Exhibit 10.38


 


DEAN JERNIGAN


AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT


 


THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”)
is dated as of December 23, 2008 by and between U-STORE-IT TRUST, a Maryland
real estate investment trust (the “Company”), and Dean Jernigan (the “Executive”).


 


WHEREAS, the Company and the Executive entered into an Employment
Agreement, dated April 24, 2006 which was replaced by the Amended and Restated Employment
Agreement dated as of April 20, 2007 (the “Original Employment Agreement”),
pursuant to which the Executive was employed by the Company as President
and Chief Executive Officer; and


 


WHEREAS, the Company and the Executive desire to enter into this
Agreement which supersedes and replaces in its entirety the Original Employment
Agreement; and


 


WHEREAS, the Company desires to employ the Executive to devote full
time to the business of the Company as the Chief Executive Officer of the
Company; and


 


WHEREAS, the Executive desires to be employed by the Company on the
terms and subject to the conditions hereinafter stated.


 


Accordingly, the parties hereto agree as follows:


 


1. Term. The Company hereby continues the employment of
the Executive, and the Executive hereby accepts such continuation of
employment, for an initial term ending on April 24, 2011 unless sooner
terminated in accordance with the provisions of Section 4 or Section 5
(the period during which the Executive is employed hereunder being hereinafter
referred to as the “Term”). The Term shall be subject to automatic
one-year renewals unless either party hereto notifies the other, in accordance
with Section 7.4, of non-renewal at least ninety (90) days
prior to the end of any such Term. Notwithstanding the employment of the
Executive by the Company, the Company shall be entitled to pay the Executive
from the payroll of any subsidiary of the Company.


 


2. Duties. The Executive, in his capacity as Chief
Executive Officer, shall faithfully perform for the Company the duties of said
office and shall perform such other duties of an executive, managerial or
administrative nature as shall be specified and designated from time to time by
the Board of Trustees of the Company (the “Board”) (including the
performance of services for, and serving on the Board of Directors or a
comparable governing body of, any subsidiary or affiliate of the Company
without any additional compensation). The Executive shall devote substantially
all of the Executive’s business time and effort to the performance of the
Executive’s duties hereunder, provided that in no event shall this sentence
prohibit the Executive from performing personal and charitable activities and
any other activities approved by the Board, so long as such activities do not
materially and adversely interfere with the Executive’s duties for the Company.
The Board may delegate its authority to take any action under this Agreement to
the Compensation Committee of the Board (the “Compensation Committee”).


 

















 


3. Compensation.


 


3.1 Salary. The Company shall pay the
Executive during the Term a base salary at the rate of $610,000 per annum (the
“Annual Salary”), in accordance with the customary payroll practices of
the Company applicable to senior executives generally. The Annual Salary may be
increased annually by an amount as may be approved by the Board or the
Compensation Committee, and, upon such increase, the increased amount shall
thereafter be deemed to be the Annual Salary for purposes of this Agreement.


 


3.2 Bonus. During the Term, in
addition to the Annual Salary, the Executive will be eligible to participate in
(a) any formal annual bonus plan established by the Compensation Committee for
all executive officers in its sole and absolute discretion (the “Annual
Bonus Plan,” and amounts paid thereunder are referred to as an “Annual
Bonus”) and (b) any formal long-term bonus or incentive plans established
by the Compensation Committee for all executive officers in its sole and
absolute discretion (the “Long-Term Bonus Plans,” and amounts paid
thereunder are referred to as “Long-Term Bonus”).  The Annual Bonus Plans and the Long-Term
Bonus Plans are referred to as the “Bonus Plans.” The Executive may be
awarded such restricted shares, share options and other equity-based awards
under the Company’s equity compensation plans (“Equity Awards”) as the
Compensation Committee determines to be appropriate in its sole discretion.


 


3.3 Benefits — In General. The
Executive shall be permitted during the Term to participate in any group life,
hospitalization or disability insurance plans, health programs, pension and
profit sharing plans and similar benefits that may be available to similarly
situated senior executives of the Company generally, on the same terms as may
be applicable to such other executives, in each case to the extent that the
Executive is eligible under the terms of such plans or programs. During the
Term, the Company shall maintain customary liability insurance for trustees and
officers and list the Executive as a covered officer.


 


3.4 Vacation. During the Term, the Executive
shall be entitled to vacation of four (4) weeks per year.


 


3.5 Automobile. During the Term, the
Company will provide the Executive an allowance for the use of an automobile
(including the payment of vehicle insurance) in accordance with the Company’s
policy in effect from time to time. At the option of the Company, in lieu of
providing such allowance, the Company will provide the Executive with an
automobile of suitable standard to the Executive’s position.


 


3.6 Expenses. The Company shall pay or
reimburse the Executive for all ordinary and reasonable out-of-pocket business
expenses actually incurred (and, in the case of reimbursement, paid) by the
Executive during the Term in the performance of the Executive’s services under
this Agreement, pursuant to the Company’s standard expense reimbursement policy
as in effect from time to time, so long as the Executive provides


 


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proper documentation establishing the amount, date and business purpose
of the expenses.


