exv10w8






Exhibit 10.8




2009 AMENDMENT

TO

AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     WHEREAS, MOBILE MINI, INC., a Delaware corporation (the “Company”) and STEVEN G. BUNGER (the
“Executive”) entered into an Amended and Restated Employment Agreement as of May 28, 2008 (the
“Employment Agreement’); and



     WHEREAS, in order to comply with the requirements of Section 162(m) of the Internal Revenue
Code of 1986, as amended (the “Code”) and other applicable regulations, rulings, and Code
provisions, the Company and the Executive desire to amend the Employment Agreement.



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the parties hereby represent, covenant and agree to amend the Employment Agreement as follows
effective as of January 1, 2009:



     1. Section 6(a)(v) is amended by the addition of “until separation from service (but not any
other date)” after the phrase “Executive has deferred.” The next sentence thereafter is amended
and restated to read as follows (revisions are underlined):




     In addition, in connection with the termination of the Executive’s employment
hereunder by the Company for Disability or by reason of the Executive’s death, the
Company shall pay the Executive (or his estate, as applicable), not later than 30
days (except as otherwise may be required under Section 25(b) of this Agreement
if the Executive is a “specified employee” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”)) following the date of
Disability or death, as the case may be, an amount (which shall be in lieu of any
target bonus or other bonus plan amount that might otherwise for any reason be or be
deemed to be payable directly or indirectly in connection with the fiscal year in
which such termination occurred), an amount equal to the product of (I) the average
of the cash bonus amounts (if any) paid by the Company to the Executive in relation
to the two fiscal years immediately preceding the year in which such termination
occurs, multiplied by (II) a fraction, the numerator is the number of days in the
year that were elapsed as of the date of the termination of employment and the
denominator is 365; provided that if such thirty (30) day period begins in one
calendar year and ends in another, the Executive and/or his beneficiary shall not
have the right to designate the taxable year of payment.



     2. Section 6(b)(ii) and Section 6(c)(ii) are amended to replace the term “Target Bonus Amount”
with “Payment Amount” and Section 6(b)(iii) is amended in its entirety to provide as follows:




     (iii) except as may otherwise be determined in accordance with Revenue Ruling
2008-13 (on a basis consistent in all material respects among all executive officers
whose compensation, or the deductibility thereof by the Company, is



 









 







affected by Section 162(m) of the Code or any successor provision thereto) by the
Compensation Committee at the time of grant of such equity-based award:




          (A) All service-based restrictions on outstanding equity-based awards
(including, without limitation, restricted stock and performance stock awards) then
held by the Executive shall lapse;




          (B) All performance targets and goals applicable to such equity-based awards in
respect of any past or future period must continue to be satisfied for each period
relevant to such award;




          (C) Any equity-based award shall be paid at the time and in the form specified
in the Mobile Mini, Inc. 2006 Equity Incentive Plan or the relevant plan under which
such award is outstanding; and




          (D) All stock options and stock appreciation rights granted to the Executive
shall become fully (100%) vested and shall become immediately exercisable and the
Company shall permit the Executive (or his estate), to exercise the same at any time
during the 90-day period following such termination; and



