EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the
“Agreement”) is dated made effective as of March 18, 2013 (“Effective Date”), by and between Mobile Mini, Inc., a Delaware corporation (“Company”), and Xxxx Xxxxxx
(“Executive”) (either party individually, a “Party”; collectively, the “Parties”).
WHEREAS, Company desires to retain the services of Executive as President and Chief Executive Officer and to appoint Executive as a member of the Company’s Board of Directors;
WHEREAS, the Parties desire to enter into this Agreement to set forth the terms and conditions of Executive’s employment by
Company and to address certain matters related to Executive’s employment with Company;
NOW, THEREFORE, in
consideration of the foregoing and the mutual provisions contained herein, and for other good and valuable consideration, the Parties hereto agree as follows:
1. Employment. Company hereby employs Executive, and Executive hereby accepts such employment commencing on the Effective Date, upon the terms and conditions set forth herein.
2.1 Position. Executive is employed as the President and Chief Executive Officer of the Company (the “Position”), and shall have the duties and responsibilities as may be
reasonably assigned from time to time by Company’s Board of Directors (the “Board”). Executive shall perform faithfully and diligently all those duties assigned to Executive.
2.2 Standard of Conduct/Full-time. During the term of this Agreement, Executive will act loyally and in good faith to discharge
the duties of the Position, and will abide by all policies and decisions made by Company, as well as all applicable laws, regulations or ordinances. Executive will act solely on behalf of Company at all times. Executive shall devote his full
business time and efforts to the performance of his duties for Company. Notwithstanding the foregoing, Executive may serve as a member of the board of directors of one or more for-profit or charitable organizations, provided that such services do
not materially interfere with Executive’s performance of his duties and responsibilities to the Company.
Location. Executive’s principal place of work shall be located at the Company’s executive office in Tempe, Arizona, or such other location as the parties may agree upon from time to time (the “Primary Work
3. Recoupment. Bonus, and other incentive and equity compensation paid or provided to
Executive, whether pursuant to this Agreement or otherwise, shall be subject to the terms and conditions of such policy of recoupment of compensation as shall be adopted from time to time by the Board or its Compensation Committee as it deems
necessary to comply with the requirements of Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (providing for recovery of erroneously awarded compensation), Section 304 of the Xxxxxxxx-Xxxxx Act of 2002
(providing for forfeiture of certain bonuses and profits), and any implementing rules and regulations of the U.S. Securities and Exchange Commission and applicable listing standards of a national securities exchange adopted in accordance with
any such Act (the “Recoupment Policy”). The terms and conditions of the Recoupment Policy, including any changes to the Recoupment Policy put in place after the date of this Agreement, are hereby incorporated by reference
into this Agreement.
4. Term. This Agreement shall be effective for a term commencing on the date hereof
and, subject to termination under Section 8, expiring on December 31, 2015 (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 31, 2015, and on each December 31st thereafter, unless
either party to this Agreement gives the other party written notice (in accordance with Section 18) within the ninety (90) day period prior to December 31, 2015(or the relevant December 31st 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. For purposes of this Agreement, any reference to the “term” of this Agreement shall include the original term and
any extension thereof.
5.1 Base Salary. As compensation for Executive’s performance of Executive’s duties hereunder, Company shall pay to Executive a salary at the annual rate of one million dollars
($1,000,000) per year (the “Base Salary”), payable in equal monthly installments and in accordance with the normal payroll practices of Company, less required deductions for state and federal withholding tax, social security
and all other employment taxes and authorized payroll deductions.
5.2 Equity. As an inducement to execute this
Agreement and join the Company as its Chief Executive Officer, on the Effective Date, he shall receive the Restricted Stock grant specified in subsection (a) of this Section 5.2 and the Stock Options specified in subsection (b) of
this Section 5.2. In addition, during the Term, Executive shall receive an annual award of restricted shares of Company common stock with a grant date value of $1,500,000 under the terms of the Company’s 2006 Equity Incentive Plan, or any
successor thereto, as determined by the Board or its Compensation Committee in its sole discretion.
Stock. Executive shall be granted an award of restricted shares of Company common stock with a value of $1,500,000 as of the date of the execution of this Agreement (the “Restricted Stock”), with the number of shares
based on the closing price of a share of Company common stock as reported by the Nasdaq Stock Market on the date on which Executive executes this Agreement. The Restricted Stock shall vest as follows: (i) 50% of the shares of Restricted Stock
shall vest over a four year period in equal annual installments commencing on the one year anniversary of the date of grant and on each one year anniversary thereafter, subject to Executive’s continued employment through each respective vesting
date, and (ii) 50% of the shares of Restricted Stock shall vest over a four year period commencing on the one year anniversary of the date of grant, subject to the Company’s achievement of performance targets and subject to
Executive’s continued employment through each respective performance period. The Restricted Stock grant shall be subject to the terms and conditions of the award agreement attached to this Agreement as Exhibit A.
(b) Stock Options. Executive shall be granted the following options: (i) an
option to purchase 1,000,000 shares of Company common stock at a price per share equal to the closing price of a share of Company common stock as reported by the Nasdaq Stock Market on the Effective Date; (ii) an option to purchase 500,000
shares of Company common stock at a price per share equal to 115% of the closing price of a share of Company common stock as reported by the Nasdaq Stock Market on the date on which Executive executes this Agreement; and (iii) an option to
purchase 500,000 shares of Company common stock at a price per share equal to 130% of the closing price of a share of Company common stock as reported by the Nasdaq Stock Market on the date on which Executive executes this Agreement (collectively,
the “Options”). The Options set forth in subparagraphs (ii) and (iii) immediately above shall vest over a three- (3-) year period in equal annual installments commencing on the one year anniversary of the Effective
Date, subject to Executive’s continued employment through each respective vesting date. The Options set forth in subparagraph (i) immediately above shall be subject to the Company’s achievement of performance targets. The Options
shall be subject to the terms and conditions of the nonqualified stock option documents attached to this Agreement as Exhibit B.
