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EXECUTION VERSION Exhibit 10.1 EMPLOYMENT
AGREEMENT THIS EMPLOYMENT
AGREEMENT (this " Agreement ") is dated as of
September 30, 2008 by and between Mobile Mini, Inc., a
Delaware corporation (the " Company "), and Lawrence
Trachtenberg (" Employee "). RECITALS:
WHEREAS, the Company and Employee are
parties to that Employment Agreement dated as of September 22,
1999 (the " Existing Employment Agreement "), pursuant to
which Employee currently serves as Executive Vice President and
Chief Financial Officer of the Company;
WHEREAS, Employee is a member of the
Board of Directors of the Company (the " Board of Directors
" or the " Board "); WHEREAS,
Employee desires to pursue other interests and to devote less than
his full time and energies to the business and affairs of the
Company commencing on January 1, 2009, and Employee and the
Company desire to provide for the termination of the Existing
Employment Agreement as of December 31, 2008, and the
effectiveness of this Agreement thereafter;
WHEREAS, the Company desires to
continue to utilize and avail itself of the skill and experience of
Employee following the Effective Date (herein defined) and during
the term of this Agreement, on the terms of this Agreement as more
fully set forth herein, and to permit Employee the opportunity to
have his outstanding stock options and shares of restricted stock
to vest and become exercisable (which can occur under the relevant
provisions of the Plans (herein defined) only if the participant
thereunder is an employee of the Company or a subsidiary); and
WHEREAS, Employee desires to provide
services to the Company in such manner and for such purposes, upon
the terms and conditions hereinafter set forth. AGREEMENT
NOW, THEREFORE, in consideration of
the mutual covenants and agreements hereinafter set forth, the
parties hereby agree as follows:
1. Engagement and Duties
. Effective as of January 1, 2009 (the " Effective Date
"), the Company engages Employee, and Employee agrees to serve, as
a non-officer employee of the Company to perform corporation
finance planning, hedging strategy, treasury and institutional
investor communication consulting services, including without
limitation, the following services, and such other services as the
Company may reasonably request from time to time (the "
Services "):
(a) Develop
and assist the Company in connection with corporate finance
planning, operational finance implementation, key performance
indicator development and implementation, and institutional
investor communication policies;
(b) Generally
be available at reasonable times and upon reasonable request of the
Chief Executive Officer to consult and meet with the Chief
Financial Officer and the Chief Accounting Officer regarding the
Services; and
(c) Develop
and assist the Company in structuring interest rate hedging
strategies and consult with applicable parties in connection with
implementing the Company’s hedging strategy.
Employee’s
performance of the Services shall be subject to reasonable
instructions from the Chief Executive Officer of the Company.
Employee shall periodically report his progress to the Chief
Executive Officer upon request of the Chief Executive Officer in
such a manner that is reasonably appropriate. During 2009, Employee
shall not be required to devote more than ten (10) hours per month
to the performance of the Services hereunder, and thereafter shall
devote such lesser number of hours as Employee and the Chief
Executive Officer shall in good faith determine to be fair and
reasonable under the Company’s circumstances. Employee shall
not be required to maintain regular office hours at the Company and
may perform the Services on a telecommuting or other remote basis
in his reasonable discretion.
Employee
acknowledges and agrees that (i) the Company shall hire a new
chief financial officer to succeed Employee in that position, and
(ii) the Company and Employee intend that (notwithstanding the
identification and/or hiring of a successor chief financial
officer) Employee shall serve as the Company’s chief
financial officer through the date on which the Company’s
quarterly report on Form 10-Q for the quarter ending
September 30, 2008 is filed with the Securities and Exchange
Commission, and (iii) Employee shall resign as the
Company’s chief financial officer promptly following such
filing (which resignation is hereby tendered, effective upon the
aforementioned filing, which the parties anticipate will be on or
about November 10, 2008), which resignation shall have not be
deemed to cover or be applicable to Employee’s position as
the Company’s executive vice president
2. Term; Termination;
Accelerated Vesting Upon of a Change of Control . The
engagement of Employee by the Company pursuant to this Agreement
shall commence on the Effective Date and continue until
February 28, 2012, or until earlier terminated as provided
herein (the " Term "). The Company may terminate this
Agreement for any reason (other than for "Cause" as herein defined)
at any time upon thirty (30) days prior written notice to
Employee, in which event (a) the Company shall pay to Employee
on the termination date a lump sum amount equal to the remaining
cash compensation scheduled to become due hereunder through
February 28, 2012 and (b) all stock options theretofore
granted and all shares of restricted stock theretofore awarded to
Employee by the Company shall (upon the giving of such notice of
termination) vest, all restrictions on such restricted stock shall
lapse and all such options shall become fully exercisable by
Employee and shall remain fully exercisable by Employee for a
period ending at 5:00 p.m. Arizona time on the 90th day following
the effective date of such termination. Vesting shall occur as
