Exhibit 10.70


 


U-Store-It


460 East Swedesford Road


Suite 3000


Wayne, Pennsylvania 19087


 


By Hand
Delivery


 


January 9,
2009


 


Jeffrey
P. Foster


247
Delaware Street


Woodbury,
NJ 08906


 


Dear
Jeffrey:


 


We
are pleased to confirm our offer of employment as Senior Vice President and
Chief Legal Officer for U-Store-It (referred to herein as “We” or the “Company”)
and we wanted to take this opportunity to convey some important information
regarding your new position.  Defined
terms not otherwise set forth in this Letter are defined on the Addendum
attached hereto.


 


Your
first day of employment will be on a mutually acceptable date, but in no event
later than February 16, 2009 and you will report to Christopher Marr,
President and Chief Investment Officer. 
You will be compensated a base salary at the rate of $255,000 per year,
payable on a semi-monthly basis.  You are
eligible for a target annual incentive award covering performance for the year
ended December 31, 2009 in the form of a cash payment of 55% of your base salary
dependent upon the achievement of the corporate goals and objectives weighted
at 70%, and individual management objectives weighted at 30%, which shall both
be prorated for the portion of 2009 you are employed by the Company.  Under the current plan, you would be eligible
to earn up to 200% of the target award related to corporate goals and
objectives and up to 150% of the target award related to individual goals. In
addition, you will be eligible for annual target long-term incentive awards in
the amount of $230,000; such award value to be allocated 50% in stock options,
25% in restricted shares and 25% in performance-vested restricted shares,
prorated for the portion of 2009 that you are employed by the Company.  For your reference, I have attached to this
letter, copies of the draft grant agreements for these awards.  Please note that the grants will be made not
later than thirty (30) days after your first day of employment with the Company
and the number of shares will be determined on that date.  In addition, the Company will grant you 2,500
common shares of the Company (which shares shall immediately vest on granting)
on the condition that prior to your first day of employment with the Company
you purchase on the open market an equal number of common shares of the
Company.  The Company reserves the right
to request confirmation of your purchase of the common shares set forth in the
preceding sentence.


 


You will be eligible to receive 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 or in lieu of providing such
allowance, the Company will provide you with an automobile of suitable standard
to your position and as approved by Christopher Marr.  You will be offered participation in the
Company benefit plans, when eligible, which includes health, vision, and dental
coverage for you and your dependents, life and ad&d, short and long-term
disability, 401(k), Deferred Compensation, Section 125 flexible spending
and access to an Employee Assistance Plan. 
You will accrue vacation at a rate of twenty (20) days per year and sick
time and paid holidays according to Company policy.   In addition to the foregoing benefits, you
will be eligible to participate in any similar benefit programs 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 you are eligible under the terms of such plans or
programs.  The Company shall also
maintain customary liability insurance for trustees and officers and list you
as a covered officer under such policy(ies).


 

















 


The Company shall pay or reimburse you for all ordinary and reasonable
out-of-pocket business expenses incurred (and, in the case of reimbursement,
paid) by you during your employment with the Company, pursuant to the Company’s
standard expense reimbursement policy as in effect from time to time, so long
as you provide proper documentation establishing the amount, date and business
purpose of the expenses.  Out-of-pocket
business expenses shall include, without limitation, the costs and expenses
required to maintain your bar membership and continuing legal education
requirements in the states where you are presently licensed and in any other
states for which the Company requests your bar admission.


 


Because
this position is classified as exempt, you will not be eligible for overtime
pay and the nature and scope of your responsibilities will dictate the amount
of time and number of hours/days per work week which the Company expects you
will find necessary to devote to the performance of your duties in order to
meet successfully the goals of the Company. 
Our offer of employment is contingent upon your completing and passing a
full background check and drug test as well as the ability to verify that you
lawfully are permitted to work in the United States.  Consequently, you will be required to
provide, within the first three (3) days of employment, the documents
necessary to establish your identity and eligibility for employment.


 


Your
employment with the company is “at-will”, meaning that subject to the
conditions set forth in this paragraph and on at least sixty (60) days prior
written notice from the Company or thirty (30) days prior written notice from
you, both you and the Company have the right to terminate the employment
relationship at any time for no reason. 
If the Company terminates your employment relationship pursuant to this
paragraph, the Company shall pay you the Severance Amount within 30 days of
receiving a form of waiver and release acceptable to the Companyand shall
continue for a period not to exceed 12 months medical, prescription and dental
benefits to you and your family at least equal to those which would have been
provided to you 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 your employment had not been terminated, provided, however, that if you
become reemployed with another employer and you are eligible to receive
medical, prescription and dental benefits under another employer provided plan,
the medical, prescription and dental benefits described herein shall terminate
(collectively, the “Insurance Benefits”).  Except for the reasons set forth in the next
paragraph, if youelect to terminate your employment with the Company, you
understand that you are not entitled to receive the Severance Amount or the
Insurance Benefits.


