As filed with the Securities and Exchange Commission on December 4, 1997
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
mobile mini, inc.
(Exact name of Registrant as specified in its charter)
Delaware 86-0748362
- ------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1834 West Third Street
Tempe, Arizona 85281
(602) 790-4214
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------
Mobile Mini, Inc. Amended and Restated
1994 Stock Option Plan
(Full title of the plan)
---------------
Lawrence Trachtenberg
Executive Vice President
1834 West Third Street
Tempe, Arizona 85281
(602) 894-6311
(Name, address including zip code, and telephone number,
including area code, of agent for service)
---------------
with copies to
Joseph P. Richardson, Esq.
Bryan Cave LLP
2800 North Central Avenue, 21st Floor
Phoenix, Arizona 85004
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
To Be Registered Registered Per Share * Price * Registration Fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, par value $.01 per share 750,000 shares $5.375 $4,031,250 $1,189.22
</TABLE>
* Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act
of 1933, on the basis of the average of the high and low prices for shares
of Common Stock on December 2, 1997.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The document(s) containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not required to be and are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the Mobile Mini, Inc. Amended and Restated 1994
Stock Option Plan and its administrators are available without charge by
contacting:
Stockholder Relations Department
Mobile Mini, Inc.
1834 West Third Street
Tempe, Arizona 85281
(602) 894-6311
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Mobile Mini, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the documents listed in (a) through (c) below.
In addition, all documents subsequently filed pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or either the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, that contains audited
financial statements for the Registrant's latest fiscal year for which such
statements have been filed, or the Registrant's effective Registration Statement
on Form 10 filed under the Exchange Act containing audited financial statements
for the Registrant's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant's
document referred to in (a) above.
(c) The description of the Registrant's Common Stock, which is
contained in a Registration Statement of the Registrant filed on Form 8-A, dated
February 9, 1994 as amended by Amendment No. 1 dated February 16, 1994.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation and Bylaws provide that
the Registrant will indemnify its directors and executive officers and may
indemnify its other officers, employees and other agents to the fullest
2
<PAGE>
extent permitted by Delaware law. Pursuant to these provisions, the Registrant
has entered into or intends to enter into indemnity agreements with each of its
directors and executive officers.
In addition, the Registrant's Certificate of Incorporation provides
that, to the fullest extent permitted by Delaware law, the Registrant's
directors will not be liable for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. This provision in
the Certificate of Incorporation does not eliminate the duty of care, and in
appropriate circumstances equitable remedies such as an injunction or other
forms of non-monetary relief would remain available under Delaware law. Each
director will be subject to liability for breach of the director's duty of
loyalty to the Registrant, for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, for acts or omissions that
the director believes to be contrary to the best interests of the Registrant or
its stockholders, for any transaction from which the director derived an
improper personal benefit, for acts or omissions involving a reckless disregard
for the director's duty to the Registrant or its stockholders when the director
was aware or should have been aware of a risk of serious injury to the
Registrant or its stockholders, for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Registrant or its stockholders, for improper transactions between
the director and the Registrant and for improper distributions to stockholders
and loans to directors and officers. This provision also does not affect a
director's responsibilities under any other laws, such as the federal securities
laws or state or federal environmental laws.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Number Description
- -------------- -----------
4 Mobile Mini, Inc. Amended and Restated 1994 Stock Option Plan
5 Opinion of Counsel
23.1 Consent of Independent Public Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (Contained within Signature Page)
3
<PAGE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tempe, State of Arizona, on this 4th day of December,
1997.
MOBILE MINI, INC.
By: /s/ Steven G. Bunger
-----------------------------------------
Steven G. Bunger,
President and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned hereby authorizes Lawrence Trachtenberg as his
attorney-in-fact to execute in the name of each such person and to file such
amendments (including post-effective amendments) to this registration statement
as the Registrant deems appropriate and appoints such person as attorney-in-fact
to sign on his behalf amendments, exhibits, supplements and post-effective
amendments to this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this to Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Steven G. Bunger President, Chief Executive Officer December 4, 1997
- -------------------------------------- and Director
Steven G. Bunger (principal executive officer)
/s/ Lawrence Trachtenberg Executive Vice President, Chief December 4, 1997
- -------------------------------------- Financial Officer and Director
Lawrence Trachtenberg (principal financial and accounting officer)
/s/ Richard E. Bunger Chairman of the Board and Director December 4, 1997
- -------------------------------------- of Product Research and Market
Richard E. Bunger Development
/s/ George E. Berkner Director December 4, 1997
- --------------------------------------
George E. Berkner
/s/ Ronald J. Marusiak Director December 4, 1997
- --------------------------------------
Ronald J. Marusiak
</TABLE>
5
Exhibit 4
---------
MOBILE MINI, INC.
