THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE HEREUNDER HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED UNLESS
REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR IN
THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY PURSUANT TO AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS.
STOCK PURCHASE WARRANT
----------------------
Company: Mobile Mini, Inc., a Delaware corporation
Number of Shares: 50,000
Class of Stock: Common Stock
Initial Exercise Price: $5.00 per share
Issued as of: July 31, 1997
Expiration Date: As described in Section 1
FOR VALUE RECEIVED, the adequacy and receipt of which are hereby
acknowledged, MOBIL MINI, INC., a Delaware corporation, hereby certifies that
ARIZONA LAND INCOME CORPORATION, an Arizona corporation, and its successors and
assigns, are entitled to purchase from the Company at any time and from time to
time on and after the date that is 180 days subsequent to the date hereof until
5:00 p.m. Arizona local time on the Expiration Date at an initial Exercise Price
(as described in Section 1), fully paid and nonassessable shares of Common Stock
of the Company, on the terms and conditions hereinafter set forth. The number of
such shares of Common Stock and the Exercise Price are subject to adjustment as
provided in the Warrant.
1. Certain Definitions. As used in this Warrant, the following terms have
the following definitions:
"Additional Shares of Common Stock" means all shares of Common Stock
issued or issuable by the Company after the date of this Warrant, other than
shares of Common Stock issuable (a) upon the exercise of warrants issued or sold
in connection with the Company's 1994 initial public offering, (b) upon the
exercise of options issued pursuant to the Company's stock option plans in
effect from time to time so long as the exercise price is not less than the Fair
Value of the Common Stock on the date such options are granted, and (c) pursuant
to the
exercise of warrants issued in connection with a Financing Transaction as
described in Section 1(b) of the Note.
"Common Stock" means the Company's Common Stock, par value $0.01 per
share, and includes any common stock of the Company of any class or classes
resulting from any reclassification or reclassifications thereof which is not
limited to a fixed sum or percentage of par value in respect of the rights of
the holders thereof to participate in dividends and in the distribution of
assets upon the voluntary or involuntary liquidation, dissolution or winding up
of the Company.
"Company" means MOBILE MINI, INC., a Delaware corporation.
"Convertible Securities" means evidence of indebtedness, shares of
stock or other securities which are at any time directly or indirectly
convertible into or exchangeable for Additional Shares of Common Stock.
"Current Market Price" of a share of Common Stock or of any other
security as of a relevant date means: (i) the Fair Value thereof as determined
in accordance with clause (ii) of the definition of Fair Value with respect to
Common Stock or any other security that is not listed on a national securities
exchange or traded on the over-the-counter market or quoted on NASDAQ, and (ii)
the closing price on such date (excluding any trades which are not bona fide
arm's length transactions) with respect to Common Stock or any other security
that is listed on a national securities exchange or traded on the
over-the-counter market or quoted on NASDAQ. The closing price for each day
shall be (i) the last sale price of shares of Common Stock or such other
security on such date or, if no such sale takes place on such date, the average
of the closing bid and asked prices thereof on such date, in each case as
officially reported on the principal national securities exchange on which the
same are then listed or admitted to trading, or (ii) if no shares of Common
Stock or if no securities of the same class as such other security are then
listed or admitted to trading on any national securities exchange, the average
of the reported closing bid and asked prices thereof on such date in the
over-the-counter market as shown by the National Association of Securities
Dealers automated quotation system or, if no shares of Common Stock or if no
securities of the same class as such other security are then quoted in such
system, as published by the National Quotation Bureau, Incorporated or any
similar successor organization, and in either case as reported by any member
firm of the New York Stock Exchange selected by the Warrantholders.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Period" means the period commencing on the date that is 180
days subsequent to the date hereof and ending at 5:00 p.m. Arizona local time on
the Expiration Date.
"Exercise Price" means initially Five Dollars ($5.00) per share,
subject to adjustment as provided in this Warrant.
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"Expiration Date" means the date that is five (5) years after the date
hereof.
"Fair Value" means: (i) with respect to a share of Common Stock or any
other security, the Current Market Price thereof, and (ii) with respect to any
other property, assets, business or entity, an amount determined in good faith
by the board of Directors of the Company.
"Indemnified Party" and "Indemnifying Party" have the meanings set
forth in Section 11(e)(iii).
"Lender" means ARIZONA LAND INCOME CORPORATION, an Arizona
corporation, and its successors and assigns.
"Note" means that certain Senior Subordinated Promissory Note dated
July 31, 1997 by the Company in favor of the Lender (as amended, restated,
supplemented or otherwise modified from time to time).