(c) Compliance with Securities Laws, Listing Standards. The Company shall grant the Option specified in this Section 5.2(b) as an “inducement grant” and not under its 2006 Equity
Incentive Plan (or any other broad-based equity plan for employees). Consequently, the Company shall take all actions required to satisfy applicable securities laws and NASDAQ listing standards relating to such inducement grant, including, but not
limited to, registering on Form S-8 the shares of common stock subject to such grant.
5.3 Incentive Compensation.
Executive will be eligible to earn incentive compensation subject to the achievement of incentive compensation targets established annually by the Board or its Compensation Committee (earned incentive compensation referred to as a
“Bonus”). Executive’s target incentive compensation for any year shall be equal to 100% of Executive’s then effective Base Salary, although the amount of the Bonus that Executive actually earns for any year shall be
determined by the Board or its Compensation Committee in its sole and absolute discretion, provided, however, Executive’s Bonus for any year shall not exceed 200% of Executive’s then-effective Base Salary. Notwithstanding the foregoing,
for the calendar year ending December 31, 2013, in the event that Executive is employed pursuant to this Agreement through December 31, 2013, Executive shall be entitled to a Bonus equal to 100% of his Base Salary for such year, prorated
for the period of time Executive is actually employed by the Company in 2013.
5.4 Performance and Salary Review. The
Board will periodically review Executive’s performance on no less than an annual basis. Adjustments to Base Salary or other compensation, if any, will be made by the Board or its Compensation Committee in its sole and absolute discretion;
provided that any such adjustment to Executive’s Base Salary or target incentive compensation percentage shall only be upwards, and may not be reduced.
6. Customary Fringe Benefits and Facilities. Executive will be eligible for all customary and usual fringe benefits generally available to executives of Company subject to the terms and conditions
of Company’s benefit plan documents. Notwithstanding Company’s policies, Executive shall be entitled to annual paid vacation for four weeks. Company reserves the right to change or eliminate the fringe benefits on a prospective basis, at
any time, effective upon notice to Executive. Notwithstanding the foregoing, during the Employment Period Executive will be provided coverage under the Company’s form of indemnification agreement as in effect for other senior executives of the
Company and, during the Employment Period and for a period of six (6) years thereafter, shall be provided coverage under the Company’s directors and officers liability insurance policy.
7. Business Expenses. Executive will be reimbursed for all reasonable, out-of pocket business expenses incurred in the performance
of Executive’s duties on behalf of Company consistent with Company policies as in effect from time to time. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting documentation in accordance with Company’s
policies. Any reimbursement Executive is entitled to receive shall (a) be paid no later than the last day of Executive’s tax year following the tax year in which the expense was incurred, (b) not be affected by any other expenses that
are eligible for reimbursement in any tax year and (c) not be subject to liquidation or exchange for another benefit.
8. Termination of Executive’s Employment.
8.1 Termination for Cause. Company may terminate Executive’s employment immediately at any time for Cause (as defined below).
In the event that Executive’s employment is terminated in accordance with this Section, Executive shall be entitled to receive only unpaid Base Salary then in effect, prorated to the date of Executive’s termination of employment (the
“Termination Date”), any Bonus that has been earned as a result of the prior year’s performance but is unpaid as of the Termination Date, and any amounts to which Executive is entitled pursuant to Section 6 and
Section 7 of this Agreement (“Accrued Rights”). Upon the effective date of such termination for Cause, all vested and unvested equity-based awards shall immediately terminate and all other Company obligations to
Executive pursuant to this Agreement shall be automatically terminated and completely extinguished. Executive shall not be entitled to receive the Severance Benefits described in Section 8.2 below or under any other plan or program of the
8.2 Involuntary Termination. In the event of any Involuntary Termination, Executive shall be entitled to
receive his Accrued Rights. In addition, subject to Section 8.6, Company shall provide Executive with the following (the “Severance Benefits”), and all other Company obligations to Executive pursuant to this Agreement
shall be automatically terminated and completely extinguished:
(a) Cash Severance. In the event of any Involuntary
Termination that occurs other than within one year following the occurrence of a Change in Control, subject to the requirements of Section 8.6, Executive shall receive the continuation of his Base Salary for a period of twenty-four
(24) months following the Termination Date, paid at the same intervals as salary is paid to active employees (except as otherwise provided in Section 19) and commencing within the sixty- (60-) day period following the Termination Date
(provided, that if such sixty- (60-) day period straddles two taxable years of the Executive, the payments will commence in the second taxable year). In the event of any Involuntary Termination that occurs within one year following the occurrence of
a Change in Control, provided Executive confirms in writing to the Company his agreement to be bound by the post-termination covenant in Section 12.2 hereof and subject to the requirements of Section 8.6, Executive shall receive in a
single payment an amount in cash equal to two (2) times the sum of (A) Executive’s Base Salary at the highest rate in effect at any time within the ninety- (90-) day period ending on the date the notice of termination is given
pursuant to Section 18.2 or the Executive’s Base Salary immediately prior to the Change in Control, if greater, and (B) the target Bonus for such period, which aggregate amount shall be payable to Executive within the sixty- (60-) day
period following the Termination Date (provided, that if such sixty- (60-) day period straddles two taxable years of the Executive, the payments will commence in the second taxable year. Regardless of whether the Involuntary Termination occurs
within one year following the occurrence of a Change in Control, Executive shall also be entitled to receive a pro-rated Bonus based on actual results for the year in which the Termination Date occurs, such pro-rated Bonus to be paid at the time
bonuses are paid to other Company executives for such year (except as otherwise provided in Section 19).