AMENDED AND RESTATED
1994 STOCK OPTION PLAN
(as amended through November 12, 1997)
1. PURPOSE OF PLAN.
(a) General Purpose. The purpose of THE MOBILE MINI, INC. AMENDED AND
RESTATED 1994 STOCK OPTION PLAN ("Plan") is to further the interests of Mobile
Mini, Inc., a Delaware corporation (the "Corporation") and its stockholders by
providing an incentive based form of compensation to the directors, officers,
other key employees of the Corporation and providers of various services to the
Corporation, and by encouraging such persons to invest in shares of the
Corporation's Common Stock, thereby acquiring a proprietary interest in its
business and an increased personal interest in its continued success and
progress and ongoing inducement to remain in the Corporation's employ.
(b) Incentive Stock Options. Some one or more of the options granted
under the Plan may be intended to qualify as an "incentive stock option" as
defined in Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and any grant of such an option shall clearly specify that such option
is intended to so qualify. If no such specification is made, an option granted
hereunder shall be intended to not qualify as an "incentive stock option," as
previously defined.
(c) Adoption of and Amendments to the Plan. The Plan was initially
adopted by the Board of Directors of the Corporation (the "Board") in August,
1994 and approved by the stockholders at the Corporation's 1994 annual meeting.
In July, 1996, the Board adopted an amendment to the Plan to increase from
343,125 to 543,125 the number of shares of the Corporation's common stock, $.01
par value (the "Common Stock") issuable pursuant to options granted under the
Plan, and the stockholders approved the amendment at the Corporation's 1996
annual meeting. On July 1, 1997, the Board adopted further amendments to the
Plan, including amendments (i) increasing to 750,000 the number of shares of
Common Stock issuable pursuant to options granted under the Plan, (ii)
increasing from 3,000 to 7,500 the number of shares of Common Stock subject to
options granted automatically to non-employee directors of the Corporation on
each August 1, commencing August 1, 1997, and eliminating any limitation on the
aggregate maximum number of shares that could be subject to options
automatically granted, and (iii) limiting to 150,000 the maximum number of
shares of Common Stock that may be granted to any salaried employee of the
Corporation in any calendar year, in order to comply with Section 162(m) of the
Code. The amendments were approved by the stockholders on November 12, 1997 at
the Corporation's 1997 annual meeting. This document incorporates all amendments
to the Plan which have been approved by the Board and the stockholders through
November 12, 1997.
<PAGE>
2. STOCK AND MAXIMUM NUMBER OF SHARES SUBJECT TO PLAN.
(a) Description of Stock and Maximum Shares Allocated. The stock
subject to the provisions of the Plan and issuable upon exercise of options
granted under the Plan are shares of Common Stock, $.01 par value, which may be
either unissued or treasury shares, as the Board may from time to time
determine. Subject to adjustments as provided in Section 7, the aggregate number
of shares of Common Stock covered by the Plan and issuable upon exercise of all
options granted hereunder shall be 750,000 shares, which shares shall be
reserved for use upon the exercise of options to be granted from time to time.
Provided, however, that in no event shall options to purchase more than 150,000
shares of Common Stock be granted to any salaried employee of the Company in any
one year.
(b) Restoration of Unpurchased Shares. If an option expires or
terminates for any reason prior to its exercise in full and before the term of
the Plan expires, the shares subject to, but not issued under, such option and
such shares shall again be available for other options thereafter granted.
3. ADMINISTRATION; AMENDMENTS.
(a) Administration by Committee.