"Registrable Stock" means: (i) all Warrant Shares which are issuable
to the Warrantholders pursuant to the Warrants, whether or not the Warrants have
in fact been exercised and whether or not such Warrant Shares have in fact been
issued, (ii) all Warrant Shares acquired by the Warrantholders pursuant to the
Warrants, and (iii) any shares of Common Stock, whether or not such shares of
Common Stock have in fact been issued, and stocks or other securities of the
Company issued upon conversion of, in a stock split or reclassification of, or a
stock dividend or other distribution on, or in substitution or exchange for, or
otherwise in connection with, such Warrant Shares or in a merger or
consolidation involving the Company or its assets; provided, however, that the
foregoing securities shall not be considered Registrable Stock if they were
previously registered pursuant to Section 11 hereunder or if they are
transferable without registration pursuant to Rule 144(k) under the Securities
Act. For purposes of Section 11, a Warrantholder of record shall be treated as
the record holder of the related Warrant Shares and other securities issuable
pursuant to the Warrants.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant(s)" means this Warrant and any warrants issued in exchange or
replacement of this Warrant or upon transfer hereof.
"Warrantholder(s)" means Lender and its successors and assigns.
"Warrant Shares" means shares of Common Stock issuable to
Warrantholders pursuant to the Warrants.
3
2. Exercise of Warrant.
(a) Method of Exercise. This Warrant may be exercised, in whole or in
part, at any time and from time to time during the Exercise Period by written
notice to the Company (accompanied by physical surrender of this Warrant) and
upon payment to the Company of the Exercise Price (subject to adjustment as
provided herein) for the shares of Common Stock in respect of which the Warrant
is exercised.
(b) Mandatory Exercise. Commencing two (2) years following the date of
issuance of this Warrant, if the closing price of the Company's common stock
(excluding any trades that are not bona fide arm's length transactions) shall
thereafter exceed $8.75 per share (as adjusted to reflect any stock split,
reverse stock split, stock dividend or other changes in the capitalization of
the Company from time to time and excluding any trades which are not bona fide
arm's length transactions) during each trading day of any period of not less
than twenty (20) consecutive trading days (a "Measurement Period"), the Company
shall have the option of requiring the Warrantholders to exercise this Warrant
in whole or, at the Company's election, in part. If the Company elects to
require the Warrantholders to so exercise this Warrant, the Company shall
provide the Warrantholders with written notice thereof within five (5) trading
days following the end of the relevant Measurement Period, and the
Warrantholders thereafter shall, in accordance with the terms hereof, exercise
this Warrant or portion thereof as to which such notice relates within ninety
(90) days following receipt of such notice.
3. Form of Payout of Exercise Price. Anything contained herein to the
contrary notwithstanding, at the option of the Warrantholders, the Exercise
Price may be paid in any one or a combination of the following forms: (a) by
wire transfer to the Company, (b) by a certified or cashier's check to the
Company, (c) by the cancellation of any indebtedness owed by the Company and/or
any subsidiaries of the Company to the Warrantholder, and/or (d) by the
surrender to the Company of this Warrant, Warrant Shares, and/or the Note (or a
portion thereof), valued at par, having a Fair Value equal to the Exercise
Price.
4. Cashless Exercise. In lieu of exercising this Warrant as specified in
Sections 2 and 3 above, the Warrantholders may from time to time at the
Warrantholders' option convert this Warrant, in whole or in part, into a number
of shares of Common Stock of the Company determined by dividing (A) the
aggregate Fair Value of such shares or other securities otherwise issuable upon
exercise of this Warrant minus the aggregate Exercise Price of such shares by
(B) the Fair Value of one such share.
5. Certificates for Warrant Shares; New Warrant. The Company agrees that
the Warrant Shares shall be deemed to have been issued to the Warrantholders as
the record owners of such Warrant Shares as of the close of business on the date
on which payment for such Warrant Shares has been made (or deemed to be made by
cashless exercise) in accordance with the terms of this Warrant. Certificates
for the Warrant Shares shall be delivered to
4
Warrantholders within a reasonable time, not exceeding ten (10) days, after this
Warrant has been exercised. A new Warrant representing the number of shares, if
any, with respect to which this Warrant remains exercisable also shall be issued
to the Warrantholders within such time so long as this Warrant has been
surrendered to the Company at the time of exercise.
6. Adjustment of Exercise Price, Number of Shares and Nature of Securities
Issuable Upon Exercise of Warrants.
