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Exhibit 10.25
Execution Copy
BOARD RETENTION AND
CONSULTING AGREEMENT
THIS
BOARD RETENTION AND CONSULTING AGREEMENT (the “
Agreement ”) is made as of August 28, 2006, by and
among Mobile Storage Group, Inc., a Delaware corporation (the
“ Company ”) with an office at 7590 North
Glenoaks Boulevard, Burbank, CA 91504, MSG WC Holdings Corp., a
Delaware corporation (“ Parent ”) with an office
at c/o Welsh, Carson, Anderson & Stowe, 320 Park Avenue, Suite
2500, New York, NY 10022 and Jim Martell, an individual residing at
314 Ringling Pointe Drive, Sarasota, FL 34234 (the “
Consultant ”).
WHEREAS,
the parties wish to set forth the terms and conditions upon which
the Company will retain the Consultant.
NOW
THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties hereto, the parties agree as follows:
1.
Term of Retention; Services .
(a) The Company hereby retains the Consultant, and the Consultant
hereby accepts such retention as a consultant of the Company, upon
the terms set forth in this Agreement. The term of retention of the
Consultant (the “ Term ”) will be effective on
the date hereof and will end on the second anniversary of the date
hereof (the “ Expiration Date ”), unless
extended pursuant to the next sentence of this Section l(a)
or earlier terminated pursuant to Section 5 hereof. The Term
shall automatically extend for successive twelve (12) month periods
commencing on the Expiration Date and each subsequent anniversary
thereof unless either party gives written notice to the other party
of an intention not to extend the Term no less than three (3)
months prior to the Expiration Date or subsequent anniversary
thereof.
(b) During the Term, the Consultant shall serve as a consultant to
the Company, as a member of the Board of Directors of Parent (the
“ Board ”), and as a member of the Executive
Committee of the Board, with commensurate title, duties,
responsibility and status. In his capacity as a consultant
hereunder, the Consultant shall report to the Board.
2.
Extent of Services: Authority .
(a) During the Term, the Consultant shall perform his duties to the
best of his ability and shall use his best efforts to further the
interests of the Company and its subsidiaries. The Company
acknowledges that the Consultant may secure full-time employment
with other persons; provided that such employment does not
otherwise violate the terms hereof.
(b) The Company and the Consultant acknowledge and agree that the
Company shall not exercise general supervision or control over the
time, place or manner in which the Consultant provides services
hereunder, and that in performing services pursuant to this
Agreement the Consultant shall be acting and shall act at all times
as an independent contractor only and not as an employee, agent,
partner or joint venturer of or with Parent, the Company, or any
subsidiary of the Company. The Consultant acknowledges that he is
solely
responsible for the payment of all Federal,
state, local and foreign taxes that are required by applicable laws
or regulations to be paid with respect to the Quarterly Fees (as
defined below).
(c)
The Consultant represents and warrants to the Company and to Parent
(i) that he is able to enter into this Agreement, that his ability
to enter into this Agreement and to fully perform his duties are
not limited to or restricted by any agreements, understandings
instruments, orders, judgments or decrees to which the Consultant
is a party or by which he is bound, (ii) the Consultant is not a
party to or bound by any employment agreement, noncompete agreement
or confidentiality agreement with any other person that would in
any way limit his ability to perform his duties hereunder, and
(iii) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation
of the Consultant, enforceable in accordance with its terms, in
each case except as set forth on Exhibit A hereto.
The Company and Parent likewise represent and warrant that upon the
execution and delivery of this Agreement by the Company and Parent,
this Agreement shall be the valid and binding obligation of Company
and Parent, enforceable in accordance with its terms. For the
purposes of this Agreement, the term “ person ”
means any natural person, corporation, partnership, limited
liability partnership, limited liability company, or any other
entity of any nature.
3.
Quarterly Fees . During the Term, the Company shall pay the
Consultant a quarterly consulting fee of $12,500 (a “
Quarterly Fee ”), which shall be payable on the last
day of each fiscal quarter during the Term; provided that
(i) if the Consultant is engaged hereunder during a fiscal quarter
for less than all of that fiscal quarter, the Quarterly Fee payable
hereunder shall be pro-rated based on the actual number of days the
Consultant was engaged hereunder, and (ii) the Quarterly Fee shall
be reduced in any fiscal quarter by the amount of any fees paid
during such fiscal quarter to the Consultant by the Company or
Parent as consideration for his services as a director of Parent or
member of the Executive Committee of the Board.
