THIS AGREEMENT
(this “ Agreement ”) is made and entered into as
of October 15, 2008, by and between MOBILE MINI, INC., a
Delaware corporation (the “ Company ”), and MARK
E. FUNK (the “ Executive ”). The Company and the
Executive are herein collectively referred to as the “
Parties ”.
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 commencing November 4, 2008.
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants herein
contained, the Parties hereby represent, covenant and agree 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 . The term of the Executive’s employment under
this Agreement shall commence (and the Company’s obligations,
including in respect of payment of salary, benefits and other
amounts, hereunder shall commence) on November 4, 2008 (the
“ Commencement Date ”) and, subject to
termination under Section 5, expiring on December 31,
2009 (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 30, 2009, and on
each December 30th 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 30, 2009 (or the relevant December 30th
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, except as expressly provided herein. 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) During
the Employment Period, the Executive shall serve as an executive
vice president and, commencing on the day following the date that
the Company’s report on Form 10-Q for the quarter ended
September 30, 2008 is filed with the Securities and
Exchange
Commission, the
Chief Financial Officer 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 not inconsistent with such position as may be
assigned from time to time by the Company’s President and/or
Chief Executive Officer.
(b) During
the Employment Period and subject to vacation and other time off,
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 (other than non-profit and charitable organizations, if
such services do not interfere with his performance of his duties
and responsibilities hereunder) 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. Nothing
in this Agreement shall limit the Executive’s right to own up
to five percent (5%) of the outstanding debt or equity securities
of any business organization.
(a)
Base Salary and Bonus . During the Employment Period, the
Company agrees to pay the Executive a base salary at the rate of
$341,250 per annum for fiscal year 2008 and such greater amount as
the Board or the Compensation Committee of the Board (the “
Compensation Committee ”) may from time to time
determine (hereinafter referred to as the “ Base
Salary ”). Executive’s Base Salary shall be
reviewed periodically in conjunction with the Compensation
Committee’s review of executive officer salaries generally.
Such Base Salary shall be payable in accordance with the
Company’s customary practices applicable to its senior
executives, but no less frequently than monthly. 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 ”). Notwithstanding the
foregoing, in respect of the Company’s fiscal year ending
December 31, 2009, subject to the conditions set forth
hereinafter, the Executive shall be paid a bonus (the “
2009 Bonus ”) in the amount of no less than 25% of his
Base Salary for such year. The 2009 Bonus shall be in lieu of and
not in addition to any other cash bonus payable to the Executive in
respect of such fiscal year, except as the Committee in its
absolute discretion may determine. The 2009 Bonus shall be payable
only if the Executive is employed by the Company on
December 31, 2009, unless the Executive’s employment was
terminated prior to December 31, 2009 by the Company without
Cause or by the Executive for Good Reason, in which case the 2009
Bonus shall be paid as if the Executive had remained employed
through December 31, 2009. The 2009 Bonus, if it is payable, shall
be
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paid by the
Company to the Executive after December 31, 2009, but on or
before January 31, 2010.
(b)
Participation in Equity-Based Plans . During the Employment
Period, 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. The parties anticipate that
in respect of fiscal 2009, and subject to action at the discretion
of the Compensation Committee and the Company’s and the
Executive’s performance during relevant periods, the
Executive’s level of participation in (and the value of
awards to the Executive under) the Company’s 2006 Equity
Incentive Plan shall approximate the level (and value) of his
predecessor’s participation therein in respect of 2008 plus
such percentage increase as the Compensation Committee may approve
in respect of overall participation levels by executive officers
generally.
(c)
Employee Benefits . During the Employment Period, 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.
(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.
(e)
Vacation and Sick Leave . The Executive shall be entitled to
annual vacation 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.
(f)
Automobile Allowance . During the Employment Period,
the Company shall pay the Executive a car allowance of $600 per
month, or such greater amount as is approved from time to time by
the Compensation Committee.
(g)
Reimbursement of Moving Costs; Relocation and Commuting
Allowances . The Company shall pay or reimburse the Executive
for reasonable and customary expenses of moving actually incurred
by the Executive in connection with his relocation from New York to
the Phoenix metropolitan area, which amount shall be “grossed
up” to take into effect any tax liability incurred by the
Executive in connection therewith. Commencing
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November 4, 2008, the Company shall pay the
Executive $1,000 per month for six months to offset a portion of
the Executive’s commuting expenses and for three months will
pay the Executive a hotel allowance for lodging in the Phoenix
metropolitan area at a standard business hotel as the Executive
shall reasonably select. If the Executive is terminated under
Section 5(b) hereof or the Executive voluntarily resigns from the
Company prior to December 31, 2009, he shall promptly
reimburse the Company for amounts (including the moving expenses
gross up amount), paid under this subsection (g).
(h)
Restricted Stock Award . On the Commencement Date, the
Company shall award the Executive shares of restricted stock having
a fair market value of $750,000 (the “ Restricted
Stock ”). The Restricted Stock shall be granted under the
Mobile Mini, Inc. 2006 Equity Incentive Plan, as amended to date
(the “ Plan ”), and the Restricted Shares shall
be subject to the terms and provisions of the Plan and the
provisions set forth in a Restricted Stock Agreement substantially
in the form of Exhibit C attached hereto; provided, however,
that in the event that there is any conflict between the terms of
the Plan and the form of Restricted Stock Agreement, on the one
hand, and the terms of this Agreement, on the other hand, as the
same pertain to the Restricted Shares, the terms set forth in this
Agreement shall prevail. The shares of Restricted Stock shall vest
in three equal annual installments on November 4 of each of the
years 2009, 2010 and 2011, subject to the Executive being an
employee of the Company on each such scheduled vesting date. As
used in this clause (h), the “fair market value” of the
Restricted Stock shall be the closing price of the Company’s
common stock on November 4, 2008, as reported by The NASDAQ
Stock Market, Inc. If the number of Restricted Shares would result
in the issuance of a fraction of a share, no fractional share shall
be issued and instead the number of Restricted Shares shall be
increased to the next whole number.
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
and any state or local law. For purposes of this Agreement, “
Disability ” means a physical or mental infirmity
which precludes the Executive from performing substantially all of
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 (unless the
Executive’s condition precludes such a determination) 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
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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 minor 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 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) a
material diminution in Executive’s authority, duties, or
responsibilities;
(ii) a
material 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
or any other material written agreement with the
Executive;
(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; or
(v) any
material change in the geographic location at which the Executive
must perform the services hereunder outside of the greater Phoenix
metropolitan area, which change is made without the
Executive’s consent and which lasts for a period in excess of
sixty (60) days.
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).
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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 if the Company has
been given a period of at least thirty (30) days during which
it can remedy any of the conditions set forth above in clauses
(i) through (v) 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) days prior notice to the Company.
(e)
Termination by Company Without Cause . The Company may
terminate the Executive’s employment hereunder at any time
and for any reason by a written notice, and such termination shall
be effective at the end of the 90 th day following the Company’s giving of such
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
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“
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 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
Executive̵
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