Exhibit 10.40


 


TIMOTHY M. MARTIN


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 Timothy M. Martin (the “Executive”).


 


WHEREAS, the Company and the Executive
entered into an Employment Agreement, dated December 11, 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 Senior
Vice President and Chief Accounting 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
Financial 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 December 31, 2007 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 Financial 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 $225,000 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 proper documentation establishing the amount, date
and business purpose of the expenses.


 


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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:


 


(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;


 


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(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 December 11, 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 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,


 


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(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.


 


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


 


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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 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


 


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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 two (2) 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
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.


 


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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.


 


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


 


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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 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.


 


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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.


 


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.


 


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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 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.


 


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(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.


 


(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/ Dean Jernigan

  
	
   

  	
   

  	
  Name:

  	
  Dean Jernigan

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Timothy M. Martin

  
	
   

  	
   

  	
  Name:

  	
  Timothy M. Martin

  






 


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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/ Dean Jernigan

  
	
  Date

  	
   

  	
  Name:

  	
  Dean Jernigan

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Timothy M. Martin

  
	
  Date

  	
   

  	
  Name:

  	
  Timothy M. Martin

  






 


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