(a) Exercise Price; Adjustment of Number of Shares. The Exercise Price
shall be subject to adjustment from time to time as hereinafter provided. Upon
each adjustment of the Exercise Price, the Warrantholders shall thereafter be
entitled to purchase, at the Exercise Price resulting from such adjustment, a
number of shares determined by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
(b) Adjustment of Exercise Price Upon Issuance of Common Stock. In the
event that the Company shall at any time issue or sell any Additional Shares of
Common Stock or Convertible Securities, or declare any dividend or authorize any
other distribution upon any class of stock of the Company payable in Additional
Shares of Common Stock or Convertible Securities, and the Company shall receive
consideration in respect of such issuance, sale, dividend or distribution in an
amount less than the Fair Value of the securities so issued or sold or the
securities with respect to which such dividend or distribution relates, then, in
each such event, the Exercise Price in effect immediately prior to such
issuance, sale, dividend or distribution shall be reduced to a number which
shall be calculated by dividing (A) an amount equal to the sum of (1) the number
of shares of Common Stock outstanding immediately prior to such issuance, sale,
dividend or distribution, multiplied by the then existing Exercise Price plus
(2) the aggregate consideration, if any, received by the Company upon such
issuance, sale, dividend or distribution, by (B) the total number of shares of
Common Stock outstanding immediately after such issuance, sale, dividend or
distribution. In case at any time on or after the date hereof, the Company shall
declare any dividend, or authorize any other distribution, upon any stock of the
Company of any class, payable in Additional Shares of Common Stock or by the
issuance of Convertible Securities, such declaration or distribution shall be
deemed to have been issued or sold (as of the record date) without
consideration. For purposes of this Section 6, the number of shares of Common
Stock outstanding at any given time shall not include shares owned or held by or
for the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock for the purposes of this Section 6.
(c) Reorganization, Reclassification, Consolidation, Merger or Sale.
If any capital reorganization or reclassification of the capital stock of the
Company, or any or any consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of
5
Common Stock shall be entitled to receive cash, stock, securities or assets with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provisions shall be made whereby the Warrantholders shall thereafter
have the right to purchase and receive upon the basis and upon the terms and
conditions specified in this Warrant upon exercise of this Warrant and in lieu
of the shares of the Common Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby,
such cash, shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for a number of outstanding shares of Common
Stock equal to the number of shares of such Common Stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby,
and in any such case appropriate provision shall be made with respect to the
rights and interests of the Warrantholders to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Exercise Price
and of the number of shares purchasable and receivable upon the exercise of this
Warrant) shall thereafter be applicable, as nearly as may be, in relation to any
shares of stock securities or assets thereafter deliverable upon the exercise
hereof.
(d) Company to Prevent Dilution. In case at any time or from time to
time conditions arise by reason of action taken by the Company which are not
adequately covered by the provisions of this Section 6, and which might
materially and adversely effect the exercise rights of the Warrantholders under
this Warrant, the Board of Directors of the Company shall, cause an appropriate
adjustment to the Exercise Price and the number of shares purchasable upon
exercise of the Warrants, so as to preserve, without dilution, the exercise
rights of the Warrantholders.
(e) Stock Splits and Reverse Splits. In case at any time the Company
shall subdivide its outstanding shares of Common Stock into a greater number of
shares, the Exercise Price in effect immediately prior to such subdivision shall
be proportionately reduced and the number of shares of Common Stock purchasable
pursuant to this Warrant immediately prior to such subdivision shall be
proportionately increased, and conversely, in case at any time the Company shall
combine its outstanding shares of Common Stock into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination shall be
proportionately increased and the number of shares of Common Stock purchasable
upon the exercise of this Warrant immediately prior to such combination shall be
proportionately reduced.
(f) Dissolution, Liquidation and Wind-Up. In case the Company shall,
at any time prior to the expiration of this Warrant, dissolve, liquidate or wind
up its affairs, the Warrantholders shall be entitled, upon the exercise of this
Warrant, to receive, in lieu of the shares of Common Stock of the Company which
such Warrantholders would have been entitled to receive, the same kind and
amount of assets as would have been issued, distributed or paid to such
Warrantholders upon any such dissolution, liquidation or winding up with respect
to such shares of Common Stock of the Company, had such Warrantholders been the
holders of record of the Warrant Shares receivable upon the exercise of this
Warrant on the record date for the
6
determination of those persons entitled to receive any such liquidating
distribution. After any such dissolution, liquidation or winding up which shall
result in any cash distribution in excess of the Exercise Price provided for by
this Warrant, the Warrantholders may, at each such Warrantholder's option,
exercise the same without making payment of the Exercise Price, and in such case
the Company shall, upon the distribution to said Warrantholders, consider that
said Exercise Price has been paid in full to it and in making settlement to said
Warrantholders, shall deduct from the amount payable to such Warrantholders an
amount equal to such Exercise Price.
(g) Adjustment Certificate. In each case of an adjustment in the
number of shares of Common Stock or other stock, securities or property
receivable on the exercise of the warrants, the Board of Directors of the
Company and the Company's Chief Financial Officer shall compute such adjustment
in accordance with the terms of this Warrant and prepare and duly execute and
deliver to the Warrantholders a certificate setting forth such adjustment and
showing in detail the facts upon which such adjustment is based.