Equity Awards. Executive shall not be entitled to any further vesting of Company equity awards following the Termination Date. Any rights to Company equity awards that vested prior to the Termination Date shall be determined in accordance with
the terms of those awards.
(c) Payments for Continued Healthcare. For a period of twenty-four (24) months
following the Termination Date, Company shall pay to Executive a monthly amount before the end each calendar month equal to difference between (i) the monthly cost of Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”) health and dental benefits for Executive (assuming that Executive would be eligible for such coverage), less (ii) the monthly amount that the Executive would be required to contribute for health and dental
coverage if Executive were an active employee of Company.
8.3 Termination upon Disability. Company may terminate
Executive’s employment with Company at any time following Executive’s Disability. Upon termination following Disability, Executive shall be entitled to receive his Accrued Rights. All other Company obligations to Executive pursuant to this
Agreement shall be automatically terminated and completely extinguished. Executive shall not be entitled to receive the Severance Benefits described in Section 8.2 above.
8.4 Termination upon Death. Executive’s employment shall terminate automatically upon Executive’s death. Upon termination as a result of Executive’s death, Executive’s estate or
designated beneficiaries shall be entitled to receive Executive’s Accrued Rights. All other Company obligations to Executive pursuant to this Agreement shall be automatically terminated and completely extinguished. Executive shall not be
entitled to receive the Severance Benefits described in Section 8.2 above.
8.5 Voluntary Resignation by
Executive. Executive may voluntarily resign from employment with Company for any reason, at any time, on thirty (30) days’ advance written notice. In the event of Executive’s resignation which is not a Resignation for Good Reason,
Executive will be entitled to receive only his Accrued Rights. All other Company obligations to Executive pursuant to this Agreement shall be automatically terminated and completely extinguished. Executive shall not be entitled to receive the
Severance Benefits described in Section 8.2 above.
8.6 Release and Forfeiture of Severance Benefits. The right of
Executive to receive or to retain Severance Benefits pursuant to Section 8.2 shall be in consideration for, and subject to, (1) execution of and delivery to the Company of a release of claims substantially in the form attached as
Exhibit C to this Agreement, amended as necessary to comply with applicable law (the “Release”) and lapse of the period for revocation, if any, of the Release without the Release having been revoked no later than
60 days after the Termination Date, and (2) Executive’s continued compliance with the Covenants (as defined in Sections 13 and 14 of this Agreement). In the event that Executive breaches any of the Covenants, Company shall have the
right to (a) terminate any further provision of Severance Benefits not yet paid or provided, (b) seek reimbursement from Executive for any and all such Severance Benefits previously paid or provided to Executive, (c) recover from
Executive all shares of stock of Company the vesting of which, or the option to purchase, was accelerated by reason of the Severance Benefits (or the proceeds therefrom, reduced by any exercise or purchase price paid to acquire such shares), and
(d) to immediately cancel all Equity Awards the vesting of which was accelerated by reason of the Severance Benefits. No Severance Benefits shall be paid until the 60th day following the Termination Date.
8.7 Definitions of Certain Terms. Certain capitalized terms not otherwise defined by
this agreement shall have the following meanings:
(a) “Cause” means (i) theft, material
dishonesty in connection with Executive’s employment, or intentional falsification of any employment or Company records; (ii) intentional and improper disclosure of Company’s confidential or proprietary information;
(iii) Executive’s conviction (including any plea of guilty or nolo contendere) for any criminal act that materially impairs Executive’s ability to perform his duties for Company; (iv) willful misconduct or breach of fiduciary
duty for personal profit by Executive, (v) Executive’s material failure to abide by Company’s code of conduct or code of ethics policies resulting in demonstrable injury to Company or its reputation, or (vi) a material breach of
this Agreement by Executive which is not cured within thirty (30) days of receipt by Executive of reasonably detailed written notice from Company.
(b) “Change in Control” means, except with respect to cash Severance Benefits payable under Section 8.2(a), 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 “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
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur 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. In the event of any conflict between this Section 8.7(b) and any agreement between Executive and the Company
relating to any outstanding award (whether now existing or hereafter entered into), the provisions of this subsection shall prevail.
respect to cash Severance Benefits payable under Section 8.2(a), “Change in Control” means a Change in Control as defined in this Section 8.7(b), but only if such event also constitutes a “change in control event” under
Treasury Regulation Section 1.409A-3(i)(5).
(c) “Disability” means a disability as defined by
the group long-term disability insurance policy maintained by Company for the benefit of its employees. In the absence of such a policy, “Disability” means that, as a result of Executive’s mental or physical illness, Executive is
unable to perform (with or without reasonable accommodation in accordance with the Americans with Disabilities Act) the duties of Executive’s position pursuant to this Agreement for a continuous period of three (3) months. 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 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.