(i) The Plan shall be administered by a committee of not less
than two persons that also serve on the Board (the "Compensation
Committee"), with full power to administer the Plan, to interpret the
Plan and to establish and amend rules and regulations for its
administration. All members of the Compensation Committee shall not,
during one year prior to service on the Compensation Committee, have
been granted or awarded any equity securities of the Corporation or of
any affiliate of the Corporation, or during such service on the
Compensation Committee receive a grant or award of any equity
securities of the Corporation or of any affiliate of the Corporation,
except for grants or awards made (A) prior to registration of the
Corporation's Common Stock under Section 12 of the Securities Exchange
Act of 1934 or (B) pursuant to a plan which meets the conditions of
Regulation ss.240.16b-3 of the Securities Exchange Act.
(ii) In accordance with Section 3(a)(i)(B) above, effective
August 1, 1997 and on each August 1 thereafter throughout the term of
this Plan, each of the members of the Compensation Committee and each
other Director of the Corporation who is not an employee of the
Corporation shall be granted an option to purchase 7,500 shares of
Common Stock at 100% of the fair market value per share as determined
in Section 3(b) below, as of the date of such grant. Such option shall
vest and be non-forfeitable in the amount of 625 shares per month
commencing on August 31 in the year of grant and in the amount of 625
shares on the last day of each month thereafter provided the person
receiving such option remains a member of the Board of Directors. Any
option granted under this Section 3(a)(ii) shall (A) be exercisable
immediately in whole or in part upon the vesting thereof, (B) if not
otherwise forfeited or terminated hereunder, expire if not
-2-
<PAGE>
exercised prior to 5:00 p.m. Mountain Standard Time on the day
preceding the tenth anniversary of the effective date of grant of such
option and (C) be subject to all terms and provisions of this Plan.
(iii) In lieu of the grant of the option under Section
3(a)(ii), a member of the Compensation Committee may elect to be
compensated in cash in the amount of $3,000 per annum, which amount
will be payable to such member of the Compensation Committee $250 per
month commencing August 31, 1997 and on the last day of each month
thereafter so long as such person remains a member of the Board of
Directors.
(b) Exercise Price. Upon the grant of any option, the Compensation
Committee shall specify the exercise price for the shares issuable upon its
exercise. In no event may an option exercise price per share be less than 100%
of the fair market value per share of the Corporation's Common Stock on the date
such option or right is granted. Fair market value on any particular day shall
be determined as follows:
(i) If the shares of Common Stock are listed or admitted to
trading on any securities exchange, the fair market value shall be the
closing sales price on such day on the New York Stock Exchange on such
other securities exchange on which such stock is then listed or
admitted to trading, or if no sale takes place on such day on any such
exchange, on the next preceding day on which sales occur;
(ii) If the shares of Common Stock are not then listed or
admitted to trading on any securities exchange, the fair market value
shall be the closing sales price on such day or, if no sale takes place
on such day, on the next preceding day on which sales occur in the
over-the-counter market as furnished by the National Association of
Securities Dealers Automated Quotations ("NASDAQ"), or if NASDAQ at the
time is not engaged in the business of reporting such prices, as
furnished by any similar firm then engaged in such business and
selected by the Board; or
(iii) If the shares of Common Stock are not then listed or
admitted to trading in the over-the-counter market, the fair market
value shall be the amount determined by the Board in a manner
consistent with Treasury Regulation ss. 20.2031-2 promulgated under the
Code or such other manner prescribed by the Secretary of the Treasury
or the Internal Revenue Service.
(c) Interpretation. The interpretation and construction by the
Compensation Committee of the terms and provisions of this Plan and of the
agreements governing options and rights granted under the Plan shall be final
and conclusive except for the grant of options or payment of cash to the members
of the Compensation Committee which shall be governed by the Board. No member of
the Compensation Committee shall be liable for any action taken or determination
made in good faith.
-3-
<PAGE>
(d) Amendments to Plan. The Compensation Committee may, without action
on the part of the stockholders of the Corporation, make such amendments to,
changes in and additions to the Plan as it may, from time to time, deem proper
and in the best interests of the Corporation; provided that the Compensation
Committee may not, without consent of the optionholder, take any action which
disqualifies any option granted under the Plan as an incentive stock option for
treatment as such or which affects or impairs the rights of the holder of any
option outstanding under the Plan, and further provided that, except as provided
in Section 7, the Board may not, without the approval of the Corporation's
stockholders, (i) increase the aggregate number of shares of Common Stock
subject to the Plan, (ii) change the class of persons eligible to receive
options, (iii) modify the period within which options may be granted, (iv)
modify the period within which options may be exercised, the exercise price or
the terms upon which options may be exercised, or (iv) increase the material
benefits accruing to participants under the Plan.