 


4. Termination upon Death or Disability. If the Executive dies
during the Term, the obligations of the Company to or with respect to the
Executive shall terminate in their entirety except as otherwise provided under
this Section 4. If the Executive becomes eligible for disability
benefits under the Company’s long-term disability plans and arrangements (or,
if none apply, would have been so eligible under the most recent plan or
arrangement), the Company shall have the right, to the extent permitted by law,
to terminate the employment of the Executive upon notice in writing to the
Executive and such termination in and of itself shall not be, nor shall it be
deemed to be, a breach of this Agreement; provided, that, the Company will have
no right to terminate the Executive’s employment if, in the opinion of a
qualified physician reasonably acceptable to the Company, it is reasonably
certain that the Executive will be able to resume the Executive’s duties on a
regular full-time basis within 90 days of the date the Executive receives
notice of such termination.


 


Upon death or other termination of employment by virtue of disability
(i) the Executive (or the Executive’s estate or beneficiaries in the case
of the death of the Executive) shall have no right to receive any compensation
or benefit hereunder on and after the Effective Date of the Termination other
than Annual Salary earned and accrued under this Agreement prior to the
Effective Date of the Termination, any bonus for the prior year not yet paid,
and other benefits, including payment for accrued but unused vacation, earned
and accrued under this Agreement prior to the Effective Date of the Termination
(and reimbursement under this Agreement for expenses incurred but not paid
prior to the Effective Date of the Termination) and an amount equal to the
product of (x) the Executive’s target annual bonus for the fiscal year of
the Executive’s death or disability and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the Effective
Date of the Termination, and the denominator of which is 365, such amount to be
paid to the Executive (or the Executive’s estate or beneficiaries in the case
of the death of the Executive) within 30 days of the Effective Date of Termination;
(ii) all Equity Awards held by the Executive shall become fully vested and
exercisable; and (iii) this Agreement shall otherwise terminate upon the
Effective Date of the Termination and there shall be no further rights with
respect to the Executive hereunder (except as provided in Section 7.13).
For purposes of this Section 4, the “Effective Date of the
Termination” shall mean the date of death or the date on which a notice of
termination by virtue of disability is given or any later date (within thirty
(30) days after the giving of such notice) set forth in such notice of
termination.


 


For the avoidance of doubt, the Executive acknowledges and agrees that
the payments set forth in this Section 4 constitute liquidated
damages for termination of his employment during the Term upon death or by
virtue of disability.


 


5. Other Terminations of Employment.


 


5.1 Termination for Cause.  
For purposes of this Agreement, “Cause” shall mean:


 


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(a) the Executive’s conviction for (or
pleading nolo contendere to) any
felony or a misdemeanor involving moral turpitude;


 


(b) the Executive’s commission of an act of
fraud, theft or dishonesty related to the business of the Company or its
affiliates or the performance of the Executive’s duties hereunder;


 


(c) the willful and continuing failure or
habitual neglect by the Executive to perform the Executive’s duties hereunder;


 


(d) any material violation by the Executive
of the covenants contained in Section 6 or that certain Non-Competition Agreement dated as of April 24, 2006
between the Executive and the Company (the “Non-Competition Agreement”);
or


 


(e) the Executive’s willful and continuing
material breach of this Agreement.


 


For purposes of this Section 5.1,
no act, or failure to act, by Executive shall be considered “willful”
unless committed in bad faith and without a reasonable belief that the act or
omission was in the best interests of the Company or its subsidiaries.
Notwithstanding the foregoing, if there exists (without regard to this
sentence) an event or condition that constitutes Cause under clause (c),
(d) or (e) above, the Executive shall have 30 days from the date
written notice is given by the Company of such event or condition to cure such
event or condition and, if the Executive does so, such event or condition shall
not constitute Cause hereunder.


 


5.2 Termination for Good Reason.  For purposes of this Agreement, “Good
Reason” shall mean, unless otherwise consented to by the Executive:


 


 (a)
the material reduction of the Executive’s authority, duties and
responsibilities, or the assignment to the Executive of duties materially and
adversely inconsistent with the Executive’s position or positions with the
Company and its subsidiaries;


 


(b) a material reduction in Annual Salary of
the Executive;


 


(c) the failure by the Company to obtain an
agreement from any successor to the business of the Company to assume and agree
to perform this Agreement;


 


(d) a change in control (for purposes of this
Section, “Change in Control” shall mean:


 


(i) the dissolution or liquidation of
the Company,


 


(ii) the merger, consolidation, or
reorganization of the Company with one or more other entities in which the
Company is not the surviving entity or immediately following which the persons
or entities who were beneficial owners (as determined pursuant to
Rule 13d-3 under the


 


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Securities Exchange Act of 1934, as amended (the “Exchange Act”))
of voting securities of the Company immediately prior thereto cease to
beneficially own more than 50% of the voting securities of the surviving entity
immediately thereafter,