(d) “Involuntary Termination” means the occurrence of
either (i) termination by Company of Executive’s employment with Company for any reason other than Cause or (ii) Executive’s Resignation for Good Reason; provided, however that Involuntary Termination shall not include any
termination of Executive’s employment which is (x) for Cause, (y) a result of Executive’s death or Disability, or (z) a result of Executive’s voluntary termination of employment which is not a Resignation for Good
Reason. Company may terminate Executive’s employment with Company without Cause at any time on thirty (30) days’ advance written notice to Executive.
(e) “Resignation for Good Reason” means the voluntary resignation
by Executive from employment with Company within a period of one hundred eighty (180) days following the initial existence, without Executive’s express written consent, of any of the below conditions (each, a “Good
Reason”). The Good Reason condition must remain in effect for thirty (30) days after Executive’s delivery of written notice of the existence of such condition(s) to Company and such written notice must be given within ninety
(90) days following the initial existence of such condition(s):
(i) a material, adverse change in Executive’s
authority, duties or responsibilities, including without limitation any change in Executive’s reporting relationship such that Executive ceases to report directly to the Board;
(ii) a failure to pay the Executive’s Base Salary or Bonus, or any material reduction in Executive’s Base Salary or
Executive’s target Bonus percentage opportunity (subject to applicable performance requirements with respect to the actual amount of Bonus earned by Executive);
(iii) the relocation of Executive’s work place for Company to a location more than thirty (30) miles from the Primary Work Location, unless the new Primary Work Location is less than thirty
(30) miles away from Executive’s home immediately prior to the change; or
(iv) the failure of Company or any
Successor to honor any material term of this Agreement.
9. Acceleration of Vesting upon a Change in Control. In the
event of a Change in Control, provided that Executive confirms in writing to the Company that he agrees to be bound by the post-termination covenant in Section 12.2 hereof, the vesting of all then unvested outstanding Equity Awards granted to
Executive shall accelerate in full. This Section shall be applied to each Equity Award or any portion thereof that remains subject to a substantial risk of forfeiture until both (i) one or more applicable corporate financial or other business
performance goals have been satisfied and (ii) Executive’s service with Company has continued through a specified date, and with respect to such Equity Award neither of the conditions specified in clause (i) or clause (ii) of
this sentence has been satisfied, by accelerating in full the target number of shares or units that would vest pursuant to such Equity Award if Executive’s employment had not terminated and if all performance-based milestones were achieved at
the 100% level by both Company and Executive. The foregoing provision is hereby deemed to be a part of each agreement evidencing each applicable Equity Award to which Executive is a party and to supersede any contrary provision in any such agreement
unless such agreement specifically refers to and disclaims this Section 9 of this Agreement.
10. Golden Parachute
10.1 In the event that any of the severance payments and other benefits provided by this Agreement or otherwise
payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code
(“Excise Tax”), then Executive’s severance payments and benefits under this Agreement or otherwise shall be payable either:
(a) in full, or
(b) in such lesser amount which would result in no portion of
such severance payments or benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive, on an
after-tax basis, of the greatest amount of severance payments and benefits under this Agreement or otherwise, notwithstanding that all or some portion of such severance payments or benefits may be taxable under Section 4999 of the Code. Any
reduction in the severance payments and benefits required by this Section will made in the following order: (i) reduction of cash payments; (ii) reduction of accelerated vesting of equity awards other than stock options;
(iii) reduction of accelerated vesting of stock options; and (iv) reduction of other benefits paid or provided to Executive.
10.2 The professional firm engaged by Company for general tax purposes as of the day prior
to the date of the event that might reasonably be anticipated to result in severance payments and benefits that would otherwise be subject to the Excise Tax will perform the foregoing calculations. If the tax firm so engaged by Company is serving as
accountant or auditor for the acquiring company, Company will appoint a nationally recognized tax firm to make the determinations required by this Section. Company will bear all expenses with respect to the determinations by such firm required to be
made by this Section. Company and Executive shall furnish such tax firm such information and documents as the tax firm may reasonably request in order to make its required determination. The tax firm will provide its calculations, together with
detailed supporting documentation, to Company and Executive as soon as practicable following its engagement. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon Company and Executive.
10.3 As a result of the uncertainty in the application of Sections 409A, 280G or 4999 of the Code at the time of the initial
determination by the professional firm described in Section 10.2, it is possible that the Internal Revenue Service (the “IRS”) or other agency will claim that an Excise Tax greater than that amount, if any, determined by
such professional firm for the purposes of Section 10.1 is due (the “Additional Excise Tax”). Executive will notify Company in writing of any claim by the IRS or other agency that, if successful, would require payment of
Additional Excise Tax. Executive and Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to payments made or
due to Executive. Company shall pay all reasonable fees, expenses and penalties of Executive relating to a claim by the IRS or other agency. In the event it is finally determined that a further reduction would have been required under
Section 10.1(b) to place Executive in a better after-tax position, Executive shall repay Company such amount within thirty (30) days thereof in order to effect such result.
11. No Conflict of Interest. During the term of Executive’s employment with Company, Executive must not engage in any work,
paid or unpaid, that creates an actual or potential conflict of interest with Company. If the Board reasonably believes such a conflict exists during the term of this Agreement, the Board may ask Executive to choose to discontinue the other work or
resign employment with Company.
12. Post-Termination Non-Competition.
12.1 Consideration For Promise To Refrain From Competing. Executive agrees that Executive’s services are special and unique,
that Company’s disclosure of confidential, proprietary information and specialized training and knowledge to Executive, and that Executive’s level of compensation and benefits are partly in consideration of and conditioned upon Executive
not competing with Company. Executive acknowledges that such consideration is adequate for Executive’s promises contained within this Section 12.
