base salary during the twelve full calendar months preceding
the date on which the Change of Control occurred, times (ii) four (4) (such
amount hereinafter referred to as the "Change of Control Termination Payment
Amount"). The Change of Control Termination Payment Amount payable under this
subsection 9(e) shall be payable in a lump sum on the fourteenth day following
the date of termination hereunder, unless on or before such fourteenth day the
Company shall have delivered to the Executive a standby letter of credit issued
by a financial institution with its principal office located in the continental
United States having combined capital and surplus of at least $100,000,000,
which letter of credit shall (i) have a term of no less than 20 months from its
date of issuance; (ii) be irrevocable; (iii) be to the benefit of the Executive
or his assignee; (iv) permit draws thereunder in an amount up to the full amount
of the unpaid Change of Control Termination Payment Amount upon the receipt by
the issuing bank of a notice from the Executive of the Company's failure to pay
any amount of the Change of Control Termination Payment Amount when due,
together with a draft in the amount to be paid under the letter of credit; and
(vi) permit multiple draws, up to the full amount of the unpaid Change of
Control Termination Payment Amount outstanding from time to time, in which event
the Change of Control Termination Payment Amount payable under this Subsection
9(e) shall be payable in eighteen (18) monthly payments commencing on the first
day of the month following the month in which such letter of credit shall be
issued; and
(B) in the event that the payment,
calculated as provided in (A) above, together with all other payments and the
value of any benefit received or to be received by the Executive in connection
with termination contingent upon a Change in Control of the Company (whether
payable pursuant to the terms of this Agreement or any other agreement, plan or
arrangement with the Company), (i) constitutes a "parachute payment" within the
meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended
("Code") and (ii) such payment, together with all other payments or benefits
which constitute "parachute payments" within the meaning of Section 280G(b)(2)
would result in all or a portion of such payment being subject to excise tax
under Section 4999 or the Code, then the Change of Control Termination Payment
Amount shall be such lesser amount which would not result in any portion of the
severance pay determined hereunder being subject to excise tax under Section
4999 of the Code.
(f) Disability Defined. "Disability" shall mean the
Executive's incapacity due to physical or mental illness to substantially
perform the essential functions of the position on a full-time basis for six (6)
consecutive months and, within thirty (30) days after a notice of termination is
thereafter given by the Company, the Executive shall not have returned to the
full-time performance of the Executive's duties; provided, however, if the
Executive shall not agree with a determination to terminate him because of
Disability, the question of Executive's
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disability shall be subject to the certification of a qualified medical doctor
agreed to by the Company and the Executive or, in the event of the Executive's
incapacity to designate a doctor, the Executive's legal representative. In the
absence of agreement between the Company and the Executive, each party shall
nominate a qualified medical doctor and the two doctors shall select a third
doctor, who shall make the determination as to Disability.
(g) No Obligation to Mitigate. The Executive is under no
obligation to mitigate damages or the amount of any payment provided for
hereunder by seeking other employment or otherwise, and neither the obtaining of
other employment of any other similar factor shall reduce the amount of
severance payment payable hereunder.
10. Post-Termination Assistance. 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 therefor 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 reasonable, related expenses, including travel expenses, and
shall pay the executive a daily per diem comparable to his salary under this
agreement at time of termination (determined for this purpose on a per diem
basis by dividing such salary by 230).
11. Confidential Information, Covenant Not To Compete.
(a) Confidential Information. The Executive agrees that
during his employment with Company and thereafter, the Executive shall not at
any time, directly or indirectly, use or disclose to any person, except the
Company and its directors, officers or employees, the Company's customer lists,
records, statistics, manufacturing or installation processes, trade secrets or
any other information relating to the business, or the plans of the business or
affairs of the Company acquired by Executive in the course of his employment in
any capacity whatsoever, except for information which (i) is publicly available
other than by reason of the breach of this Section 11 (a) by the Executive, or
(ii) is disclosed by the Executive in connection with the performance of his
duties and an officer and/or director of the Company.
(b) Covenant Not to Compete. For a period of either (i)
three (3) years from the date of the termination of his employment with the
Company for any reason other than a termination following a Change of Control or
(ii) eighteen (18) months from the date of termination of his employment with
the Company following a Change of Control, whichever is the case, the Executive
shall not, directly or indirectly, for the Executive's own benefit or for, with
or through any other individual, firm, corporation, partnership or other entity,
whether acting in an individual, fiduciary or other capacity (collectively a
"Person"), own, manage, operate, control, advise, invest in (except as a four
percent or less shareholder of a publicly held company), loan money to, or
participate or assist in the ownership, management, operation or control of or
be associated as a director, officer, employee, partner, consultant, advisor,
creditor, agent, independent contractor or otherwise with, or acquiesce in the
use of the Executive's name by, any Person, within any state in the United
States of America or similar political subdivision of any other country in which
the Company conducts business in at the time of termination of the
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Executive, that is in direct competition with the Company, and shall not solicit
any employee or customer of the Company in connection with the business of any
other Person.