7. Special Agreements of the Company.
(a) Reservation of Shares. The Company covenants and agrees that all
Warrant Shares will, upon issuance, be validly issued, fully paid and
nonassessable and free from all preemptive rights of any stockholder, and from
all taxes, liens and charges with respect to the issue thereof. The Company
further covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have
authorized, and reserved, a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant.
(b) Avoidance of Certain Actions. The Company will not, by amendment
of its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, issue or sale of securities or otherwise, avoid
or take any action which would have the effect of avoiding the observance or
performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in carrying out all of the
provisions of this Warrant and in taking all of such actions as may be necessary
or appropriate in order to protect the rights of the Warrantholders against
dilution or other impairment of their rights hereunder.
(c) Listing on Securities Exchanges; Registration. If, and so long as,
any class of the Company's Common Stock shall be listed on any national
securities exchange (as defined in the Exchange Act), the Company will, at its
expense, obtain and maintain the approval for listing upon official notice of
issuance of all Warrant Shares and maintain the listing of Warrant Shares after
their issuance; and the Company will so list on such national securities
exchange, and will maintain such listing of, any other securities that at any
time are issuable upon exercise of this Warrant if and at the time any
securities of the same class shall be listed on such national securities
exchange by the Company.
7
(d) Information Rights. So long as the Warrantholders hold this
Warrant or any of the Warrant Shares, the Company shall deliver to the
Warrantholders (i) promptly after mailing, copies of all communications to the
shareholders of the Company, and (ii) within two (2) business days after filing
with the SEC, all filings made by the Company under the Securities Act or the
Exchange Act.
(e) Compliance with Law. The Company shall comply with all applicable
laws, rules and regulations of the United States and of all states,
municipalities and agencies of any other jurisdiction applicable to the Company
and shall do all things necessary to preserve, renew and keep in full force and
effect and in good standing its corporate existence and authority necessary to
continue its business.
8. Fractional Shares. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. With respect to any
fraction of a share called for upon exercise hereof, such fraction shall be
rounded to the nearest whole share. A fraction of one-half shall be rounded up
to the next highest integer.
9. Notices of Stock Dividends, Subscriptions, Reclassifications,
Consolidations, Mergers, etc. If at any time: (i) the Company shall declare a
cash or stock dividend (or an increase in the then existing dividend rate), or
declare a dividend on Common Stock payable otherwise than in cash out of its net
earnings after taxes for the prior fiscal year, or (ii) the Company shall
authorize the granting to the holders of Common Stock of rights to subscribe for
or purchase any shares of capital stock of any class or of any other rights; or
(iii) there shall be any capital reorganization, or reclassification, or
redemption of the capital stock of the Company, or consolidation or merger of
the Company with, or sale of all or substantially all of its assets to, another
corporation or firm; or (iv) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company, then the Company shall
give to the Warrantholders at the addresses of such Warrantholders as shown on
the books of the Company, at least twenty (20) days prior to the applicable
record date hereinafter specified, a written notice summarizing such action or
event and stating the record date for any such dividend or rights (or, if a
record date is not to be selected, the date as of which the holders of Common
Stock of record entitled to such dividend or rights are to be determined), the
date on which any such reorganization, reclassification, consolidation, merger,
sale of assets, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected the holders of Common Stock
of record shall be entitled to effect any exchange of their shares of Common
Stock for cash (or cash equivalent), securities or other property deliverable
upon any such reorganization, reclassification, consolidation, merger, sale of
assets, dissolution, liquidation or winding up.
10. Registered Holder, Transfer of Warrants or Warrant Shares.
(a) Maintenance of Registration Books; Ownership of this Warrant. The
Company shall keep at its principal office a register in which the Company shall
provide for the registration, transfer and exchange of this Warrant. The Company
shall not at any time, except
8
upon the dissolution, liquidation or winding-up of the Company, close such
register so as to result in preventing or delaying the exercise or transfer of
this Warrant.
(b) Exchange and Replacement. To the extent permissible under any
applicable securities laws, this Warrant is exchangeable upon surrender hereof
by the registered holder to the Company at its principal office for new Warrants
of like tenor and date representing in the aggregate the right to purchase the
number of shares purchasable hereunder, each of such new Warrants to represent
the right to purchase such number of shares as shall be designated by said
registered holder at the time of surrender. This Warrant and all rights
hereunder are transferable in whole or in part upon the books of the Company by
the registered holder hereof in person or by duly authorized attorney, and new
Warrants shall be made and delivered by the Company, of the same tenor and date
as this Warrant but registered in the name of the transferee(s), upon surrender
of this Warrant, duly endorsed, to said office of the Company. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and upon surrender and cancellation
of this Warrant, if mutilated, the Company will make and deliver a new Warrant
of like tenor, in lieu of this Warrant, without requiring the posting of any
bond or the giving of any other security. This Warrant shall be promptly
canceled by the Company upon the surrender hereof in connection with any
exchange, transfer or replacement. The Company shall pay all expenses, taxes and
other charges payable in connection with the preparation, execution and delivery
of Warrants pursuant to this Section 10.