12.2 Promise To Refrain From Competing. Executive understands Company’s need for
Executive’s promise not to compete with Company is based on the following: (a) Company has expended, and will continue to expend, substantial time, money and effort in developing its proprietary information; (b) Executive will in the
course of Executive’s employment develop, be personally entrusted with and exposed to Company’s proprietary information; (c) both during and after the term of Executive’s employment, Company will be engaged in the highly
competitive portable storage solution industry; (d) Company provides products and services nationally and internationally; and (e) Company will suffer great loss and irreparable harm if Executive were to enter into competition with
Company. Therefore, in exchange for the consideration described in Section 12.1 above, Executive agrees that for the period of twenty-four (24) months following the date Executive ceases to render services to Company (the
“Covenant Period”), Executive will not either directly or indirectly, whether as an owner, director, officer, manager, consultant, agent or employee: (i) work for a competitor of Company, which is defined to include
those entities or persons in the following business segments: rental and sale of containers, security offices, mobile offices or other portable space solutions, or modular classrooms or any other business that has been undertaken, or with respect to
which substantial steps towards its undertaking have been implemented, by the Company prior to the Termination Date utilizing the Company’s products (the “Restricted Business”) or (ii) make or hold during the
Covenant Period any investment in any Restricted Business, whether such investment be by way of loan, purchase of stock or otherwise, provided that there shall be excluded from the foregoing the ownership of not more than 1% of the listed or traded
stock of any publicly held corporation. For purposes of this Section 12, the term “Company” shall mean and include Company, any subsidiary or affiliate of Company, any successor to the business of Company (by merger,
consolidation, sale of assets or stock or otherwise) and any other corporation or entity of which Executive may serve as a director, officer or employee at the request of Company or any successor of Company. Notwithstanding the foregoing, this
Section 12.2 shall not be effective on and after a Change in Control unless Executive confirms in writing to the Company on or after such Change in Control that he agrees to be bound by this Section 12.2 following a Change in Control. In
the absence of such written confirmation to the Company, this Section 12.2 shall be of no effect and Executive shall not be entitled to the severance benefits under Section 8.2(a) upon an Involuntary Termination following a Change in
Control and shall not be entitled to the equity acceleration set forth in Section 9.
12.3 Reasonableness of
Restrictions. Executive represents and agrees that the restrictions on competition, as to time, geographic area, and scope of activity, required by this Section 12 are reasonable, do not impose a greater restraint than is necessary to
protect the goodwill and business interests of Company, and are not unduly burdensome to Executive. Executive expressly acknowledges that Company competes on an international basis and that the geographical scope of these limitations is reasonable
and necessary for the protection of Company’s trade secrets and other confidential and proprietary information. Executive further agrees that these restrictions allow Executive an adequate number and variety of employment alternatives, based on
Executive’s varied skills and abilities. Executive represents that Executive is willing and able to obtain other employment not prohibited by this Agreement.
12.4 Reformation if Necessary. In the event a court of competent jurisdiction determines that the geographic area, duration, or scope of activity of any restriction under this Section 12 and
its subsections is unenforceable, the restrictions under this Section and its subsections shall not be terminated but shall be reformed and modified to the extent required to render them valid and enforceable. Executive further agrees that the court
may reform this Agreement to extend the Covenant Period by an amount of time equal to any period in which Executive is in breach of this covenant.
13. Confidentiality and Proprietary Rights. Executive agrees to read, sign and abide by Company’s Employee Innovations and Proprietary Rights Assignment Agreement, which is incorporated herein
14.1 Nonsolicitation of Customers or Prospects. Executive acknowledges that information about Company’s customers is
confidential and constitutes trade secrets. Accordingly, Executive agrees that during the term of this Agreement and the Covenant Period, Executive will not, either directly or indirectly, separately or in association with others, interfere with,
impair, disrupt or damage Company’s relationship with any of its customers or customer prospects (defined as prospective customers who had received a written proposal from the Company for Company products or services within the past 12 months)
by soliciting or encouraging others to solicit any of them for the purpose of diverting or taking away business from Company.
14.2 Nonsolicitation of Company’s Employees. Executive agrees that during the term of this Agreement and the Covenant Period,
Executive will not, either directly or indirectly, separately or in association with others, interfere with, impair, disrupt or damage Company’s business by soliciting, encouraging or attempting to hire any of Company’s then employees or
causing others to solicit or encourage any of Company’s employees to discontinue their employment with Company. Nothing herein shall prohibit a general solicitation of employment by Executive or others that is not targeted at Company employees.
15. Injunctive Relief. Executive acknowledges that Executive’s breach of the covenants contained in
Sections 12—14 (collectively “Covenants”) would cause irreparable injury to Company and agrees that in the event of any such breach, Company shall, in addition to the action it is authorized to take pursuant to
Section 8.6, be entitled to seek temporary, preliminary and permanent injunctive relief without the necessity of proving actual damages or posting any bond or other security.
16. Agreement to Mediate and Arbitrate. In the event a dispute arises in connection with this Agreement, Company and Executive
agree to submit the dispute to non-binding mediation, with the mediator to be selected and compensated by Company. In the event a resolution is not reached through mediation, then, to the fullest extent permitted by law, Executive and Company agree
to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement, the employment relationship between Company and Executive and any disputes upon termination of employment, including but not limited
to breach of contract, tort, discrimination, harassment, wrongful termination, demotion, discipline, failure to accommodate, family and medical leave, compensation or benefits claims, constitutional claims; and any claims for violation of any local,
state or federal law, statute, regulation or ordinance or common law. Claims for breach of Company’s Employee Innovations and Proprietary Rights Agreement, workers’ compensation, unemployment insurance benefits and Company’s right to
obtain injunctive relief pursuant to Section 15 above are excluded. For the purpose of this agreement to arbitrate, references to “Company” include all parent, subsidiary or related entities and their employees, supervisors, officers,
directors, agents, pension or benefit plans, pension or benefit plan sponsors, fiduciaries, administrators, affiliates and all successors and assigns of any of them, and this Agreement shall apply to them to the extent Executive’s claims arise
out of or relate to their actions on behalf of Company.