(c) Acknowledgment of Restrictions. The Company and the
Executive acknowledge the restrictions contained in subsections 11(a) and 11(b)
above to be reasonable for the purpose of preserving the Company's proprietary
rights and interests and that the consideration therefor is comprised of the
payments made hereunder and the mutual promises contained herein. If a court
makes a final judicial determination that any such restrictions are unreasonable
or otherwise unenforceable against the Executive, the Executive and the Company
hereby authorize such court to amend this Agreement so as to produce the
broadest, legally enforceable agreement and for this purpose the restrictions on
time period, geographical area and scope of activities set forth in said
subsection 11(a) above are divisible; if the court refuses to do so, the
Executive and the Company hereby agree to modify the provision or provisions
held to be unenforceable to preserve each party's anticipated benefits
thereunder.
(d) Specific Performance; Repayment of Termination
Payment Amount. The Executive hereby acknowledges that the services to be
rendered to Company and the information disclosed and to be disclosed are of a
unique, special and extraordinary character which would be difficult or
impossible for Company to replace or protect, and by reason thereof, the
Executive hereby agrees that in the event he violates any of the provisions of
subsections 11(a) or 11(b) 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 11(a) or 11(b).
The Executive agrees that, if he breaches subsection 11(a) or 11(b), he
shall have forfeited all right to receive any amount of the Termination Payment
Amount and he shall promptly repay to the Company the entire Termination Payment
Amount theretofore paid to him or to his order.
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 and 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 the 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.
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(c) Excepted Inventions. As a matter of record the
Executive has identified on Exhibit D 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 C, the Executive represents that he has made no such inventions and
improvements at the time of signing this Agreement.
13. Indemnification: Litigation.
(a) The Company shall indemnify the Executive to the
fullest extent permitted by the laws of the state of the Company's incorporation
in effect at the relevant time, or certificate of incorporation and by-laws of
the Company, whichever affords the greater protection to the Executive. The
Executive shall be entitled to (i) advancement of expenses to the fullest extent
permitted by law and (ii) the benefits of any insurance policies the Company may
elect to maintain generally for the benefit of its officers and directors
against all costs, charges and expenses, in either case incurred in connection
with any action, suit or proceeding to which he may be made a party by reason of
being a director or officer of the Company.
(b) In the event of any litigation or other proceeding
between the Company and the Executive with respect to the subject matter of this
Agreement, the party which prevails in such litigation or other proceeding shall
reimburse the other for all costs and expenses related to the litigation or
proceeding (including attorney's fees and expenses) incurred by the prevailing
party.
14. Entire Agreement. This Agreement (together with the Exhibits
hereto which are an integral part hereof) supersedes any and all other
agreements (except agreements, if any, relating to stock options granted to the
Executive by the Company), either oral or in writing, between the parties hereto
with respect to the subject matter hereof and contains the entire agreement of
the parties with respect to the subject matter hereof. Except as aforesaid, no
other agreement, statement, promise or representation pertaining to the subject
matter hereof that is not contained herein shall be valid or binding on either
party, and the Company and the Executive expressly agree that this Agreement
supersedes in all respects each and all of the following agreements to which
they are or may be parties, whenever the same were entered into: (i) any
Confidentiality and Proprietary Information Agreement; (ii) any Restrictive
Competition Agreement; and (iii) and Site Access Agreement and Confidential
Information Agreement (including any agreement similarly named in each of the
foregoing cases).
15. Withholding of Taxes. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or other
applicable taxes and withholdings as may be required pursuant to any law or
government regulation or ruling.
16. Successors and Binding Agreement.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and successor (and such successor shall thereafter be
deemed the "Company" for the
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purposes of this Agreement), but will not otherwise be assignable, transferable
or delegable by the Company.
(b) This Agreement will inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributes and legatees.
(c) This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Section 16(a) and 16(b).
17. Notices. All communications hereunder, including without
limitation notices, consents, requests or approvals, required or permitted to be
given hereunder, shall be in writing and be deemed to have been duly given when
hand delivered or dispatched by electronic facsimile transmission (with
transmission and receipt confirmed), or five business days after having been
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, or two business days after having been sent by a nationally
recognized overnight courier service, addressed to the Company (to the attention
of the Secretary of the Company) at its principal executive office and to the
Executive at his principal residence as shown in the records of the Company, or
to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
18. Governing Law; Jurisdiction. The validity, interpretation,
construction and performance of this Agreement will be governed by and construed
in accordance with the substantive laws of the State of Arizona, without giving
effect to the principles of conflict of laws of such State.
19. Validity. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision to any other person or circumstances will not
be affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid or legal.
20. Survival of Provisions. Notwithstanding any other provision of
this Agreement, the parties' respective rights and obligations under Sections
4(d), 8, 9, 10, 11, 12 and 13 shall survive any termination or expiration of
this Agreement or the termination of the Executive's employment for any reason
whatsoever.
21. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing 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
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for convenient reference only and are not to be used for the purpose of
interpreting any provision of this Agreement.
22. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Company:
MOBILE MINI, INC.