 


(iii) a sale of all or substantially all
of the assets of the Company to another person or entity other than an
affiliate of the Company,


 


(iv) any transaction (including without
limitation a merger or reorganization in which the Company is the surviving
entity) that results in any person or entity or “group” (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act) (other than persons who are shareholders or affiliates immediately prior
to the transaction) owning thirty percent (30%) or more of the combined voting
power of all classes of shares of the Company, or


 


(v) individuals who, as of the date
hereof, constitute the Board (the “Incumbent Board”) cease for any
reason to constitute at least a majority of the Board; provided, however, that
any individual becoming a trustee subsequent to the date hereof whose election,
or nomination for election by the Company’s shareholders, was approved by a
vote of at least a majority of the trustees then comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of the Company
in which such person is named as a nominee for trustee, without written
objection to such nomination) shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual
or threatened election contest with respect to the election or removal of
trustees or other actual or threatened solicitation of proxies or contests by
or on behalf of a person other than the Board;


 


(e) a requirement by the Company that the
Executive’s work location be moved more than fifty (50) miles from the
Company’s office where the Executive works effective as of the date of this
Agreement, unless the relocation results in the work location being closer to
Executive’s residence; or


 


(f) the Company’s material and willful breach
of this Agreement.


 


Notwithstanding the foregoing, if there
exists (without regard to this sentence) an event or condition that constitutes
Good Reason under clause (a), (b), (e) or (f) above, the Company
shall have 30 days from the date on which the Executive gives the written
notice thereof to cure such event or condition and, if the Company does so,
such event or condition shall not constitute Good Reason hereunder. Further, an
event or condition shall cease to constitute Good Reason one (1) year after the
event or condition first occurs.


 


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5.3 Effect of Termination for Cause.
 The Company may terminate the Executive’s employment hereunder for Cause
and such termination in and of itself shall not be, nor shall it be deemed to
be, a breach of this Agreement. If the Company terminates the Executive for
Cause, (i) the Executive shall have no right to receive any compensation
or benefit hereunder on and after the Effective Date of the Termination other
than Annual Salary and other benefits, including payment for unused vacation
earned and accrued under this Agreement prior to the Effective Date of the
Termination and reimbursement under this Agreement for expenses incurred but
not paid prior to the Effective Date of the Termination, but excluding any
bonuses the Executive would have been entitled to under the Bonus Plans; and
(ii) this Agreement shall otherwise terminate upon the Effective Date of
the Termination and the Executive shall have no further rights hereunder
(except as provided in Section 7.13). For purposes of this Section 5.3,
the “Effective Date of the Termination” shall mean the date on which a
notice of termination is given or any later date (within thirty (30) days
after the giving of such notice) set forth in such notice of termination.


 


5.4 Effect of Termination Without Good
Reason.  The Executive may terminate his employment without Good
Reason. If the Executive terminates the Executive’s employment with the Company
without Good Reason: (i) the Executive shall have no right to receive any
compensation or benefit hereunder on and after the Effective Date of the
Termination other than Annual Salary and other benefits, including payment for
unused vacation earned and accrued under this Agreement prior to the Effective
Date of the Termination and reimbursement under this Agreement for expenses
incurred but not paid prior to the Effective Date of the Termination, but
excluding any bonuses the Executive would have been entitled to under the Bonus
Plans; and (ii) this Agreement shall otherwise terminate upon the
Effective Date of the Termination and the Executive shall have no further
rights hereunder (except as provided in Section 7.13). For purposes
of this Section 5.4, the “Effective Date of the Termination”
shall mean the date on which a notice of termination is given or any later date
(within thirty (30) days after the giving of such notice) set forth in
such notice of termination.


 


5.5 Effect of Non-Renewal. In the
event the Company elects not to renew this Agreement as contemplated in Section 1
above and as a result the Executive has a Separation from Service, the
Executive shall receive a cash payment equal to one (1) times the sum of:
(i) the Executive’s Annual Salary in effect on the day of expiration of
the Term and (ii) the average of the sum of the two previous Annual
Bonuses and Long-Term Bonuses received by the Executive as provided for in Section
3.2, or, in the event the Executive has received only one Annual Bonus and one
Long-Term Bonus pursuant to Section 3.2 at the time of such Separation
from Service, an amount equal to the sum of such Annual Bonus and Long-Term
Bonus, or, in the event the Executive has not received any Annual Bonus or
Long-Term Bonus pursuant to Section 3.2 at the time of such Separation
from Service, an amount equal to the sum of the Annual Bonus and Long-Term
Bonus the Executive would have received under Section 3.2 if the
Executive would have remained employed through the period required to be entitled
to receive the Annual Bonus and Long-Term Bonus and satisfied all target
performance objectives, payable no later than 30 days after such Separation
from Service (or, if later, as soon as


 


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practicable, but in no event after the earlier of (x) 30 days after the
amount is reasonably capable of being known and (y) the date that is 2 1/2
months after the end of the calendar year in which the Separation from Service
occurs).