(e) Ratification By Compensation Committee. The Board may act in lieu
of the Compensation Committee in administering, granting options under,
construing and interpreting the Plan contingent upon and subject to ratification
by the Compensation Committee.
4. PARTICIPANTS; DURATION OF PLAN.
(a) Eligibility and Participation. Options may be granted in the total
amount for the period as allocated by the Board as provided in Section 4(b)
below only to persons who at the time of grant are directors, key executive
employees, key managerial employees, or key supervisory employees of the
Corporation or to such other persons which provide services to the Corporation
as determined by the Board, whether or not such persons are also members of the
Board; provided, however, that no incentive stock option may be granted to a
director of the Corporation unless such person is also a key executive employee,
key managerial employee, or key supervisory employee of the Corporation.
(b) Allotment. The Board shall determine the aggregate number of shares
of Common Stock which may be optioned from time to time but the Compensation
Committee shall have sole authority to determine the number of shares and the
recipient thereof to be optioned at any time. The Compensation Committee shall
not be required to grant all options allocated by the Board for any given period
if it determines, in its sole and exclusive judgment, that such grant is not in
the best interests of the Corporation. The grant of an option to any person
shall neither entitle such individual to, nor disqualify such individual from,
participation in any other grant of options under the Plan.
(c) Duration of Plan. The term of the Plan, unless previously
terminated by the Board, is ten years commencing on the date of adoption of the
Plan by the Board. No option shall be granted under the Plan unless granted
within ten years of the adoption of the Plan by the Board, but options
outstanding on that date shall not be terminated or otherwise affected by virtue
of the Plan's expiration.
-4-
<PAGE>
5. TERMS AND CONDITIONS OF OPTIONS AND RIGHTS.
(a) Individual Agreements. Options granted under the Plan shall be
evidenced by agreements in such form as the Board from time to time approves,
which agreements shall substantially comply with and be subject to the terms of
the Plan, including the terms and conditions of this Section 5.
(b) Required Provisions. Each agreement shall state (i) the total
number of shares to which it pertains, (ii) the exercise price for the shares
covered by the option, (iii) the time at which the option becomes exercisable,
(iv) the scheduled expiration date of the option, (v) the vesting period(s) for
such options, and (vi) the timing and conditions of issuance of any stock option
exercise.
(c) Period. No option granted under the Plan shall be exercisable for a
period in excess of ten years from the date of its grant, subject to earlier
termination in the event of termination of employment, retirement or death of
the holder as provided in Section 6 or otherwise set forth in the agreement
granting the option. An option may be exercised in full or in part any time or
from time to time during the term thereof, or provide for its exercise in stated
installments at stated times during such term.
(d) No Fractional Shares. Options shall be granted and exercisable only
for whole shares; no fractional shares will be issuable upon exercise of any
option granted under the Plan.
(e) Method of Exercising Option. Options shall be exercised by written
notice to the Corporation, addressed to the Corporation at its principal place
of business. Such notice shall state the election to exercise the option and the
number of shares with respect to which it is being exercised, and shall be
signed by the person exercising the option. Such notice shall be accompanied (i)
by the certificate described in Section 8(b) and (ii) by payment in full of the
exercise price for the number of shares being purchased. Payment may be made in
cash or by bank cashier's check or by tendering duly endorsed certificates for
shares of the Corporation's Common Stock then owned by the optionholder. The
Corporation shall deliver a certificate or certificates representing the option
shares to the purchaser as soon as practicable after payment for those shares
has been received. If an option is exercised pursuant to Section 6(c) by any
person other than the optionholder, such notice shall be accompanied by
appropriate proof of the right of such person to exercise the option. All shares
that are purchased and paid for in full upon the exercise of an option shall be
fully paid and non-assessable.
(f) No Rights of a Stockholder. An optionholder shall have no rights as
a stockholder with respect to shares covered by an option. No adjustment will be
made for dividends with respect to an option for which the record date is prior
to the date a stock certificate is issued upon exercise of an option. Upon
exercise of an option, the holder of the shares of Common Stock so received
shall have all rights of a stockholder of the Corporation as of the date of
issuance.