By: __________________________________________
Xxxxxxx X. Xxxxxx, Chairman of the Board
Executive:
______________________________________________
Xxxxxxxx Xxxxxxxxxxxx
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EXHIBIT A
Description of Duties and Responsibilities
- All activities, responsibilities and authority related to the position
of Executive Vice President and Chief Financial Officer
- Responsible for accounting functions and financial analysis
- Responsible for human resources and risk management
- Responsible for investor relations
- Responsible for banking and finance
- Responsible for legal issues and litigation
- Member of the Executive Management Committee (EMC) and Board of
Directors
- Reports to the CEO
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EXHIBIT B
List of Organizations/Activities
- Appropriate business and professional organizations
- Professional dues, continuing education and related activities
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EXHIBIT C
Form of Release Agreement
[Form of]
MUTUAL RELEASE
This Mutual Release agreement (the "Release" or the "Agreement") is
made this ____ day of _____________________, _______, by and entered into
between MOBILE MINI, INC., a Delaware corporation (the "Company") and
______________________________ ("Executive").
RECITALS
This Agreement is the mutual release agreement referred to in Section
9(a) of that certain Employment Agreement between the Company and the Executive,
pursuant to which Executive was employed by the Company (as in effect on the
date of the termination of Executive's employment, the "Employment Agreement").
AGREEMENT
In consideration of the Termination Payment Amount pursuant to the
Employment Agreement, the covenants and obligations of the parties thereunder
which survive the termination of Executive's employment with the Company, and
any and all claims each may have against the other, the parties mutually agree
as follows:
1.0 MUTUAL RELEASE AND DISCHARGE
1.1 The parties hereby completely release and forever
discharge each other from any and all past, present or future claims, demands,
obligations, actions, causes of action, rights to damages, costs, losses of
services, expenses and compensation of any nature whatsoever, whether based on a
tort, contract or other theory of recovery, which either party now has, or which
may hereafter accrue or otherwise be acquired on account of, or may in any way
arise out of the Employment Agreement or Executive's service as an officer
and/or director of the Company; provided, however, that the Company does not
intend to, nor shall it be deemed hereby to have, released or discharged any
claim that it may have against Executive or any other person or any entity,
arising from or under (i) any act or failure to act by Executive after the
termination of Executive's employment by the Company; or (ii) any act which is
violative of Article 11 or Article 12 of the Employment Agreement; provided,
further, that Executive does not intend, nor shall he be deemed hereby to have,
released or discharged any claim that he may have against the Company relating
to any failure of the Company to pay any amount due and owing (or which may
hereafter become due and owing) to Executive under the Employment Agreement
(including, without limitation, the Termination Payment Amount).
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1.2 This Release shall also apply to the parties' past,
present and future officers, directors, stockholders, attorneys, agents,
servants, representatives, employees, subsidiaries, affiliates, partners,
successors-in-interest, assigns, heirs and personal representatives.
1.3 Except to the extent set forth in Section 1.1, this
Release on the part of the parties, shall be a fully binding and complete
settlement between both parties of all claims either may have against the other
arising from the employer-employee relationship between the parties (the
"Relationship").
1.4 The parties acknowledge and agree that the Release
set forth above is a mutual general release. The parties expressly waive and
assume the risk of any and all claims for damages relating to the Relationship
that exist as of the date Executive's employment with the Company ended, but of
which the parties do not know or suspect to exist, whether through ignorance,
oversight, error, negligence, or otherwise, and which, if known, would
materially affect the parties' decision to enter into this mutual Release. It is
understood and agreed to by the parties that this mutual Release shall not
constitute an admission and/or denial of liability on the part of either party.
2.0 WARRANTY OF CAPACITY TO EXECUTE AGREEMENT
2.1 The parties executing this Release represent and
warrant that no other person or entity has or has had, any interest in the
claims, demands, obligations, or causes of action referred to in this mutual
Release, except as otherwise set forth herein; that the parties have the sole
right and exclusive authority to execute this mutual Release; and that the
parties have not sold, assigned, transferred, conveyed or otherwise disposed of
any of the claims, demands, obligations or causes of action or defenses or
counterclaims referred to in this mutual Release or that may be available.
3.0 ENTIRE AGREEMENT AND SUCCESSORS-IN-INTEREST
3.1 This mutual Release contains the entire agreement
between the Company and Executive with regard to the matters set forth in it and
shall be binding upon and inure to the benefit of the executors, administrators,
personal representatives, heirs, successors and assigns of each.
4.0 GOVERNING LAW
4.1 This mutual Release shall be governed by the laws of
the State of Arizona, and the parties agree that any action brought to enforce
it shall be brought in Maricopa County Superior Court, and the prevailing party
shall be entitled to collect its court costs and reasonable attorney's fees.
5.0 SEVERABILITY
5.1 The parties agree that if a court should declare any
portion of this Agreement invalid, the remaining portions of this Agreement
shall remain in full force and effect.
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6.0 CONSTRUCTION
6.1 Neither party shall be construed as having drafted
this Release, and any ambiguities found to exist herein shall not be construed
against either party.
DATED this ____ day of __________________________________.
Company:
MOBILE MINI, INC.
____________________________________
Title:______________________________
EXECUTIVE:
____________________________________
[Name]
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EXHIBIT D
List of Inventions and Improvements
17