16.1 Initiation of Arbitration. Either party may exercise the
right to arbitrate by providing the other party with written notice of any and all claims forming the basis of such right in sufficient detail to inform the other party of the substance of such claims. In no event shall the request for arbitration
be made after the date when institution of legal or equitable proceedings based on such claims would be barred by the applicable statute of limitations.
16.2 Arbitration Procedure. The arbitration will be conducted in Maricopa County,
Arizona, by a single neutral arbitrator and in accordance with the then current rules for resolution of employment disputes of the American Arbitration Association (“AAA”), available at
xxxx://xxx.xxx.xxx/xx/xxxxxx/xxx/xxxxxxxxx/xxxxxxxx/xxxx/xxx0/xxxxxx/xxxxxx_000000.xxx. The parties are entitled to representation by an attorney or other representative of their choosing. The arbitrator shall have the power to enter any
award that could be entered by a judge of the trial court of the State of Arizona, and only such power, and shall follow the law. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in
any court having jurisdiction thereof.
16.3 Costs of Arbitration. Each party shall bear one half the cost of the
arbitration filing and hearing fees, and the cost of the arbitrator.
17.1 Company’s Successors. Any successor to Company (whether direct or indirect and whether by purchase, merger,
consolidation, liquidation or otherwise) to all or substantially all of Company’s business and/or assets (a “Successor”) shall assume the obligations under this Agreement and agree expressly to perform the obligations
under this Agreement in the same manner and to the same extent as Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any Successor
becomes bound by the terms of this Agreement by operation of law.
17.2 Executive’s Successors. The terms of this
Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
18.1 General. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or one day following
mailing via Federal Express or similar overnight courier service. In the case of Executive, mailed notices shall be addressed to Executive at Executive’s home address that Company has on file for Executive. In the case of Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its General Counsel.
18.2 Notice of Termination. Any termination by Company for Cause or by Executive pursuant to a Resignation for Good Reason shall be communicated by a notice of termination to the other party hereto
given in accordance with Section 18.1 of this Agreement. Such notice shall indicate the specific termination provision in this Agreement relied upon, shall set forth in reasonable detail the facts and circumstances claimed to provide a basis
for termination under the provision so indicated, and shall specify the termination date, consistent with the requirements of this Agreement. The failure by Executive to include in the notice any fact or circumstance that contributes to a showing of
the existence of Good Reason shall not waive any right of Executive hereunder or preclude Executive from asserting such fact or circumstance in enforcing his rights hereunder.
19. Compliance with Section 409A of the Code. The parties intend that this
Agreement (and all payments and other benefits provided under this Agreement) be exempt from the requirements of Section 409A of the Code and the regulations and ruling issued thereunder (collectively “Section 409A”), to
the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulation
Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to such payments, the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and
restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the
generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary:
19.1 No amount
payable pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of Section 409A shall be paid unless and until Executive has incurred a “separation from service” within the meaning of
Section 409A. Furthermore, to the extent that Executive is a “specified employee” within the meaning of Section 409A (determined using the identification methodology selected by Company from time to time, or if none, the default
methodology) as of the date of Executive’s separation from service, no amount that constitutes a deferral of compensation which is payable on account of Executive’s separation from service shall paid to Executive before the date (the
“Delayed Payment Date”) which is first day of the seventh month after the date of Executive’s separation from service or, if earlier, the date of Executive’s death following such separation from service. All such amounts that
would, but for this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the Delayed Payment Date.
19.2 Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of
19.3 With regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind
benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Section 409A, (i) the right to reimbursement or
in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year shall not affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be deemed to be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of
the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in
which the expense occurred.
19.4 Notwithstanding any provision of this Agreement to the contrary, in no event shall the
timing of Executive’s execution of the Release, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year of
the Executive, payment shall be made in the Executive’s later taxable year.
19.5 Company intends that income provided to
Executive pursuant to this Agreement will not be subject to taxation under Section 409A of the Code. However, Company does not guarantee any particular tax effect for income provided to Executive pursuant to this Agreement.
20. General Provisions.
20.1 Unfunded Obligation. Any amounts payable to Executive pursuant to this Agreement are unfunded obligations. Company shall not
be required to segregate any monies from its general funds, or to create any trusts, or establish any special accounts with respect to such obligations. Company shall retain at all times beneficial ownership of any investments, including trust
investments, which Company may make to fulfill its payment obligations hereunder. Any investments or the creation or maintenance of any trust or any account shall not create or constitute a trust or fiduciary relationship between the Board or
Company and Executive, or otherwise create any vested or beneficial interest in Executive or Executive’s creditors in any assets of Company.
20.2 No Duty to Mitigate. Executive shall not be required to mitigate the amount of any payment or benefit contemplated by this Agreement by seeking employment with a new employer or otherwise, nor
shall any such payment or benefit be reduced by any compensation or benefits that Executive may receive from employment by another employer.