-5-
<PAGE>
(g) Compliance with Law. No shares of Corporation Common Stock shall be
issued or transferred upon the exercise of any option unless and until the
following occurs:
(i) All legal requirements applicable to the issuance or
transfer of such shares have been complied with; and
(ii) All requirements of any national securities exchange or
association upon which the shares are listed, traded or quoted have
been met, in each case to the satisfaction of the Board and free of any
conditions unacceptable to the Compensation Committee. The Compensation
Committee shall have the right to condition the issuance of any shares
made to any person hereunder on such person's undertaking in writing to
comply with such restrictions on his or her subsequent disposition of
such shares as the Compensation Committee shall deem necessary or
advisable as a result of any applicable law, regulation or official
interpretation thereof, and a legend may be placed on the certificates
representing such shares to reflect any such restriction.
(h) Other Provisions. The option agreements may contain such other
provisions as the Board deems necessary to effectuate the sense and purpose of
the Plan, including covenants on the holder's part not to compete and remedies
to the Corporation in the event of the breach of any such covenant.
6. TERMINATION OF EMPLOYMENT; ASSIGNABILITY; DEATH.
(a) Termination of Employment. If any optionholder ceases to be a
director or employee of the Corporation, or ceases to render services pursuant
to a consulting, management or other agreement, other than for death, disability
or discharge for cause, such holder (or its successors in the case of the
holder's death after the termination of employment or directorship) may, within
three months after the date of termination, but in no event after the stated
expiration date of the option, purchase some or all of the shares with respect
to which such optionholder was entitled to exercise such option or exercise the
rights which such holder held, on the date such employment or directorship
terminated and the option shall thereafter be void for all purposes. Any
termination of an agreement pursuant to which services are rendered to the
Corporation by any party who is an optionholder, without a renewal of that
agreement or entry into a similar successor agreement, may be treated as a
termination of the employment of the third party.
(b) Assignability. No option granted under the Plan or the privileges
conferred thereby shall be assignable or transferable by a holder other than by
will or the laws of descent and distribution, and such option shall be
exercisable by such holder during the lifetime of the holder only.
(c) Disability. If the employment or directorship of the optionholder
is terminated due to disability, the optionholder may exercise the options, in
whole or in part, to the extent they were exercisable on the date when the
optionholder's employment or directorship terminated, at
-6-
<PAGE>
any time prior to the expiration date of the options or within one year of the
date of termination of employment or directorship, whichever is earlier.
(d) Discharge for Cause. If the employment or directorship of the
optionholder with the Corporation is terminated due to discharge for cause, the
options shall terminate upon receipt by the optionholder of notice of such
termination or the effective date of the termination, whichever is earlier.
Discharge for cause shall include discharge for personal dishonesty, willful
misconduct in performance of duties, failure, impairment or inability to perform
required duties, inefficiencies or omissions in performing required duties,
breach of fiduciary duty or conviction of any felony or crime of moral
turpitude. The Compensation Committee shall have the sole and exclusive right to
determine whether the optionholder has been discharged for cause for purposes of
the Plan and the date of such discharge.
(e) Death of Holder. If an optionholder dies while in the Corporation's
employ, an option shall be exercisable until the stated expiration date thereof
by the person or persons ("successors") to whom the holder's rights pass under
will or by the laws of descent and distribution, but only to the extent that the
holder was entitled to exercise the option at the date of death. An option may
be exercised (and payment of the option price made in full) by the successors
only after written notice to the Corporation, specifying the number of shares to
be purchased or rights to be exercised. Such notice shall comply with the
provisions of Section 5(e), and shall be accompanied by the certificate required
by Section 8(b).
7. CERTAIN ADJUSTMENTS.
(a) Capital Adjustments. Except as limited by Section 422 of the code,
the aggregate number of shares of Common Stock subject to the Plan, the number
of shares covered by outstanding options, and the price per share stated in such
options shall be proportionately adjusted for any increase or decrease in the
number of outstanding shares of Common Stock of the Corporation resulting from a
subdivision or consolidation of shares or any other capital adjustment or the
payment of a stock dividend or any other increase or decrease in the number of
such shares effected without receipt by the Corporation of consideration
therefor in money, services or property.