 


5.6 Termination Without Cause; Termination
for Good Reason. The Company may terminate the Executive’s employment at
any time without Cause, for any reason or no reason and the Executive may
terminate the Executive’s employment with the Company for Good Reason. If the
Company or the Executive terminates the Executive’s employment and such
termination is not described in Section 4 or Section 5.1
through Section 5.5, (i) the Executive shall receive the
Executive’s Annual Salary earned and accrued under this Agreement prior to the
Effective Date of the Termination, any bonus for the prior year which has been
awarded but not yet paid, and other benefits, including payment for accrued but
unused vacation, earned and accrued under this Agreement prior to the Effective
Date of the Termination (and reimbursement under this Agreement for expenses
incurred but not paid prior to the Effective Date of the Termination) and an
amount equal to the product of (x) the Executive’s target annual bonus for
the fiscal year of the Executive’s termination of employment and (y) a
fraction, the numerator of which is the number of days in the current fiscal
year through the Effective Date of the Termination, and the denominator of
which is 365, such amount to be paid to the Executive within 30 days of the Effective
Date of Termination; (ii) the Executive shall receive a cash payment equal
to the Severance Payment payable within 30 days of the Effective Date of
the Termination; (iii) for 18 months after the Effective Date of the
Termination, the Company shall continue medical, prescription and dental
benefits to the Executive and/or the Executive’s family at least equal to those
which would have been provided to them in accordance with the welfare benefit
plans, practices, policies and programs provided by the Company to the extent
applicable generally to other peer employees of the Company and its affiliated
companies, as if the Executive’s employment had not been terminated; provided,
however, that if the Executive becomes reemployed with another employer
and is eligible to receive medical, prescription and dental benefits under
another employer provided plan, the medical, prescription and dental benefits
described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility; (iv) all Equity Awards held
by the Executive shall become fully vested and exercisable (notwithstanding
anything to the contrary contained in any plan); and (v) this Agreement
shall otherwise terminate upon the Effective Date of the Termination and the
Executive shall have no further rights hereunder (except as provided in Section
7.13).


 


The “Severance Payment” means three
(3) times the sum of: (i) the Executive’s Annual Salary (as in effect on
the effective date of such termination) and (ii) the average of the sum of
the two previous Annual Bonuses and Long-Term Bonuses received by the Executive
pursuant to Section 3.2, or, in the event the Executive has received
only one Annual Bonus and one Long-Term Bonus pursuant to Section 3.2 at
the time of such termination, an amount equal to the sum of such Annual Bonus
and Long-Term Bonus, or, in the event the Executive has not received any Annual
Bonus or Long-Term Bonus pursuant to Section 3.2 at the time of such
termination, an amount equal to the sum of the Annual Bonus and Long-Term Bonus
the Executive would have received under Section 3.2


 


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if the Executive would have remained employed through the period
required to be entitled to receive the Annual Bonus and Long-Term Bonus and
satisfied all target performance objectives. 
For purposes of this Section 5.6, the “Effective Date of
the Termination” shall mean the date on which a notice of termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such notice of termination, or in the case of termination
of employment by the Executive for Good Reason, the date of termination
specified in such Executive’s notice of termination.


 


5.7 Severance and Release. In the event that Executive’s
employment is terminated and Executive receives a Severance Payment or other
post-termination benefits, the payment of such benefits is expressly
conditioned upon and shall not be made, provided or otherwise available unless
and until, Executive has executed and delivered to the Company a Severance and
General Release Agreement in substantially the form attached hereto as Exhibit
A. The Company shall have no post-termination obligations under this Agreement
if the executed release is not received by the Company within 60 days after the
Effective Date of Termination.


 


5.8 Nature of Payments. For the avoidance of doubt, the
Executive acknowledges and agrees that the payments set forth in this Section 5
constitute liquidated damages for termination of his employment during the
Term.


 


5.9 References in
Sections 5.5 and 5.6 to Annual Bonuses and Long-Term Bonuses (and the singular
thereof) mean any such bonuses received under this agreement or the Original
Agreement.


 


6. Confidential and Proprietary Information.


 


6.1 Confidential Information. The Executive shall keep secret
and retain in strictest confidence, and shall not use for his personal benefit
or the benefit of others or directly or indirectly disclose, except as may be
required or appropriate in connection with his carrying out his duties under
this Agreement, all confidential information, knowledge or data relating to the
Company or any of its affiliates, or to the Company’s or any such affiliate’s
respective businesses and investments (including confidential information of
others that has come into the possession of the Company or any such affiliate),
learned by the Executive heretofore or hereafter directly or indirectly from
the Company or any of its affiliates and which is not generally available
lawfully and without breach of confidential or other fiduciary obligation to
the general public without restriction (the “Confidential Company
Information”), except with the Company’s express written consent or as may
otherwise be required by law or any legal process.