(c) Warrants and Warrant Shares Not Registered. The holder of this
Warrant, by accepting this Warrant, represents and acknowledges that this
Warrant and the Warrant Shares are not being registered under the Securities Act
on the grounds that the issuance of this Warrant and the offering and sale of
such Warrant Shares are exempt from registration under Section 4(2) of the
Securities Act as not involving any public offering.
11. Registration.
(a) Incidental Registration. Each time the Company shall determine to
file a registration statement under the Securities Act (other than on Form S-8
or Form S-4) in connection with the proposed offer and sale for money of any of
its equity securities by it or by any of its security holders, the Company will
give written notice of its determination to all holders of Registrable Stock.
Upon the written request of a holder of any Registrable Stock delivered to the
Company within fifteen (15) days following the Company's notice, the Company
will cause all such Registrable Stock, the holders of which have so requested
registration thereof, to be included in such registration statement, all to the
extent requisite to permit the sale or other disposition by the prospective
seller or sellers of the Registrable Stock to be so registered in accordance
with the terms of the proposed offering. If the registration statement is to
cover an underwritten distribution, the Company shall use its best efforts to
cause the Registrable Stock requested for inclusion pursuant to this Section
11(a) to be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters. If, in
9
the good faith judgment of the managing underwriter of such public offering, the
inclusion of all of the Registrable Stock requested to be registered would
materially and adversely affect the successful marketing of the other shares
proposed to be offered, then the amount of the Registrable Stock to be included
in the offering shall be reduced and the Registrable Stock and the other shares
to be offered (excluding shares to be offered by or for the account of the
Company) shall participate in such offering as follows: the Registrable Stock to
be included in such offering and the other shares of Common Stock to be included
in such offering shall each be reduced pro rata in proportion to the number of
shares of Common Stock proposed to be included in such offering by each holder
of such shares.
(b) Form S-3 Registration. If the Company becomes eligible to use Form
S-3 under the Securities Act or a comparable successor form, the Company shall
use its reasonable efforts to continue to qualify at all times for registration
on Form S-3 or such successor form. The holders of Registrable Stock shall have
a one-time right to request and have effected a registration of shares of
Registrable Stock on Form S-3 or such successor form for a public offering of
shares of Registrable Stock. Such request shall be in writing and shall state
the number of shares of Registrable Stock to be disposed of and the intended
method of disposition. In addition, the Company shall not be obligated to file
and effect a registration statement during the ninety (90) day period following
the end of its fiscal year. The Company may postpone the filing of the
registration statement required hereunder for a reasonable period of time, not
to exceed 90 days during any twelve month period, if the Company has been
advised by legal counsel that such filing would require the disclosure of a
material transaction or other matter and the Company determines reasonably and
in good faith that such disclosure would have a material adverse effect on the
Company. The Company shall give notice to all holders of Registrable Stock of
the receipt of a request for registration pursuant to this Section 11(b) and
shall provide a reasonable opportunity for such holders to participate in the
registration.
(c) Registration Procedures. If and whenever the Company is required
by the provisions of Section 11(a) or 11(b) to effect the registration of
Registrable Stock under the Securities Act, the Company will, at its expense, as
expeditiously as possible:
(i) In accordance with the Securities Act and the rules and
regulations of the Commission, prepare and file with the Commission a
registration statement on the form of registration statement appropriate with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective until the securities covered by such
registration statement to become and remain effective until the securities
covered by such registration statement have been sold, and prepare and file with
the Commission such amendments to such registration statement and supplements to
the prospectus contained therein as may be necessary to keep such registration
statement effective and such registration statement and prospectus accurate and
complete until the securities covered by such registration statement have been
sold; provided, however, that in no event shall the Company be required to keep
any such registration statement effective for a period in excess of twelve (12)
months (plus the
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number of days, if any, during such twelve (12) month period that the
Warrantholders shall be restricted from selling shares pursuant to Section 11(e)
hereof);
(ii) If the offering is to be underwritten, in whole or in
part, enter into a written underwriting agreement with the holders of the
Registrable Stock participating in such offering and the underwriter in form and
substance reasonably satisfactory to the Company, the managing underwriter of
the public offering and the holders of the Registrable Stock participating in
such offering;
(iii) Furnish to the holders of securities participating in
such registration and to the underwriters of the securities being registered
such reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters and
holders may reasonably request in order to facilitate the public offering of
such securities;
(iv) Use its best efforts to register to qualify the
securities covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such participating holders and
underwriters may reasonably request;
(v) Notify the holders participating in such registration,
promptly after it shall receive notice thereof, of the date and time when such
registration statement and each post-effective amendment thereto has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(vi) Notify such holders promptly of any request by the
Commission for the amending or supplementing of such registration statement or
prospectus or for additional information;
(vii) Prepare and promptly file with the Commission, and
promptly notify such holders of the filing of, such amendments or supplements to
such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event has
occurred as the result of which any such prospectus or any other prospectus as
then in effect may include an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(viii) In case any of such holders or any underwriter for
any such holders is required to deliver a prospectus at a time when the
prospectus then in circulation is not in compliance with the Securities Act or
the rules and regulations of the Commission, prepare promptly upon request such
amendments or supplements to such registration statement and such prospectus as
may be necessary in order for such prospectus to comply with the requirements of
the Securities Act and such rules and regulations;
11
(ix) Advise such holders, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such registration statement or the
initiation or threatening of any proceedings for that purpose and promptly use
its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(x) Prepare a prospectus supplement or post-effective
amendment to the registration statement or the related prospectus or any
document incorporated therein by reference or file any other required documents
so that, as thereafter delivered to the purchasers of the Registrable Stock, the
prospectus will not contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not misleading;
and
(xi) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to the Company's security holders earnings statements satisfying the provisions
of Section 11(a) of the Securities Act, no later than forty-five (45) days after
the end of any twelve (12) month period (or ninety (90) days, if such a period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Stock is sold to underwriters in an underwritten offering, or, if
not sold to underwriters in such an offering, (ii) beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of a registration statement.