20.3 Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by an authorized
officer of Company (other than Executive). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
20.4 Attorneys’ Fees. In any dispute relating to this Agreement,
either party shall pay its own attorneys’ fees.
20.5 Tax Withholding. All payments made pursuant to this
Agreement will be subject to withholding of applicable taxes.
20.6 Choice of Law; Venue. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of the State of Arizona without giving effect to any conflict of law principles. For purposes of litigating any dispute that arises directly or indirectly from the
relationship of the Parties that is not subject to arbitration pursuant to Section 16, the parties hereby submit to and consent to the jurisdiction of the State of Arizona and agree that such litigation shall be conducted only in the courts of
Maricopa County, Arizona, or the federal courts of the United States for the District of Arizona, and no other courts.
Severability. In the event any provision of this Agreement is found to be unenforceable by an arbitrator or court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to allow enforceability of the
provision as so limited, it being intended that the parties shall receive the benefit contemplated herein to the fullest extent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the
unenforceable provision shall be deemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.
20.8 Benefits Not Assignable. Except as otherwise provided herein or by law, no right or interest of Executive under this Agreement shall be assignable or transferable, in whole or in part, either
directly or by operation of law or otherwise, including, without limitation, by execution, levy, garnishment, attachment, pledge or in any other manner, and no attempted transfer or assignment thereof shall be effective. No right or interest of
Executive under this Agreement shall be liable for, or subject to, any obligation or liability of Executive.
20.9 Further Assurances. From time to time, at Company’s request and without
further consideration, Executive shall execute and deliver such additional documents and take all such further action as reasonably requested by Company to be necessary or desirable to make effective, in the most expeditious manner possible, the
terms of this Agreement and the Release, and to provide adequate assurance of Executive’s due performance thereunder.
20.10 Interpretation; Construction. The headings set forth in this Agreement are for convenience only and shall not be used in
interpreting this Agreement. This Agreement has been drafted by legal counsel representing Company, but Executive has participated in the negotiation of its terms. Furthermore, Executive acknowledges that Executive has had an opportunity to review
and revise the Agreement and have it reviewed by legal counsel, if desired, and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation
of this Agreement.
20.11 Survival. Sections 11 (“No Conflict of Interest”), 12 (“Post-Termination
Non-Competition”), 13 (“Confidentiality and Proprietary Rights”), 14 (“Nonsolicitation”), 15 (“Injunctive Relief’), 16 (“Agreement to Mediate and Arbitrate”), 20 (“General Provisions”) and 21
(“Entire Agreement”) of this Agreement shall survive Executive’s employment by Company.
Agreement. This Agreement, together with the exhibits attached hereto or incorporated herein by reference, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous
representations, discussions, negotiations, and agreements, whether written or oral. This Agreement may be amended or modified only with the written consent of Executive and the Board. No oral waiver, amendment or modification will be effective
under any circumstances whatsoever.
22. Reimbursement of Legal Fees. The Company agrees to pay all reasonable legal
fees and related expenses incurred by Executive as a result of entering into this Employment Agreement.
[Remainder of page
intentionally left blank.]
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY
PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
|Dated: March 18, 2013
/s/ Xxxx Xxxxxx
|Dated: March 18, 2013
/s/ Xxxx Xxxxx
[Signature Page to Executive Employment Agreement]
CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT
This Confidential Separation and Release Agreement (“Agreement”) is between Xxxx Xxxxxx
(“Employee”) and Mobile Mini, Inc. (the “Company”) (hereinafter the “parties”), and is entered into as of
. This Agreement will not become effective until the expiration of seven (7) days from Employee’s execution of this Agreement (the “Effective
WHEREAS, Employee has been employed by Company as its Chief Executive Officer and is a party to that
certain Executive Employment Agreement dated , 2013 as amended by and between Company and Employee as then in effect immediately prior to the Effective Date (the
WHEREAS, the Employee’s employment with Company was
terminated effective as of , 20 (the “Termination Date”);
WHEREAS, Company and Employee desire to avoid disputes and/or litigation regarding Employee’s termination from employment or any
events or circumstances preceding or coincident with the termination from employment; and
WHEREAS, Company and Employee have
agreed upon the terms on which Employee is willing, for sufficient and lawful consideration, to compromise any claims known and unknown which Employee may have against Company.
WHEREAS, the parties desire to settle fully and finally, in the manner set forth herein, all differences between them which have arisen,
or which may arise, prior to, or at the time of, the execution of this Agreement, including, but in no way limited to, any and all claims and controversies arising out of the employment relationship between Employee and Company, and the termination
NOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement,
Employee’s employment with Company will terminate upon the following terms:
1. General Release: Employee for
himself or herself and on behalf of Employee’s attorneys, heirs, assigns, successors, executors, and administrators IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS AND FOREVER DISCHARGES Company and any current or former stockholders,
directors, parent, subsidiary, affiliated, and related corporations, firms, associations, partnerships, and entities, and their successors and assigns, from any and all claims and causes of action whatsoever, whether known or unknown or whether
connected with Employee’s employment by Company or not, which may have arisen, or which may arise, prior to, or at the time of, the execution of this Agreement, including, but not limited to, any claim or cause of action arising out of any
contract, express or implied, any covenant of good faith and fair dealing, express or implied, any tort (whether intentional or released in this agreement), or under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act, the Worker Adjustment and Retraining Notification (WARN) Act, the Older Workers Benefit Protection Act, or any other municipal, local, state, or federal law, common or statutory, but excluding any claims
with respect to the Company’s obligations under the Employment Agreement, any claims relating to vested benefits under any Company employee benefit plan (including without limitation any such plan subject to the Employee Retirement Income
Security Act of 1974, as amended) and any claims which Employee cannot release as a matter of applicable law. Furthermore, neither this Agreement nor the Employment Agreement shall apply to, modify or in any way supersede obligations arising from
any of (i) the terms of directors and officers insurance or (ii) any indemnification agreement for the benefit of the Employee as a result of the Employee’s position as a director or officer of the Company or one of its affiliates.