 


6.2 Return of Documents; Rights to Products. All memoranda,
notes, lists, records, property and any other tangible product and documents
(and all copies thereof) made, produced or compiled by the Executive or made
available to the Executive concerning the businesses and investments of the
Company and its affiliates shall be the Company’s property and shall be
delivered to the Company at any time on request. The Executive shall assign to
the Company all rights to trade secrets and other products relating to the
Company’s business developed by him alone or in conjunction with others at any
time while employed by the Company.


 


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6.3 Rights and Remedies upon Breach. The Executive acknowledges
and agrees that any breach by him of any of the provisions of this Section 6
(the “Restrictive Covenants”) would result in irreparable injury and
damage for which money damages would not provide an adequate remedy. Therefore,
if the Executive breaches any of the Restrictive Covenants, the Company and its
affiliates shall have the right and remedy to have the Restrictive Covenants
specifically enforced (without posting bond and without the need to prove
damages) by any court having equity jurisdiction, including, without
limitation, the right to an entry against the Executive of restraining orders
and injunctions (preliminary, mandatory, temporary and permanent) against
violations, threatened or actual, and whether or not then continuing, of such
covenants. This right and remedy shall be in addition to, and not in lieu of,
any other rights and remedies available to the Company and its affiliates under
law or in equity (including, without limitation, the recovery of damages).


 


7. Other Provisions.


 


7.1 Severability. The Executive acknowledges and agrees that the
Executive has had an opportunity to seek advice of counsel in connection with
this Agreement. If it is determined that any of the provisions of this
Agreement, or any part thereof, is invalid or unenforceable, the remainder of
the provisions of this Agreement shall not thereby be affected and shall be
given full affect, without regard to the invalid portions.


 


7.2 Enforceability; Jurisdictions. The Company and the Executive
intend to and hereby confer jurisdiction to enforce the Restrictive Covenants
upon the courts of the State of Ohio. If any court holds the Restrictive
Covenants wholly unenforceable by reason of breadth of scope or otherwise it is
the intention of the Company and the Executive that such determination not bar
or in any way affect the Company’s right, or the right of any of its
affiliates, to the relief provided above in the courts of any other
jurisdiction within the geographical scope of such Restrictive Covenants, as to
breaches of such Restrictive Covenants in such other respective jurisdictions,
such Restrictive Covenants as they relate to each jurisdiction’s being, for
this purpose, severable, diverse and independent covenants, subject, where
appropriate, to the doctrine of res judicata.


 


7.3 Attorneys’ Fees. In the event of any legal proceeding
relating to this Agreement or any term or provision thereof, the losing party
shall be responsible to pay or reimburse the prevailing party for all
reasonable attorneys’ fees incurred by the prevailing party in connection with
such proceeding within the 10 year period commencing on the applicable
Effective Date of Termination; provided, however, the Executive shall not be
required to pay or reimburse the Company unless the claim or defense asserted
by the Executive was unreasonable.  The
amount of reimbursement available to the Executive under this Section 7.3
during a taxable year will not affect the expenses eligible for reimbursement
in any other taxable year. 
Reimbursements under this Section 7.3 shall be paid to the
Executive on or before the last day of the Executive’s taxable year following
the Executive’s taxable year in which the expense is incurred.


 


7.4 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered
(i) two business days after it is sent by registered or certified mail,
return receipt requested, postage prepaid, (ii) when received if it is
sent by facsimile


 


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communication during normal business hours on a business day or one
business day after it is sent by facsimile and received if sent other than
during business hours on a business day, (iii) one business day after it is
sent via a reputable overnight courier service, charges prepaid, or
(iv) when received if it is delivered by hand, in each case to the intended
recipient as set forth below:


 


	
  If to the Company, to:

  	
  U-Store-It Trust

  
	
   

  	
  460 E. Swedesford Road, Suite 3000

  
	
   

  	
  Wayne, PA 19087

  
	
   

  	
  Attn: Chief Executive Officer

  
	
   

  	
  Facsimile: (440) 234-8776

  
	
   

  	
   

  
	
  with a copy to:

  	
  Bass, Berry & Sims PLC

  
	
   

  	
  100 Peabody Place, Suite 900

  
	
   

  	
  Memphis, TN 38103

  
	
   

  	
  Attn: John A. Good

  
	
   

  	
  Facsimile: (901) 543-5999

  



 


If to the Executive, to the address set forth in the records of the
Company.


 


Any such person may by notice given in accordance with this Section to
the other parties hereto designate another address or person for receipt by
such person of notices hereunder.


 


7.5 Entire Agreement. This Agreement, together with the exhibits
hereto and the Non-Competition Agreement, contains the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with the Company or its subsidiaries (or any
predecessor of either).


 


7.6 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver thereof,
nor shall any waiver on the part of any party of any such right, power or
privilege nor any single or partial exercise of any such right, power or
privilege, preclude any other or further exercise thereof or the exercise of
any other such right, power or privilege.


 


7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.


 


7.8 Assignment. This Agreement, and the Executive’s rights and
obligations hereunder, may not be assigned by the Executive; any purported
assignment by the Executive in violation hereof shall be null and void. In the
event of any Change in Control, the Company may assign this Agreement and its
rights hereunder.


