sv8
As
filed with the Securities and Exchange Commission on November 4, 2009
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)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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86-0748362
(I.R.S. Employer
Identification Number) |
7420 S. Kyrene Road, Suite 101
Tempe, Arizona 85283
(Address of Principal Executive Offices, Including Zip Code)
mobile mini, inc. 2006 Equity Incentive Plan
(Full Title of the Plan)
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Christopher J. Miner
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Copy to: |
Senior Vice President, General
Counsel and
Secretary
Mobile Mini, Inc.
7420 S. Kyrene Road, Suite 101
Tempe, Arizona 85283
(480) 894-6311
(Name, Address and Telephone Number,
including Area Code,
of Agent For
Service)
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Joseph P. Richardson, Esq.
Squire, Sanders & Dempsey L.L.P.
Two Renaissance Square
40 North Central Avenue
Phoenix, AZ 85004-4498
(602) 528-4000 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large Accelerated Filer þ |
Accelerated Filer o |
Non-accelerated Filer o (Do not check if a smaller reporting company) |
Smaller Reporting Company o |
CALCULATION OF REGISTRATION FEE
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Title of securities to |
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Proposed maximum |
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Proposed maximum |
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be registered |
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Amount to be |
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offering price per |
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aggregate offering |
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Amount of |
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(1)(2) |
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registered (1)(2) |
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share (3) |
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price (3) |
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registration fee |
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Common Stock, par
value $.01 per
share
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3,000,000 shares
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$14.16
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$42,480,000
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$2,370.38 |
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(1) |
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This registration covers 3,000,000 additional shares of common stock, par value $.01, of the
registrant, available for issuance under the registrants 2006 Equity Incentive Plan, as
amended (the Plan). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the Securities Act), this registration statement also covers an indeterminate number of
additional shares of common stock of the registrant that become issuable as a result of any
stock split, stock dividend, recapitalization or other similar transaction that results in an
increase in the number of outstanding shares of common
stock of the registrant. This registration statement shall cover such additional shares. In
addition, pursuant to Rule 416(c) under the Securities Act, this registration statement also
covers an indeterminate amount of interests to be offered or sold pursuant to the Plan. |
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(2) |
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Pursuant to General Instruction E to Form S-8, a filing fee is only being paid with respect
to the registration of additional securities for the Plan. A registration statement on Form
S-8 covering 1,200,000 shares (before stock splits and stock dividends) was previously filed
with respect to the Plan (registration no. 333-136595 filed August 14, 2006). |
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(3) |
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Estimated pursuant to Rule 457(h) under the Securities Act solely for the purpose of
calculating the registration fee. The proposed maximum offering price is based upon the
average of the high and low prices of the common stock as reported on the NASDAQ Global Select
Market on November 2, 2009. |
EXPLANATORY NOTE
INCORPORATION BY REFERENCE: Pursuant to General Instruction E to Form S-8, the contents of
registration statement no. 333-136595 are incorporated herein by this reference.
REGISTRATION OF ADDITIONAL SHARES: This registration statement on Form S-8 is filed by the
registrant to register 3,000,000 additional shares of common stock, par value $.01 per share, of
the registrant, which may be awarded under the registrants 2006 Equity Incentive Plan pursuant to
an amendment to such Plan authorized by the shareholders of the registrant on June 24, 2009.
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
In this registration statement, the terms we, our, us, Mobile Mini, the registrant
and the Corporation refer to Mobile Mini, Inc., unless otherwise specified. The SEC allows us to
incorporate by reference the information we file with the SEC, which means that we can disclose
important information to you by referring you to those documents. The information that we
incorporate by reference is considered to be part of this registration statement. Information that
we file with the SEC in the future and incorporate by reference in this registration statement
automatically updates and supersedes previously filed information as applicable.
We incorporate by reference into this registration statement the following documents filed by
us with the SEC, other than any portion of any such documents that are not deemed filed under the
Securities Exchange Act of 1934 (the Exchange Act) in accordance with the Exchange Act and
applicable SEC rules:
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Annual Report on Form 10-K for the fiscal year ended December 31, 2008. |
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Quarterly Report on Form 10-Q for the fiscal quarters ended March 31, 2009 and June 30,
2009. |
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The information specifically incorporated by reference into our Annual Report on Form
10-K for the fiscal year ended December 31, 2008 from our definitive proxy statement on
Schedule 14A filed with the SEC on April 30, 2009. |
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The description of our common stock contained in our prospectus dated May 6, 1999, which
comprised part of our registration statement on Form S-2 (File No. 333-76093); and |
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The description contained in Form 8-K filed on December 13, 1999 of our Series C Junior
Participating Preferred Stock issuable in connection with our stockholder rights plan. |
We also incorporate by reference into this registration statement all documents (other than
any portions of any such documents that are not deemed filed under the Exchange Act in accordance
with the Exchange Act and applicable SEC rules) filed by us under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of the initial filing of this registration statement and
before the filing of a post-effective amendment to this registration statement which indicates all
securities offered hereunder have been sold or that deregisters all securities then remaining
unsold.