(d) Expense of Registration. All expenses incident to the Company's
performance of or compliance with this Warrant (excluding discounts, commissions
or fees of underwriters, selling brokers, dealer managers or similar securities
industry professionals relating to the distribution of the Registrable Stock or
legal expenses of any person other than the Company) shall be borne by the
Company. The selling holders shall bear any legal expenses incurred by them in
connection with any registration pursuant to this Section 11.
(e) Suspension of Offers and Sales. If, during the effectiveness of a
registration statement filed pursuant to this Section 11, an intervening event
shall have occurred which, in the opinion of the Company's counsel, makes the
prospectus included in such registration statement no longer comply with the
Securities Act, after notice from the Company containing such fact, the
Warrantholders shall make no further sales or other dispositions, or offers
therefor, of securities under such registration statement until it receives from
the Company copies of a new, amended or supplemented prospectus complying with
the Securities Act as soon as practicable after such notice. The Company shall
keep the Warrantholders fully informed of the status of its efforts, which shall
be prompt and diligent, to cause such new, amended or supplemented prospectus to
be available for use by such Warrantholders.
(f) Indemnification.
(i) The Company hereby agrees to indemnify each of the
holders of Registrable Stock against all claims, losses, damages and liabilities
(or actions in respect thereof)
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arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, preliminary or final
prospectus, or other document incident to any such registration, qualification
or compliance (or in any related registration statement, notification or the
like) or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and to reimburse the holders of
Registrable Stock (including officers and directors of the same and controlling
persons) for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action; provided, however, the Company will not be liable in any such case to
the extent that any such claim, loss, damage or liability arises out of or is
based on any untrue statement or omission based upon written information
furnished to the Company by Warrantholders specifically for use therein.
(ii) The Warrantholders severally and not jointly agree to
indemnify the Company and its officers and directors and each person, if any,
who controls any thereof within the meaning of Section 15 of the Securities Act
and their respective successors against all claims, losses, damages and
liabilities (or actions in respect hereof) arising out of or based on any untrue
statement of a material fact contained in any prospectus, offering circular or
other document incident to any registration, qualification or compliance
relating to securities purchased pursuant to the Warrants (or in any related
registration statement, notification or the like) or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and will reimburse the
Company and each other person indemnified pursuant to this subsection (ii) for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage) liability or action;
provided, however, that this subsection (ii) shall apply only if (and only to
the extent that) such statement or omission was made in reliance upon written
information (including, without limitation, written negative responses to
inquiries) furnished to the Company by Warrantholders specifically for use in
such prospectus, or any such other document (or related registration statement,
notification or the like) or any amendment or supplement thereto.
(iii) Each party entitled to indemnification hereunder (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party (at such Indemnifying Party's expense) to assume
the defense of any claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be reasonably satisfactory to the Indemnified Party, and
the Indemnified Party may participate in such defense at such party's expense,
and provided further, that the omission by any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 11(f) except to the extent that the omission results in a
failure of actual notice to the Indemnifying Party and such Indemnifying Party,
in the defense of any
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such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation.