(b) Mergers, Etc. Except as limited by the provisions of Section 422 of
the Code, if the Corporation is the surviving corporation in any merger or
consolidation, any option granted under the Plan shall pertain to and apply to
the securities to which a holder of the number of shares of Common Stock subject
to the option would have been entitled. A dissolution or liquidation of the
Corporation shall cause every option outstanding hereunder to terminate, unless
specifically provided otherwise by the Board. A merger or consolidation in which
the Corporation is not the surviving corporation shall also cause every option
outstanding hereunder to terminate, unless specifically provided otherwise by
the Board, but each holder shall have the right immediately prior to a merger or
consolidation in which the Corporation is not the surviving corporation, to
exercise such option in whole or in part without regard to any vesting
requirements or installment provisions contained in the option agreement;
provided that if the
-7-
<PAGE>
number of shares qualified as being issued under an incentive stock option plan
at a similar price is afforded a holder under this Plan, subject to proportional
adjustment pursuant to the merger or consolidation agreement, then such
incentive stock options outstanding hereunder may, but shall not be required to,
be terminated.
8. DELIVERY OF STOCK; LEGENDS; REPRESENTATIONS.
(a) Legend on Certificates. All certificates representing shares of
Common Stock issued upon exercise of options granted under the Plan shall be
endorsed with a legend reading as follows:
The shares of Common Stock evidenced by this
certificate have been issued to the registered owner in
reliance upon written representations that these shares
have been purchased solely for investment. These shares
may not be sold, transferred or assigned unless in the
option of the Corporation and its legal counsel such sale,
transfer or assignment will not be in violation of the
Securities Act of 1933, as amended, and the Rules and
Regulations thereunder.
(b) Private Offering for Investment Only. The options are and shall be
made available only to a limited number of present and future key executives and
key employees who have knowledge of the Corporation's financial condition,
management and its affairs. The Plan is not intended to provide additional
capital for the Corporation, but to encourage stock ownership among the
Corporation's key personnel. By the act of accepting an option, each
optionholder agrees (i) that, if he or his successors exercise his option, he or
his successors will purchase the subject shares solely for investment and not
with any intention at such time to resell or redistribute those shares, and (ii)
that he or his successors will confirm such intention by an appropriate
certificate at the time the option is exercised. However, the neglect or failure
to execute such a certificate shall not limit or negate the foregoing agreement.
(c) Registration Statement. If a Registration Statement covering the
shares of Common Stock issuable upon the exercise of options granted under the
Plan is filed under the Securities Act of 1933, as amended, and is declared
effective by the Securities and Exchange Commission, the provisions of Section
8(a) relating to endorsement of a restrictive legend and the provisions of
Securities 8(b) relating to investment covenants shall terminate during the
period that the Registration Statement, as periodically amended, remains
effective.
9. APPLICATION OF FUNDS.
The proceeds received by the Corporation from the sale of Common Stock
pursuant to the exercise of options will be used for general corporate purposes.
-8-
Exhibit 5.1
-----------
OPINION OF BRYAN CAVE LLP
BRYAN CAVE LLP
2800 North Central Avenue
21st Floor
Phoenix, Arizona 85004
December 4, 1997
Mobile Mini, Inc.
1834 West Third Street
Tempe, Arizona 85281
Dear Sirs:
We are acting as counsel to Mobile Mini, Inc. (the "Company") in
connection with the Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"), covering
750,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), issuable in connection with the Mobile Mini, Inc. Amended and
Restated 1994 Stock Option Plan (the "Plan").
We have examined the originals, or certified, conformed or reproduction
copies, of all such records, agreements, instruments and documents as we have
deemed relevant or necessary as the basis for the opinion hereinafter expressed.
In all such examinations, we have assumed the genuineness of all signatures on
original or certified copies and the conformity to original or certified copies
of all copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to such opinion, we have relied upon, and assumed the
accuracy of, certificates and oral or written statements and other information
of or from public officials, officers or representatives of the Company, and
others.
Based upon the foregoing, we are of the opinion that, when issued in
accordance with the Plan, the shares of Common Stock will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
In giving this consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act.
Very truly yours,
BRYAN CAVE LLP
Exhibit 23.1
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 24, 1997
(exxcept with respect to the matter discussed in Note 1-Restatement, as to which
the date is August 7, 1997), included in Mobile Mini, Inc.'s Form 10-K/A-3 for
the year ended December 31, 1996 and to all references to our firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona
December 4, 1997