 


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7.9 Withholding. The Company shall be entitled to withhold from
any payments or deemed payments any amount of withholding required by law. No
other taxes, fees, impositions, duties or other charges or offsets of any kind
shall be deducted or withheld from amounts payable hereunder, unless otherwise
required by law.


 


7.10 No Duty to Mitigate. The Executive shall not be required to
mitigate damages or the amount of any payment provided for under this Agreement
by seeking other employment or otherwise, nor will any payments hereunder be
subject to offset in the event the Executive does mitigate.


 


7.11 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors, permitted
assigns, heirs, executors and legal representatives.


 


7.12 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one
and the same instrument. Each counterpart may consist of two copies hereof each
signed by one of the parties hereto.


 


7.13 Survival. Anything contained in this Agreement to the
contrary notwithstanding, the provisions of Section 6 and Section
7 (to the extent necessary to effectuate the survival of Section 6
and Section 7) shall survive termination of this Agreement and any
termination of the Executive’s employment hereunder.


 


7.14 Existing Agreements. Executive represents to the Company
that the Executive is not subject or a party to any employment or consulting
agreement, non-competition covenant or other agreement, covenant or
understanding which might prohibit the Executive from executing this Agreement
or limit the Executive’s ability to fulfill the Executive’s responsibilities
hereunder.


 


7.15 Headings. The headings in this Agreement are for reference
only and shall not affect the interpretation of this Agreement.


 


7.16 Parachute Provisions. If any amount payable to or other
benefit receivable by the Executive pursuant to this Agreement is deemed to
constitute a Parachute Payment (as defined below), alone or when added to any
other amount payable or paid to or other benefit receivable or received by the
Executive which is deemed to constitute a Parachute Payment (whether or not
under an existing plan, arrangement or other agreement), and would result in
the imposition on the Executive of an excise tax under Section 4999 of the
Internal Revenue Code of 1986, as amended, then, in addition to any other
benefits to which the Executive is entitled under this Agreement, the Executive
shall be paid by the Company an amount in cash equal to the sum of the excise
taxes payable by the Executive by reason of receiving Parachute Payments plus
the amount necessary to put the Executive in the same after-tax position
(taking into account any and all applicable federal, state and local excise,
income or other taxes at the highest applicable rates on such Parachute
Payments and on any payments under this Section 7.16) as if no
excise taxes had been imposed with respect to Parachute Payments. The amount of
any payment under this


 


11

















 


Section 7.16 shall be computed by a
certified public accounting firm mutually and reasonably acceptable to the
Executive and the Company, the computation expenses of which shall be paid by
the Company.  Any payment required
to be made to the Executive pursuant to this section will be paid at the
time the excise tax is required to be withheld by the Company and remitted
to the Internal Revenue Service or, if the Company is not required to withhold
such tax, on the 5th business day preceding the date it is required to be
remitted by the Employee. “Parachute Payment” shall mean any payment deemed to constitute a
“parachute payment” as defined in Section 280G of the Internal
Revenue Code of 1986, as amended.


 


7.17 Six Month Delay of Certain Payments.  In the event the payment of any amounts
payable pursuant to Section 5 of this Agreement within six months of the
date of the Executive’s Separation from Service would cause the Executive to
incur any additional tax under Section 409A of the Internal Revenue Code of
1986, as amended, then payment of such amounts shall be delayed until the date
that is six months following the Executive’s Separation from Service (the “Earliest
Payment Date”).  If this provision
becomes applicable, payments that would have been made prior to the Earliest
Payment Date in the absence of this provision will be paid as a lump sum on the
Earliest Payment Date and the remaining severance benefits or other payments
will be paid according to the schedule otherwise applicable to the payments.


 


7.18 Certain Definitions. For purposes of this Agreement:


 


(a) an “affiliate” of any person
means another person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such first person, and includes subsidiaries.


 


(b) A “business day” means the period
from 9:00 am to 5:00 pm on any weekday that is not a banking holiday in New
York City, New York.


 


(c) A “Separation from Service” means
a “separation from service” as defined in Section 1.409A-1(h) of the Treasury
Regulations; provided that in applying Section 1.409A-1(h)(1)(ii) of the
Treasury Regulations, a Separation from Service shall be deemed to occur if the
Company and the Executive reasonably anticipate that the level of bona fide
services the Executive will perform for the Company (whether as an employee or
as an independent contractor) will permanently decrease to less than 50% of the
average level of bona fide services performed by the Executive for the Company
(whether as an employee or as a independent contractor) over the immediately preceding
36-month period (or the full period of services performed for the Company if
the Executive has been providing services to the Company for less than 36
months).  In the event of a disposition
of assets by the Company to an unrelated person, the Company reserves the
discretion to specify (in accordance with Section 1.409A-1(h)(4) of the
Treasury Regulations) whether the Executive who would otherwise experience a
Separation from Service with the Company as part of the disposition of assets
will be considered to experience a Separation from Service for purposes of
Section 1.409A-1(h) of the Treasury Regulations.