(iv) If the indemnification provided for in this Section
11(f) is unavailable or insufficient to hold harmless an Indemnified Party in
respect of any losses, claims, damages, liabilities, expenses or actions in
respect thereof referred to herein, then the Indemnifying Party shall contribute
to the amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages, liabilities, expenses or actions in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand, and the Indemnified Party on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities, expenses or actions as well as any other relevant equitable
considerations, including the failure to give the notice required hereunder. The
relative fault of the Indemnifying Party and the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by the
Indemnifying Party or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Warrantholders agree that it would
not be just and equitable if contributions pursuant to this Section 11(f) were
determined by pro rata allocation or by any other method of allocation which did
not take account of the equitable considerations referred to above. The amount
paid or payable to an Indemnified Party as a result of the losses, claims,
damages, liabilities or actions in respect thereof, referred to above, shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the contribution provisions of this Section 11(f), in
no event shall the amount contributed by any seller of Registrable Stock exceed
the aggregate net offering proceeds received by such seller from the sale of
Registrable Stock to which such contribution or indemnification claim relates.
No person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation.
(v) The indemnification required by this Section 11(f) shall
be made by periodic payments during the course of the investigation or defense,
as and when bills are received or expenses incurred. Anything contained herein
to the contrary notwithstanding, the liability of any holder of Registrable
Stock under this Section 11(f) shall not exceed the amount of the net proceeds
actually received by such holder from the sale of its Registrable Stock pursuant
to the registration, qualification, notification or compliance in respect of
which such liability arose.
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(g) Reporting Requirements Under Exchange Act. The Company shall
maintain the registration of its Common Stock under Section 12 of the Exchange
Act and shall keep effective such registration and shall timely file such
information, documents and reports the Commission may require or prescribe under
Section 13 of the Exchange Act, or otherwise. Immediately upon becoming subject
to the reporting requirements of either Section 13 or 15(d) of the Exchange Act,
the Company shall forthwith upon request, furnish any holder of Registrable
Stock (i) a written statement by the Company that it has complied with such
reporting requirements, (ii) a copy of the most recent annual or quarterly
report of the Company, and (iii) such other reports and documents filed by the
Company with the Commission as such holder may reasonably request in availing
itself of an exemption for the sale of Registrable Stock without registration
under the Securities Act. The Company acknowledges and agrees that the purpose
of the requirements contained in this Section 11(g) is to enable any such holder
to comply with the current public information requirement a contained in Rule
144 under the Securities Act should such holder ever wish to dispose of any of
the securities of the Company acquired by it without registration under the
Securities Act in reliance upon Rule 144 (or any other similar exemptive
provision). In addition, the Company shall take such other measures and file
such other information, documents and reports as shall hereafter be required by
the Commission as a condition to the availability of Rule 144 and Rule 144A
under the Securities Act (or any similar exemptive provision hereafter in
effect).
(h) Stockholder Information. The Company may require each holder of
Registrable Stock as to which any registration is to be effected pursuant to
this Section 11 to furnish the Company such information with respect to such
holder and the distribution of such Registrable Stock as shall be required by
law or by the Commission in connection therewith.
12. Representation and Warranties of the Company. The Company hereby
represents and warrants to and covenants with Lender, each Warrantholder, and
each holder of Warrant Shares that:
(a) Organization and Capitalization of the Company. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. As of the date hereof, the authorized capital of the
Company consists of 17,000,000 shares of Common Stock and 5,000,000 shares of
Preferred Stock, of which 6,739,324 shares of Common Stock and no shares of
Preferred Stock are issued and outstanding. The Company has, and at all times
during the Exercise Period will have, reserved for issuance pursuant to the
Warrants that number of shares of Common Stock that are issuable pursuant to the
Warrants. Except as otherwise described in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996 (as amended) or the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1997
(collectively, the "SEC Reports"), no unissued shares of Common Stock are
reserved for any purpose other than for issuance upon the exercise of the
Warrants. As of the date hereof, except as otherwise described in the SEC
Reports or as disclosed to Lender in connection with the Company's proposed
offering of Senior Subordinated
15
Notes, and except for stock options granted under the Company's employee stock
option plans subsequent to December 31, 1996 and warrants issued to the
underwriters in connection with the Company's 1994 initial public offering, the
Company has not issued or agreed to issue any stock purchase rights or
convertible securities (other than this Warrant), and there are no preemptive
rights in effect with respect to the issuance of any shares of Common Stock. All
the outstanding shares of Common Stock have been validly issued without
violation of any preemptive or similar rights, are fully paid and nonassessable
and have been issued in compliance with all federal and applicable state
securities laws.
(b) Authority. The Company has full corporate power and authority to
execute and deliver this Warrant, to issue the shares of Common Stock issuable
upon exercise of this Warrant, and to perform all of its obligations hereunder,
and the execution, delivery and performance hereof has been duly authorized by
all necessary corporate action on its part. This Warrant has been duly executed
on behalf of the Company and constitutes the legal, valid and binding obligation
of the Company enforceable in accordance with its terms.