You may request a copy of these filings, which we shall deliver to you, together with all
exhibits thereto, at no cost, by writing or telephoning us as follows:
Mobile Mini, Inc.
Attention: Corporate Secretary
7240 S. Kyrene Road
Suite 101
Tempe, Arizona 85283
(480) 894-6311
Any statement contained in a document that is incorporated by reference will be modified or
superseded for all purposes to the extent that a statement contained in this registration
statement, or in any other document that is subsequently filed with the SEC and incorporated by
reference, modifies or is contrary to that previous statement.
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Any statement so modified or superseded will not be deemed a part of this registration
statement, except as so modified or superseded. Since information that we later file with the SEC
will update and supersede previously incorporated information, you should look at all of the SEC
filings that we incorporate by reference to determine if any of the statements in this registration
statement or in any documents previously incorporated by reference have been modified or
superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the state of Delaware (DGCL), as amended,
provides that under certain circumstances, a Delaware corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or completed action,
suits or proceedings, whether civil, criminal, administrative or investigative, other than an
action by or in the right of the corporation, by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation or is or was serving at the request of the
corporation in such capacity in another corporation or enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, has on reasonable cause
to believe such persons conduct was unlawful.
The DGCL authorizes a Delaware corporation to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against him and incurred by him in any
such capacity, arising out of his status as such, whether or not the corporation would otherwise
have the power to indemnify him under Section 145.
Mobile Minis Amended and Restated Certificate of Incorporation and Bylaws provide for the
indemnification of its directors to the fullest extent permitted under Delaware law. Pursuant to
employment agreements entered into by Mobile Mini with certain of its executive officers, Mobile
Mini must indemnify such officers and employees in the same manner and to the same extent that it
is required to indemnify its directors under its Bylaws. Mobile Minis Certificate of Incorporation
limits the personal liability of a director to the corporation or its stockholders to damages for
breach of the directors fiduciary duty.
The Registrant has entered into indemnification agreements with each of its directors.
Generally, the indemnification agreements attempt to provide the maximum protection permitted by
Delaware law as it may be amended from time to time. Moreover, the indemnification agreements
provide for certain additional indemnification. Under such additional indemnification provisions,
however, a director will not receive indemnification for judgments, settlements or expenses if he
or she is found liable to the Registrant (except to the extent the court determines he or she is
fairly and reasonably entitled to indemnity for expenses), for settlements not approved by the
Registrant or for settlements and expenses if the settlement is not approved by the court. The
indemnification agreements provide for the Registrant to advance to the individual any and all
reasonable expenses (including legal fees and expenses) incurred in investigating or defending any
such action, suit or proceeding. In order to receive an advance of expenses, the individual must
submit to the Registrant copies of invoices presented to him or her for such expenses. Also, the
individual must repay such advances upon a final judicial decision that he or she is not entitled
to indemnification.
Mobile Mini has purchased insurance on behalf of its directors and officers against certain
liabilities that may be asserted against, or incurred by, such persons in their capacities as
directors or officers of Mobile Mini, or that may arise out of their status as directors or
officers of the registrants, including liabilities under the federal and
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state securities laws. Mobile Mini has entered into indemnification agreements to indemnify its
directors to the extent permitted under Delaware law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit No. |
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Description |
4.1.1
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Amended and Restated Certificate of Incorporation of Mobile Mini, Inc.