 


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(d) A “subsidiary” means any
corporation, partnership, joint venture or other entity in which at least a
majority interest in such entity is owned directly or indirectly by the
Company.


 


7.19 Replacement of Original Employment Agreement.  The Company and the Executive acknowledge and
agree that the Original Employment Agreement is hereby terminated by mutual
consent and neither the Company nor the Executive shall have any continuing
obligation to the other pursuant to the terms of the Original Employment
Agreement.  The mutual agreements and
covenants contained in this Agreement shall replace and supersede in their
entirety the provisions of the Original Employment Agreement, as amended.


 


IN WITNESS WHEREOF, the parties hereto have signed their names as of
the day and year first above written.


 


	
   

  	
  U-STORE IT TRUST

  
	
   

  	
   

  
	
   

  	
  /s/ John C. Dannemiller

  
	
   

  	
  Name:

  	
  John C. Dannemiller

  
	
   

  	
  Title:

  	
  Chairman, Compensation Committee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Dean Jernigan

  
	
   

  	
  Name:  Dean Jernigan

  
				



 


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EXHBIT A


 


SEVERANCE AND GENERAL RELEASE AGREEMENT


 


This agreement made and entered into between
U-Store-It Trust (the “Company”) and                         
(the “Executive”);


 


WHEREAS, the Executive has been employed by the
Company (or its predecessor) since                         
pursuant to that Amended and Restated Executive Employment Agreement dated                     
(the “Employment Agreement”);


 


WHEREAS, the Executive’s employment with the
Company has been terminated under the Employment Agreement, effective                           ;


 


WHEREAS, pursuant to the Employment Agreement,
the Company has expressed its willingness to provide a Severance Payment and
other post-termination benefits (as specifically set forth in the Employment
Agreement, the “Termination Benefits”), in connection with such
termination, upon the terms set forth herein;


 


WHEREAS, pursuant to the Employment Agreement,
the Executive has agreed to accept those benefits upon the terms set forth
herein;


 


NOW, THEREFORE, the parties agree as follows:


 


1.             The recitals set forth above are true and
accurate.


 


2.             As a material inducement to Executive to
enter into this Agreement, the Company will provide the Executive with the
Termination Benefits in accordance with the terms and conditions of the
Employment Agreement, to be paid in the form of regular payroll checks and from
which the Company will make all applicable withholding.  The Executive acknowledges that he is not
entitled to receive the Termination Benefits unless he executes and does not
revoke this Severance and General Release Agreement (the “Agreement”).


 


3.             This Agreement is not and shall not be
construed as an admission by the Executive of any fact or conclusion of
law.  Likewise, this Agreement is not and
shall not be construed as an admission by Company of any fact or conclusion of
law.  Without limiting the general nature
of the previous sentences, this Agreement shall not be construed as an
admission that the Executive, or the Company, or any of the Company’s officers,
directors, managers, agents, or employees have violated any law or regulation
or have violated any contract, express or implied.


 


4.             The Executive represents and warrants that
he has no personal knowledge of any practices engaged in by the Company that is
or was a violation of any applicable state law or regulations or of any federal
law or regulations.  To the extent that
the Executive has


 


1

















 


knowledge of any such practices, the Executive represents and warrants
that the Executive already has notified the Company in writing of such alleged
practices.


 


5.             The Executive represents and warrants that
he has not filed any other complaint(s) or charge(s) against the Company with
the EEOC or the state commission empowered to investigate claims of employment
discrimination or with any other local, state or federal agency or court, and
that if any such agency or court assumes jurisdiction of any complaint(s) or
charge(s) against the Company on behalf of the Executive, the Executive will
request such agency or court to withdraw from the matter, and the Executive
will refuse any benefits derived therefrom. 
This Agreement will not affect the Executive’s right to hereafter file a
charge with or otherwise participate in an investigation or proceeding
conducted by the EEOC regarding matters which arose after the date of this
Agreement and which are not the subject of this Agreement.


 


6.             The Executive hereby irrevocably and
unconditionally releases and forever discharges the Company, its subsidiaries,
parent companies, and related entities, and each of the Company and its
affiliates’ successors, assigns, agents, directors, officers, employees,
representatives, and attorneys, and all persons acting by, through, under or in
concert with any of them (collectively “Released Parties”), or any of them,
from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses (including attorney’s fees
and costs actually incurred), of any nature whatsoever, known or unknown (“Claims”),
which the Executive now has, or claims to have, or which the Executive at any
time heretofore had, or claimed to have, against each or any of the Released
Parties.  The definition of Claims also
specifically encompasses all claims of under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 1981(a), the Age Discrimination in Employment
Act of 1967, as amended, the Employment Retirement Income Security Act, the
Family and Medical Leave Act, the Americans with Disabilities Act, the Fair
Labor Standards Act, the National Labor Relations Act, as well as all claims
under state law provided under other applicable state law or local ordinance
concerning the Executive’s employment. 
This Agreement further specifically encompasses all claims related to
compensation, benefits, incentive packages, or any other form of
compensation the Executive may or may not have received during his
employment.