2. Covenant Not to Xxx: Employee also COVENANTS NOT TO XXX, OR OTHERWISE PARTICIPATE
IN ANY ACTION OR CLASS ACTION against Company or any of the released parties based upon any of the claims released in this Agreement.
3. Severance Terms: Upon the expiration of seven (7) days from Employee’s execution of this Agreement and provided that this Agreement has become effective in accordance with its terms,
in consideration for the promises, covenants, agreements, and releases set forth herein and in the Employment Agreement, Company agrees to pay Employee the Severance Benefits as defined in and pursuant to the Employment Agreement (the
4. Right to Revoke: Employee may revoke this Agreement by
notice to Company, in writing, received within seven (7) days of the date of its execution by Employee (the “Revocation Period”). Employee agrees that Employee will not receive the benefits provided by this
Agreement if Employee revokes this Agreement. Employee also acknowledges and agrees that if Company has not received from Employee notice of Employee’s revocation of this Agreement prior to the expiration of the Revocation Period, Employee will
have forever waived Employee’s right to revoke this Agreement, and this Agreement shall thereafter be enforceable and have full force and effect.
5. Acknowledgement: Employee acknowledges and agrees that: (A) except as to any Severance Benefits which remain unpaid as of the date of this Agreement, no additional consideration, including
salary, wages, bonuses or Equity Awards as described in the Employment Agreement, is to be paid to him by Company in connection with this Agreement; (B) except as provided by this Agreement, Employee has no contractual right or claim to the
Severance Benefits; and, (C) payments pursuant to this Agreement shall terminate immediately if Employee breaches any of the provisions of this Agreement.
6. Non-Admissions: Employee acknowledges that by entering into this Agreement, Company does not admit, and does specifically deny, any violation of any local, state, or federal law.
7. Confidentiality: Employee agrees that Employee shall not directly or indirectly disclose the terms, amount or fact of this
Agreement to anyone other than Employee’s immediate family or counsel, bankers or financial advisors, except as such disclosure may be required for accounting or tax reporting purposes or as otherwise may be required by law.
8. Nondisparagement: Each party agrees that it will not make any statements, written or verbal, or cause or encourage others to
make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices or conduct of the other including, in the case of Company, its employees, directors and stockholders.
9. Acknowledgement of Restrictions; Confidential Information: Employee acknowledges and agrees that Employee has continuing
non-competition, non-solicitation and non-disclosure obligations under the Employment Agreement and the Employee Innovations and Proprietary Rights Assignment Agreement between Employee and Company (the “Proprietary Rights
Agreement”). Employee acknowledges and reaffirms Employee’s obligation to continue abide fully and completely with all post-employment provisions of the Employment Agreement and the Proprietary Rights Agreement and agrees
that nothing in this Agreement shall operate to excuse or otherwise relieve Employee of such obligations.
11. Severability: If any provision of this Agreement is held to be illegal, invalid,
or unenforceable, such provision shall be fully severable and/or construed in remaining part to the full extent allowed by law, with the remaining provisions of this Agreement continuing in full force and effect.
12. Entire Agreement: This Agreement, along with the Employment Agreement and the Proprietary Rights Agreement which are referred
to above, constitute the entire agreement between the Employee and Company, and supersede all prior and contemporaneous negotiations and agreements, oral or written. This Agreement cannot be changed or terminated except pursuant to a written
agreement executed by the parties.
13. Governing Law: This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona, except where preempted by federal law.
14. Statement of Understanding: By
executing this Agreement, Employee acknowledges that (a) Employee has had at least twenty-one (21) or forty-five (45) days, as applicable in accordance with the Age Discrimination in Employment Act, as amended, (the
“ADEA”) to consider the terms of this Agreement [and any attachment necessary or desirable in accordance with the ADEA) and has considered its terms for such a period of time or has knowingly and voluntarily waived
Employee’s right to do so by executing this Agreement and returning it to Company; (b) Employee has been advised by Company to consult with an attorney regarding the terms of this Agreement; (c) Employee has consulted with, or has had
sufficient opportunity to consult with, an attorney of Employee’s own choosing regarding the terms of this Agreement; (d) any and all questions regarding the terms of this Agreement have been asked and answered to Employee’s complete
satisfaction; (e) Employee has read this Agreement and fully understands its terms and their import; (f) except as provided by this Agreement, Employee has no contractual right or claim to the benefits and payments described herein;
(g) the consideration provided for herein is good and valuable; and (h) Employee is entering into this Agreement voluntarily, of Employee’s own free will, and without any coercion, undue influence, threat, or intimidation of any kind
or type whatsoever.
HAVING READ AND UNDERSTOOD THIS AGREEMENT, CONSULTED COUNSEL OR VOLUNTARILY ELECTED NOT TO CONSULT COUNSEL, AND HAVING
HAD SUFFICIENT TIME TO CONSIDER WHETHER TO ENTER INTO THIS AGREEMENT, THE UNDERSIGNED HEREBY EXECUTE THIS AGREEMENT ON THE DATES SET FORTH BELOW.
MOBILE MINI, INC.