aforesaid upon termination, and such options shall remain
exercisable for such 90-day period, notwithstanding any contrary
term or provision in the Plan, any other plan or any agreement to
which the Company and Employee are parties. Upon such termination
and the acceleration of vesting of all stock options and shares of
restricted stock theretofore issued (and which had not prior to
termination hereunder expired by their terms), the Company shall
have no further liability to Employee hereunder except (i) to
pay all remaining cash compensation as provided above in this
Section 2 and (ii) to reimburse any amounts determined to
be owed to Employee pursuant to Section 3 and/or
Section 4 hereof for expenses incurred through the date of
such termination, within thirty (30) days of receipt of the
listing and
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receipts required pursuant to Section 4 hereof and
(iii) to for so long as Employee continues to serve on the
Board of Directors, to pay and grant the compensation contemplated
by the second paragraph of Section 3 hereof. In addition to
the foregoing, the Company may terminate this Agreement for Cause
(herein defined), in which event the compensation and benefits
obligations of the Company under this Agreement shall cease as of
the effective date of such termination (provided, however, that
termination of employment hereunder shall have no effect upon
Employee’s rights to compensation as a member of the Board of
Directors while serving in that capacity, or Employee’s
rights to retain any then vested restricted stock and to exercise
any then vested stock options, which exercise right shall continue
for 90 days after the date of such termination notwithstanding
any contrary term or provision in the Plan, any other plan or any
agreement to which the Company and Employee are parties). Upon such
termination for Cause, the Company shall have no further liability
to Employee hereunder except (i) to pay, within five
(5) days of the effective date of such termination, all
remaining cash compensation hereunder prorated through the
effective date of termination and (ii) to reimburse any
amounts determined to be owed to Employee pursuant to
Section 3 and/or Section 4 hereof for expenses
incurred through the date of such termination, within thirty
(30) days of receipt of the listing and receipts required
pursuant to Section 4 hereof and (iii) to for so long as
Employee continues to serve on the Board of Directors, to pay and
grant the compensation contemplated by the second paragraph of
Section 3 hereof. For purposes of this Agreement, "
Cause " shall mean: (A) the willful and continued
failure by Employee to substantially perform his duties hereunder
(other than any such failure resulting from Employee’s
incapacity due to physical or mental illness), after written demand
for substantial performance is delivered by the Board of Directors
to Employee that specifically identifies the manner in which the
Board believes Employee has not substantially performed his duties;
(B) the conviction or plea bargain of Employee of any felony
involving dishonesty, fraud, embezzlement or the like involving the
Company or its business; or (C) Employee willfully engaging in
conduct that is intentionally insubordinate and materially harmful
to the Company, or that is materially detrimental to the Company
after written notice is delivered by the Board of Directors to
Employee that specifically identifies the conduct which the Board
believes is harmful or detrimental. Any decision to terminate
Employee under clause (A), (B) or (C) shall require a
majority of all the members of the Board of Directors (not counting
Employee, if he is then a member of the Board) then serving.
Employee shall have 30 days to remedy any failure of
substantial performance of which he is given notice pursuant to
clause (A) above. If remedied to the reasonable satisfaction
of the Board of Directors, the Board shall withdraw such
notification.
Upon
the occurrence of a Change of Control at any time after the
Effective Date, and notwithstanding any other contrary provision of
the Plan, any other plan or any other agreement to which the
Company and Employee are then parties, all unvested shares of
restricted stock and all unvested stock options then held by
Employee shall vest and thereupon cease to be subject to any risk
of forfeiture (in the case of restricted stock) and be immediately
exercisable (in the case of stock options), without any requirement
of further action whatsoever by the Company, Employee or any other
person or entity or committee and regardless of whether
Employee’s employment is terminated in connection with such
Change of Control. For purposes hereof, a "Change of Control
" shall be deemed to occur upon: (i)
the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the " Exchange Act ")) (a "
Person ") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 25% or more
of the outstanding capital stock of the Company; provided, however,
that for purposes hereof, the following acquisitions
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shall not constitute a Change in Control: (I) any
acquisition by the Company or any Affiliate, or (II) any
acquisition by any employee benefit plan sponsored or maintained by
the Company or any Affiliate; or (ii)
during any period of two (2) consecutive years (not including
any period prior to the execution of this Agreement), individuals
who at the beginning of such period constituted the Board of
Directors and any new directors, whose election by the Board or
nomination for election by the Company’s stockholders was
approved by a vote of at least three-fourths (3/4ths) of the
directors then still in office who eit
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