 


7.             The Executive agrees that he forever
waives and relinquishes any and all claim, right, or interest in reinstatement
or future employment that he presently has or might in the future have
with the Company and its successors and assigns.  The Executive agrees that he will not seek
employment with the Company and its successors and assigns in the future.


 


8.             If any provision of this Agreement is held
to be invalid or unenforceable, the remainder of the Agreement shall
nevertheless remain in full force and effect. 
If any provision is held to be invalid or unenforceable with respect to
particular circumstances, it shall nevertheless remain in full force and effect
in all other circumstances.  No waiver of
any terms of conditions of this Agreement or any part of the Agreement shall be
deemed a


 


2

















 


waiver of any other terms and conditions of this Agreement or with any
later breach of this Agreement.


 


9.             The Executive agrees to indemnify and hold
each and all of the Released Parties harmless from and against any and all
loss, costs, damage, or expense, including, without limitation, attorneys fees,
incurred by the Released Parties, or any of them, arising out of the
Executive’s breach of this Agreement or the fact that any representation made
by him herein was false when made.


 


10.           In the event of any breach of this Agreement
or the Non-Competition Agreement or Section 6 of the Employment
Agreement by the Executive, the Company shall be entitled to immediately cease
payment of the Termination Benefits in addition to any other remedy it may
have.  Both parties understand and agree
that should either of them breach any material term of this Agreement, the
non-breaching party can institute an action to enforce the terms of this Agreement.  If legal action is commenced to enforce any
provision of this Agreement, the substantially prevailing party in such action
shall be entitled to recover its attorneys’ fees and expenses through any and
all trial courts or appellate courts, in addition to any other relief that may
be granted.


 


11.           The Executive represents that he has not
heretofore assigned or transferred, or purported to assign or transfer to any
person or entity, any Claim or any portion thereof or interest therein.


 


12.           The Executive represents and acknowledges
that in executing this Agreement he does not rely and has not relied upon any
other representation or statement made by any of the Released Parties or by any
of the Released Parties’ agents, representatives or attorneys, except as set
forth herein, with regard to the subject matter, basis or effect of this
Agreement.


 


13.           The Executive further agrees that he will
not disparage the Company, its business, its employees, officers or agents, or
any of the Company’s affiliates or related entities in any manner harmful to
their business or business reputation. 
The Executive and the Company agree to keep the matters contained herein
confidential.  The Executive will not
discuss this agreement with any current or former employee(s) of the
Company.  This clause shall not prevent
the Executive from communicating confidentially with his attorney(s) or
immediate family members, or to the extent required by public disclosure laws
or as required by laws, regulations, or a final and binding court order or
other compulsory process.  Likewise, the
Company agrees not to disparage the Executive or otherwise make any negative
statement about the Executive, in writing, orally, or otherwise, in connection
with the matters or claims released herein and expressly including, but not
limited to, matters related to the Executive’s employment with the
Company.  This clause shall not prevent
the Company from communicating confidentially with its attorney(s), officers,
or directors of the corporation, or to the extent required by public disclosure
laws or as required by laws, regulations, or a final and binding court order or
other compulsory process.


 


3

















 


14.           This Agreement shall be binding upon the
Company, the Executive and their respective heirs, administrators,
representatives, executors, successors, and assigns, and shall inure to the
benefit of the Released Parties and each of them, and to their heirs,
administrators, representatives, executor, successors and assigns.


 


15.           All terms not defined herein shall have the
meanings set forth in the Employment Agreement.


 


16.           This Agreement shall in all respects be
interpreted, enforced and governed under the laws of the State of Ohio.


 


17.           This Agreement sets forth the entire
agreement between the parties hereto. 
Any modification, amendment or change to this Agreement must be made in
writing and signed by both parties.


 


The Executive acknowledges that he has been advised to consult with an
attorney prior to executing this Agreement. 
The Executive acknowledges that the Executive has been given a
period of twenty-one (21) days within which to consider this Agreement.  The Executive further acknowledges that this
Agreement may be revoked by the Executive at any time during the seven (7)
day period beginning on the date that the Executive has signed this
Agreement by providing written notice of revocation to:  [insert name and address of Company official to
whom written notice of revocation must be delivered].  This Agreement shall not become effective
if the Executive revokes the Agreement during this 7-day period and will
not become effective otherwise until after expiration of the 7-day period.  The Executive shall not be entitled to
receive any Termination Benefits under this Agreement or otherwise
until the expiration of the revocation period.


 


[Signatures on Following Page]


 


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  U-STORE IT TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ John C. Dannemiller

  
	
  Date

  	
   

  	
  Name:

  	
  John C. Dannemiller

  
	
   

  	
   

  	
  Title:

  	
  Chairman, Compensation Committee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Dean Jernigan

  
	
  Date

  	
   

  	
  Name:  Dean Jernigan

  
					



 


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