4.
Reimbursement of Business Expenses . During the Term, the
Company shall reimburse the Consultant for all reasonable and
necessary out-of-pocket costs incurred or paid by the Consultant in
connection with, or related to, the performance of his services,
duties and responsibilities under this Agreement, in accordance
with reasonable Company policies in effect from time to time and
subject to presentation by the Consultant of documentation, expense
statements, vouchers, and/or such other supporting information as
the Company may request.
5.
T ermination . The Term may be terminated by either
the Company or the Consultant for any reason (and upon such
termination the Consultant shall resign as a member of the Board
and as a member of the Executive Committee of the Board) at any
time during the Term with 60 days’ prior written notice of
such termination to the other party; provided that, in any
event, the Term shall automatically terminate (i) at such time as
the Consultant no longer serves as a member of the Board for any
reason or (ii) upon consummation of a Sale of the Company (as
defined in the Stockholders Agreement, dated as of August 1, 2006,
by and among MSG WC Holdings Corp. and the stockholders party
thereto, as such agreement may be amended or otherwise modified
from time to time). In the event that the Consultant’s
retention shall be terminated (a “ Retention
Termination ”) for any reason by the Company or the
Consultant or otherwise (including expiration hereof) (the date
such Retention Termination occurs, being referred to herein as the
“ Retention Termination Date ”), the Company
shall have
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no further obligations hereunder. Except as
otherwise specifically agreed in writing by the parties hereto, the
termination of the Term or of this Agreement shall not relieve any
of the parties hereto of any obligation arising under this
Agreement prior to termination. For the avoidance of doubt, any
termination by either party upon 60 days’ written notice as
contemplated above, or any non-renewal of the Term under Section
1(a) by either party, shall not be considered a breach by such
party of the terms of this Agreement.
6.
Non-Competition . The Consultant agrees that during the
Consultant’s retention with the Company and its Affiliates,
including the Term, and during the Restricted Period the Consultant
shall not, without the express prior written consent of the Board,
directly or indirectly, whether for his own account or for the
account of any other person, Engage in a Restricted Business that
(i) is, either in whole or in part, doing business within
one-hundred (100) miles of any location at which the Company or any
of its subsidiaries is actually conducting or, to the knowledge of
the Consultant based on the knowledge he would reasonably be
expected to have acquired in the ordinary course of performance of
the Consultant’s duties, was actively contemplating
conducting business as of the Retention Termination Date or (ii)
provides Restricted Services to any person who on the Retention
Termination Date is a current or prospective customer of the
Company or any of its subsidiaries or was a customer during the
twelve (12)-month period preceding the Retention Termination Date.
As used herein, “ Affiliate ” means, with
respect to any person, any other person that, directly or
indirectly through one or more of its intermediaries, controls, is
controlled by or is under common control with such
person.
For
purposes of this Agreement:
(i)
“ Engaging in a Restricted Business ” means
engaging in (whether such engagement be as an individual, officer,
director, employee, proprietor, consultant, partner, member,
manager or investor) any business or operations which primarily
involves the provision of Restricted Services unless solely as a
holder of less than five percent (5%) of the outstanding capital
stock of an entity whose shares are publicly traded on a national
securities exchange or through a national market system,
“Engaging in a Restricted Business” shall not include:
(1) the acquisition, sale, development, ownership, management or
operation of any real property, whether commercial or residential,
or (2) any of the Consultant’s activities undertaken in
connection with his service as a consultant to, or as a member of
the board of directors of, each of the companies listed on
Exhibit A attached hereto.
(ii) “ Restricted Services ” means acquiring,
marketing, leasing, renting or selling containers, containerized
offices, storage trailers, ground level office units and
accommodation units.
(iii) “ Restricted Period ” means one (1) year
from the Retention Termination Date.
7.
Non-Solicitation and Non-Disparagement .