(c) No Legal Bar. Neither the execution, delivery or performance of
this Warrant nor the issuance of the shares of Common Stock issuable upon
exercise of this Warrant will (a) conflict with or result in a violation of the
Certificate of Incorporation or By-Laws of the Company, (b) conflict with or
result in a violation of any law, statute, regulation, order or decree
applicable to the Company or any affiliate, (c) require any consent or
authorization or filing with, or other act by or in respect of any governmental
authority, or (d) result in a breach of, constitute a default under or
constitute an event creating rights of acceleration, termination or cancellation
under any mortgage, lease, contract, franchise, instrument or other agreement to
which the Company is a party or by which it is bound.
(d) Validity of Shares. When issued upon the exercise of this Warrant
as contemplated herein, the shares of Common Stock so issued will have been
validly issued and will be fully paid and nonassessable. On the date hereof, the
par value of the Common Stock is less than the Exercise Price per share of
Common Stock.
13. Representations and Warranties of the Warrantholder. The Warrantholder
hereby represents and warrants to and covenants with the Company that:
(a) Accredited Investor. The Warrantholder is an accredited investor
within the meaning of Rule 501(a) of Regulation D promulgated pursuant to the
Securities Act.
(b) Investment Intent. The Warrantholder acknowledges that the Warrant
has not been registered under the Securities Act. The Warrantholder is acquiring
the Warrant for investment purposes and not with a view to the public resale or
distribution thereof. The Warrantholder acknowledges that the Company will be
relying on the representations set forth in this Section 13 in establishing a
private placement exemption for the issuance of this Warrant.
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14. Miscellaneous Provisions.
(a) Governing Law. This Warrant shall be deemed to have been made in
the State of Arizona and the validity of this Warrant, the construction,
interpretation, and enforcement thereof, and the rights of the parties thereto
shall be determined under, governed by, and construed in accordance with the
internal laws of the State of Arizona, without regard to principles of conflicts
of law.
(b) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given when personally delivered to
the addressee or five (5) days after being mailed by certified mail, addressed
to the address below stated of the party to which notice is given, or to such
changed address as such party may have fixed by notice:
To the Company: MOBILE MINI, INC.
1834 West Third Street
Tempe, Arizona 85281
Attn: Lawrence Trachtenberg
To the Warrantholders ARIZONA LAND INCOME CORPORATION
Or holder of Warrant Shares: 2999 North 44th Street, Suite 100
Phoenix, Arizona 85018
Attn: Tom Hislop
provided, however, that any notice of change of address shall be effective only
upon receipt.
(c) Successors and Assigns. This Warrant shall be binding upon and
inure to the benefit of the Company, Lender, the Warrantholders and the holders
of Warrant Shares and the successors, assigns and transferees of the Company,
Lender, the Warrantholders and the holders of Warrant Shares.
(d) Attorneys' Fees. The Company agrees to pay, on demand, all
attorneys' fees (include attorneys' fees incurred pursuant to proceedings
arising under the Bankruptcy Code) and all other costs and expenses which may be
incurred by the Warrantholders and the holders of Warrant Shares in connection
with any amendment to this Warrant which may be requested by the Company and/or
in any action or proceeding in which the Company is not the prevailing party, if
such action or proceeding is in connection with, arising out of, or
consequential to the protection, assertion, or enforcement of rights under this
Warrant.
(e) Entire Agreement; Amendments and Waivers. This Warrant sets forth
the entire understanding of the parties with respect to the transactions
contemplated hereby. The
17
failure of any party to seek redress for the violation or to insist upon the
strict performance of any term of this Warrant shall not constitute a waiver of
such term and such party shall be entitled to enforce such term without regard
to such forbearance. This Warrant may be amended, the Company may take any
action herein prohibited or omit to take action herein required to be performed
by it, and any breach of or compliance with any covenant, agreement, warranty or
representation may be waived, only if the Company has obtained the written
consent or written waiver of the majority in interest of the Warrantholders, and
then such consent or waiver shall be effective only in the specific instance and
for the specific purpose for which given.
(f) Severability. If any term of this Warrant as applied to any person
or to any circumstance is prohibited, void, invalid or unenforceable in any
jurisdiction, such term shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or invalidity without in any way affecting any other
term of this Warrant or affecting the validity or enforceability of this Warrant
or of such provision in any other jurisdiction.
(g) Headings. The headings in this Warrant are inserted only for
convenience of reference and shall not be used in the construction of any of its
terms.
(h) Transferability. This Warrant may be assigned, transferred or sold
by Warrantholder only in compliance with the provisions of applicable securities
laws and with the consent of Company which shall not be unreasonably withheld;
provided, however, that no consent of the Company shall be required for any
assignment or transfer of this Warrant to any direct or indirect subsidiary or
parent of the Warrantholders or to any of their officers or employees, or to any
entity in which Warrantholder has a 10% or greater ownership interest.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officers effective as of the date first set forth above.
MOBILE MINI, INC.,
a Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
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