 


If
during the one-year period following the date of a Change of Control you
terminate your employment for Good Reason or during (1) the six month
period prior to the date on which a Change of Control occurs, or (2) the
one-year period following the date a Change of Control occurs, your employment
is terminated by the Company without Cause, not later than thirty (30) days
after the effective date of such termination, you will receive a cash payment
equal to two times the sum of (a) your annual salary as in effect on the
date of the Change of Control, plus (b) the average of the sum of the two
previous annual incentive awards received by you at the time of your
termination, or if you have not received an annual incentive award or only
receive one annual incentive award at the time of such termination, an amount
equal to two times the average of the sum of such annual incentive awards you
would have received under the second paragraph of this letter if you would have
remained employed through the period required to be entitled to receive the
annual incentive award and satisfied all target performance objectives, plus (c) the
average of the sum of the two previous annual long-term incentive awards, plus (d) the
Insurance Benefits.  In addition and
notwithstanding anything contrary contained in any plan, all grants and awards
of equity (and any accrued dividends or distributions thereon) held by you
shall become fully vested and exercisable on the effective date of your
termination under this paragraph.


 


If
either payment made to you under the preceding two paragraphs within six months
of the date of your termination of employment would cause you 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 your termination date (“Earliest Payment Date”).  If this provision becomes applicable, it is
anticipated that payments that would have been made prior to the Earliest
Payment Date in the absence of this provision would be paid as a lump sum on
the Earliest Payment Date and the remaining severance benefits or other
payments would be paid according to the schedule otherwise applicable to the
payments.


 


In
connection with your duties as Chief Legal Officer, you will have access to
Company Confidential Information.  You
shall keep secret and retain in strictest confidence, and shall not use for
your personal 


 

















 


benefit
or the benefit of others or directly or indirectly disclose any Company
Confidential Information, except (a) as may be required or appropriate in
connection with the carrying out of your duties, (b) with the Company’s
express written consent, or (c) as may otherwise be required by law or any
legal process.  All memoranda, notes,
lists, records, property and any other tangible product and documents (and all
copies thereof) made, produced or compiled by you or made available to you
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 Employee 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.
The Employee acknowledges and agrees that any breach by him regarding
Confidential Company Information would result in irreparable injury and damage
for which money damages would not provide an adequate remedy. Therefore, if the
Employee breaches any of the provisions of this paragraph, the Company and its
affiliates shall have the right and remedy to have the terms of this paragraph
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 you 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).


 


If
any payments made to you or any benefit received by you from the Company is
deemed to constitute a Parachute Payment, alone or when added to any other
amount payable or paid to or other benefit receivable or received by you 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
you 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 you are
entitled , you shall be paid by the Company an amount in cash equal to the sum
of the excise taxes payable by you by reason of receiving Parachute Payments
plus the amount necessary to put you 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 paragraph), as if no excise taxes had been imposed with
respect to Parachute Payments.  The
amount of any payment under this paragraph shall be computed by a certified
public accounting firm mutually and reasonably acceptable to you and the
Company, the computation expenses of which shall be paid by the Company.


 


The
terms of this letter and your employment shall be governed by the laws of the
Commonwealth of Pennsylvania without regard to principles of conflicts of
law.  The terms of this letter shall be
reviewed by you and the Company on an annual basis.


 


Jeffrey,
on behalf of the entire U-Store-It team, we look forward to working with
you!   We believe you will find your
association with U-Store-It to be attractive in terms of your responsibilities,
personal job satisfaction and opportunities for professional development.  Please confirm your acceptance of this offer
by signing this employment letter and returning it to me not later than
                ,
200   .


 


Sincerely,


 


	
  /s/
  Christopher Marr

  	
   

  
	
  Christopher
  Marr,

  	
   

  
	
  President
  and Chief Investment Officer

  	
   

  



 


 


I
have reviewed the foregoing, I understand the terms, and I accept the terms of
this offer of employment.


 


 


	
   

  	
   

  	
   

  
	
  /s/
  Jeffrey P. Foster

  	
   

  	
   

  
	
  Jeffrey
  P. Foster

  	
   

  	
  Date

  



 

















 


ADDENDUM


 


Defined Terms


 


Cause shall mean (A) the
conviction for (or pleading nolo contendere to) any felony or a misdemeanor
involving moral turpitude; (B) the commission of an act of fraud, theft or
dishonesty related to the business of the Company or its affiliates or the
performance of your duties; (C) the willful and continuing failure or
habitual neglect to perform your duties; or (D) any material violation
regarding Confidential Company Information (defined below).


 


Change of
Control shall mean (A) the dissolution
or liquidation of the Company, (B) 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, (C) 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, (D) 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
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 (E) 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;


 


Confidential
Company Information shall mean 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 Employee 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


 


Good
Reason shall mean (A) the material reduction of your authority, duties
and responsibilities, or the assignment to you of duties or responsibilities
materially and adversely inconsistent with your position or positions with the
Company and its subsidiaries and affiliates; (B) a material reduction in
base salary; (C) a Change of Control; (D) the relocation of the Company’s
headquarters more than fifty (50) miles from the Company’s offices in Wayne,
Pennsylvania, unless the relocation results in the work location being closer
to your primary residence; or (E) the Company’s material and willful
breach of this Letter or any other agreement between you and the Company.  An event or condition shall cease to
constitute Good Reason one (1) year after the event or condition first
occurs.


 


Parachute
Payment or Parachute Payments shall mean any
payment deemed to constitute a “parachute payment” as defined in Section 280G
of the Internal Revenue Code of 1986, as amended.


 


Severance
Payment shall mean for the period on or prior to December 31, 2009, the
sum of $350,000, and thereafter, increased annually at the greater of (a) the
percentage increase in base salary granted to you by the Company, or (b) the
increase in the consumer price index from the preceding calendar year.