Exhibit 10.39
CHRISTOPHER P.
MARR
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
Christopher P. Marr (the “ Executive
”).
WHEREAS, the Company and the
Executive entered into an Employment Agreement, dated June 5, 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 Chief Financial 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 President and Chief Investment 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 June 5, 2009, 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 President and Chief Investment
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 $410,000 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
Genera l. 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
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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.
4. Termination upon
Disability . 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 termination of employment by
virtue of disability (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 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 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 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 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;
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(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 June 5, 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, the death of the Executive or,
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
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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.
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
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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 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 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
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capable of being known and (y) the
date that is 2 ½ months after the end of the calendar year
in which the Separation from Service occurs).
5.6 Termination Without Cause;
Termination for Good Reason; Termination Upon Death . 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 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 5.6 . 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 or if the Executive dies during the Term of this
Agreement, (i) the Executive, or the Executive’s estate
in the event of the Executive’s death, 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
pa