     3. Section 6(d) is amended in its entirety to provide as follows (revisions are underlined):




     (d) Time of Payment; Adjustment for Taxes. The amounts provided for in
Sections 6(a), 6(b)(i) and (ii), and 6(c)(i) and (ii) shall be paid within twenty
eight (28) days after the Executive’s Termination Date (except as otherwise may
be required under Section 25(b) of this Agreement if the Executive is a “specified
employee” within the meaning of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”)); provided that if such twenty eight (28) day
period begins in one calendar year and ends in another, the Executive and/or his
beneficiary shall not have the right to designate the taxable year of payment.
In the event the Executive’s severance and other benefits provided for in
this Section 6 constitute “parachute payments” within the meaning of Section 280G of
the Code and, but for this subsection, would be subject to the excise tax imposed by
Section 4999 of the Code, then the Executive’s severance and other benefits
under this Section 6 will be payable either in full or in such lesser amount
as would result, after taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Section 4999, in the Executive’s receipt
on an after-tax basis of the greatest amount of severance and other benefits.
All determinations to be made pursuant to this Section 6(d), including without
limitation whether partial payment or payment in full will provide the greatest
after-tax benefit to the Executive and the amount of any such partial payment to be
made, shall be made by an independent public accounting firm selected by the Company
and reasonably acceptable to the Executive and such determinations shall be binding
on the Company and the Executive. If the payments and benefits under Section 6 are
required to be reduced, the cash severance shall be reduced



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first, followed by a reduction in the accelerated vesting of any equity awards,
and last by the reduction of any other benefits.



     4. The following new Section 25 is added:



          25. Section 409A.





     (a) To the extent applicable, it is intended that this Agreement comply with
the provisions of Section 409A of the Code. This Agreement will be administered and
interpreted in a manner consistent with this intent. The Company agrees to take all
reasonable steps to ensure that Executive shall not be subject to any penalties with
respect to any payments received hereunder. In the event that any guidance is
issued by the Internal Revenue Service, or if a judicial decision is rendered, to
the effect that arrangements similar to this Agreement do not satisfy the
requirements of Section 409A, the Company and Executive agree to take whatever
reasonable actions may be necessary at such time in order to ensure that (i) the
payments under this Agreement shall be in compliance with Section 409A and (ii) the
Executive shall not be subject to any penalty under Section 409A with respect to his
receipt of such payments.




     (b) Notwithstanding anything contained herein to the contrary, any payments on
account of a termination of employment that are subject to Section 409A shall not be
made until Executive would be considered to have incurred a “separation from
service” from the Company within the meaning of Section 409A. To the extent
required in order to avoid accelerated taxation and/or tax penalties under Section
409A, amounts that would otherwise be payable and benefits that would otherwise be
provided pursuant to this Agreement during the six-month period immediately
following Executive’s separation from service shall, if Executive is a “specified
employee” within the meaning of Section 409A at the time of his separation from
service, instead be paid on the first business day after the date that is six months
following Executive’s separation from service (or Executive’s death, if earlier).




     (c) For purposes of this Agreement, each amount to be paid or benefit to be
provided to Executive pursuant to this Agreement shall be construed as a separate
identified payment for purposes of Section 409A.




     (d) With respect to expenses eligible for reimbursement under the terms of the
Agreement, (i) the amount of such expenses eligible for reimbursement in any taxable
year shall not affect the expenses eligible for reimbursement in another taxable
year; (ii) any reimbursements of such expenses shall be made no later than the end
of the calendar year following the calendar year in which the related expenses were
incurred, except, in each case, to the extent that the right to reimbursement does
not provide for a “deferral of compensation” within the meaning of Section 409A;
provided, however that with respect to any reimbursements for any taxes to which
Executive becomes entitled



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under the terms of this Agreement, the payment of such reimbursements shall be
made by the Company no later than the end of the calendar year following the
calendar year in which Executive remits the related taxes; and (iii) the right to
reimbursement is not subject to liquidation or exchange for any other benefit.



     IN WITNESS WHEREOF, the parties hereto have executed this 2009 Amendment to Amended and
Restated Employment Agreement as of January 1, 2009, but on the actual dates indicated below.



	 	 	 	 	 	 	 	 	 
	 	 	COMPANY:	 	MOBILE MINI, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Jeffrey S. Goble
 

	 	 
	 

	 	 	 	 	 	Name: Jeffrey S. Goble	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title: Chairman, Compensation Committee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:
	 	December 21, 2009	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	EXECUTIVE:	 	 	 	/s/ Steven G. Bunger	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Steven G. Bunger	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:
	 	December 21, 2009	 	 







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