(Incorporated by reference to Exhibit 3.1 of the Registrants Report on
Form 10-K for the fiscal year ended December 31, 1997) |
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4.1.2
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Certificate of Amendment, dated July 20, 2000, to the Amended and Restated
Certificate of Incorporation of the Registrant (Incorporated by reference
to Exhibit 3.1a of the Registrants Report on Form 10-Q for the quarter
ended June 30, 2000) |
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4.1.3
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Certificate of Designation, Preferences and Rights of Series C Junior
Participating Preferred Stock of Mobile Mini, Inc., dated December 17, 1999
(Incorporated by reference to the Registrants Report on Form 8-K dated
December 13, 1999) |
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4.1.4
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Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of Mobile Mini, Inc., dated June 26, 2008 (Incorporated by
reference to the Registrants Report on Form 8-K dated July 1, 2008) |
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4.1.5
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Certificate of Designation of Mobile Mini, Inc. Series A Convertible
Redeemable Participating Preferred Stock, dated June 27, 2008 (Incorporated
by reference to the Registrants Report on Form 8-K dated July 1, 2008) |
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4.2
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Amended and Restated Bylaws (Incorporated by reference to the Registrants
Report on Form 10-K for the fiscal year ended December 31, 2007) |
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4.3
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Mobile Mini, Inc. 2006 Equity Incentive Plan, incorporated by reference to
Exhibit A to the Corporations Definitive Proxy Statement on Schedule 14A
for the Annual Meeting of Shareholders held June 24, 2009, filed with the
SEC on April 30, 2009 |
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5.1*
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Opinion of Squire, Sanders & Dempsey L.L.P. regarding legality of shares |
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23.1
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Consent of Squire, Sanders & Dempsey L.L.P. (included in Exhibit 5.1 hereto) |
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23.2*
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Consent of Ernest & Young LLP |
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24.1*
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Powers of attorney (contained on Signature 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:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities
offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee table in the effective
registration statement;
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(iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if
the registration statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference 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 registrants annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plans annual report pursuant to 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 therein, 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.
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SIGNATURES
The Registrant. 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 November
4, 2009.
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Mobile Mini, Inc.
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By: |
/s/ Mark E. Funk
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Mark. E. Funk |
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Executive Vice President and Chief
Financial Officer |
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints Steven G. Bunger, Mark Funk, and Christopher J. Miner, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments to this
registration statement, and to file the same, with all exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises, and fully and to
all intents and purposes as he might or could do in person hereby ratifying and confirming all that
said attorney-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been
signed by the following persons in the capacities and on the date indicated.
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Signature |
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Title |
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Date |
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/s/ Steven G. Bunger
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President, Chief
Executive Officer and Director |
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November 4, 2009 |
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(Principal
Executive Officer)
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/s/ Mark Funk
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Executive Vice
President, Treasurer and
Chief Financial Officer |
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November 4, 2009 |
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(Principal
Financial
Officer)
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/s/ Deborah K. Keeley
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Senior Vice President
and Chief Accounting Officer |
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November 4, 2009 |
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(Principal
Accounting Officer)
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/s/ Jeffrey S. Goble |
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Director
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November 4, 2009 |
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Jeffrey S. Goble
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/s/ Stephen A. McConnell |
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Director
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November 4, 2009 |
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/s/ Michael L. Watts |
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Director
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November 4, 2009 |
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/s/ Frederick G. McNamee |
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Director
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November 4, 2009 |
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/s/ Sanjay Swani |
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Director
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November 4, 2009 |
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Signature |
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Title |
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Date |
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/s/ Michael E. Donovan |
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Director
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November 4, 2009 |
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/s/ Lawrence Trachtenberg |
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Director
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November 4, 2009 |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
4.1.1
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Amended and Restated Certificate of Incorporation of Mobile Mini, Inc.
(Incorporated by reference to Exhibit 3.1 of the Registrants Report on
Form 10-K for the fiscal year ended December 31, 1997) |
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4.1.2
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Certificate of Amendment, dated July 20, 2000, to the Amended and Restated
Certificate of Incorporation of the Registrant (Incorporated by reference
to Exhibit 3.1a of the Registrants Report on Form 10-Q for the quarter
ended June 30, 2000) |
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4.1.3
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Certificate of Designation, Preferences and Rights of Series C Junior
Participating Preferred Stock of Mobile Mini, Inc., dated December 17, 1999
(Incorporated by reference to the Registrants Report on Form 8-K dated
December 13, 1999) |
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4.1.4
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Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of Mobile Mini, Inc., dated June 26, 2008 (Incorporated by
reference to the Registrants Report on Form 8-K dated July 1, 2008) |
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4.1.5
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Certificate of Designation of Mobile Mini, Inc. Series A Convertible
Redeemable Participating Preferred Stock, dated June 27, 2008 (Incorporated
by reference to the Registrants Report on Form 8-K dated July 1, 2008) |
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4.2
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Amended and Restated Bylaws (Incorporated by reference to the Registrants
Report on Form 10-K for the fiscal year ended December 31, 2007) |
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4.3
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Mobile Mini, Inc. 2006 Equity Incentive Plan, incorporated by reference to
Exhibit A to the Corporations Definitive Proxy Statement on Schedule 14A
for the Annual Meeting of Shareholders held June 24, 2009, filed with the
SEC on April 30, 2009 |
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5.1*
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Opinion of Squire, Sanders & Dempsey L.L.P. regarding legality of shares |
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23.1
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Consent of Squire, Sanders & Dempsey L.L.P. (included in Exhibit 5.1 hereto) |
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23.2*
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Consent of Ernest & Young LLP |
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24.1*
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Powers of attorney (contained on Signature Page) |