(a)
During the Consultant’s retention with the Company and its
Affiliates, including the Term, and during the Restricted Period,
the Consultant shall not, without the
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express prior written consent of the Board,
directly or indirectly, whether for his own benefit or for the
benefit of any person (other than the Company or any Affiliate of
the Company), (i) hire, offer to hire, divert, entice away, solicit
or in any other manner persuade, or attempt to do any of the
foregoing (each, a “ Solicitation ”), any person
who is an officer or employee of the Company or any of its
subsidiaries to accept employment with a third party or engage in a
Solicitation with respect to any person who is, or was, at any time
within twelve (12) months prior to the Solicitation, an officer,
employee, agent or consultant of the Company or any of its
subsidiaries; or (ii) engage in a Solicitation with respect to (1)
any actual or prospective customer of the Company or any of its
subsidiaries to become a customer of any third party Engaged in a
Restricted Business, or (2) any customer or supplier to cease doing
business with the Company or any of its subsidiaries. For purposes
hereof a “prospective customer” of the Company or any
of its subsidiaries is any potential customer as to which the
Company or any of its subsidiaries has (A) held negotiations or
actually solicited with respect to a business relationship that has
been reduced to “writing”, electronic or otherwise
(i.e., a proposal, term sheet, memorandum of understanding, letter
of intent, proposed contract), or (B) identified as a prospective
client in any budget, business plan, strategic plan or other
internal planning document.
(b)
Neither the Company and its subsidiaries, on the one hand, nor the
Consultant, on the other hand, shall make any negative or
disparaging statements or communications regarding the other
party.
8.
Confidential Information . Under no circumstances and at no
time, during or after the Retention Termination Date, shall the
Consultant in any manner, whether directly or indirectly, use for
his own benefit or the benefit of any other person, nor disclose,
divulge, render or offer, any knowledge or information with respect
to the confidential affairs or plans, trade secrets, know-how or
any other information that the Company or its subsidiaries has
treated or could reasonably be expected to treat as confidential,
proprietary or sensitive information in respect of the conduct or
details of the business of the Company or any subsidiary thereof
(“ Confidential Information ”), except on behalf
of the Company and its subsidiaries in the course of the proper
performance of his duties hereunder. The Consultant acknowledges
and agrees that any and all such Confidential Information will be
received and held by him in a confidential capacity, and that
disclosure of such Confidential Information would pose a direct
threat to the Company and its subsidiaries in the hands of its
competitors. For purposes of this Section 8 , the term
“Confidential Information” shall not include any
information which is generally available to the public other than
as a result of a disclosure by the Consultant. Upon the Retention
Termination Date, or at any time upon the request of the Company,
the Consultant (or his heirs or personal representatives) shall
deliver to the Company all documents and materials containing
Confidential Information, and all documents, materials and other
property belonging to the Company, which in either case are in the
possession or under the control of the Consultant (or his heirs or
personal representatives).
9.
Acknowledgement and Enforcement .
(a)
The parties expressly agree that the restrictions and duration of
the obligations set forth in Sections 6 through 8 of
this Agreement (i) are reasonable and no broader than necessary to
protect the legitimate business interests of the Company and the
goodwill thereof, (ii) do not and will not impose an unreasonable
burden upon the Consultant and (iii) are
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a significant element of the consideration
hereunder. Because Consultant’s services are unique and
because the Consultant has access to Confidential Information, the
parties hereto agree that the Company would suffer irreparable harm
from a breach of Sections 6, 7 , or 8 by the
Consultant and that money damages would not be an adequate remedy
for any such breach of this Agreement. Therefore, in the event a
breach or threatened breach of this Agreement, the Company or its
successors or assigns, in addition to other rights and remedies
existing in their favor, shall be entitled to specific performance
and/or injunctive or other equitable relief from a court of
competent jurisdiction in order to enforce, or prevent any
violations of, the provisions hereof (without posting a bond or
other security).
(b) In the event that, notwithstanding the foregoing, any of the
provisions of Sections 6 through 8 shall be declared
by an arbitration or a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions thereof shall
nevertheless continue to be valid and enforceable as though said
invalid or unenforceable provisions had not been included therein.
In the event that any provision of Sections 6 through
8 shall be declared by a court of competent jurisdiction to
exceed the maximum restrictiveness such court deems reasonable and
enforceable, the term, condition or aspect deemed reasonable and
enforceable by the court shall be incorporated into the applicable
section of this Agreement, shall replace the term, condition or
aspect deemed by the court to be unreasonable and unenforceable,
and shall remain enforceable to the fullest extent permitted by
law.
(c) Each of the parties hereto intends that the covenants of
Section 6
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