Exhibit 10.78
U-STORE-IT TRUST
TRUSTEES DEFERRED COMPENSATION PLAN
Amended and Restated Effective January 1,
2009
TABLE OF CONTENTS
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PAGE
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ARTICLE 1 PURPOSE
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1
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ARTICLE 2 DEFINITIONS
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1
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ARTICLE 3 PARTICIPATION
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3
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3.1
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Eligibility
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3
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3.2
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Participation
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3
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ARTICLE 4 BENEFITS
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3
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4.1
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Deferred Compensation
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3
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4.2
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Election Procedures
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3
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4.3
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One Time Change in Time and Form of
Payment
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4
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ARTICLE 5 ACCOUNTS
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5
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5.1
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Participant Accounts
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5
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5.2
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Returns on Distribution Accounts
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5
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5.3
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Deemed Investment Options
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5
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5.4
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Changes in Deemed Investment Options
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6
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5.5
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Valuation of Accounts
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6
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5.6
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Statement of Accounts
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6
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5.7
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Distributions from Accounts
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6
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5.8
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Deemed Company Stock Fund
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6
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ARTICLE 6 DISTRIBUTIONS
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7
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6.1
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Retirement Distribution Option
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7
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6.2
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In-Service Distribution Option
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7
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ARTICLE 7 BENEFITS TO PARTICIPANTS
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7
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7.1
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Benefits Under the Retirement Distribution
Option
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7
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7.2
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Benefits Under the In-Service Distribution
Option
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8
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ARTICLE 8 SURVIVOR BENEFITS
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9
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8.1
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Death of Participant Prior to the Commencement
of Benefits
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9
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8.2
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Survivor Benefits Under the Retirement
Distribution Option
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9
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8.3
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Survivor Benefits Under the In-Service
Distribution Option
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9
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8.4
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Death of Participant After Benefits Have
Commenced
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9
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ARTICLE 9 EMERGENCY BENEFIT
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9
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ARTICLE 10 ADMINISTRATION
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10
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10.1
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Plan Administrator
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10
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10.2
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Appointment of Administrative
Committee
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10
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10.3
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Powers of Plan Administrator
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10
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10.4
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Limitation of Liability
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11
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10.5
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Claims Procedures.
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11
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ARTICLE 11 MISCELLANEOUS
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12
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11.1
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Unfunded Plan.
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12
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11.2
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Spendthrift Provision
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12
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11.3
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Employment Rights
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12
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11.4
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Designation of Beneficiary
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12
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11.5
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Amendment or Termination
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13
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11.6
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No Fiduciary Relationship Created
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13
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11.7
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Release
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13
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11.8
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No Warranty or Representation
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13
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11.9
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Construction
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13
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11.10
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Governing Law
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13
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11.11
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Counterparts
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13
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11.12
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American Jobs Creation Act of 2004
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13
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11.13
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Transition Elections
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13
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11.14
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Permissible Accelerations
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14
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2
U-STORE-IT TRUST TRUSTEES
DEFERRED COMPENSATION PLAN
ARTICLE 1
PURPOSE
The U-Store-It Trust Trustees
Deferred Compensation Plan (the “Plan”) is hereby
amended and restated in accordance with the following terms and
conditions for the purpose of providing a vehicle for deferring the
payment of Compensation to members of the Board and promoting the
success of U-Store-It Trust by aligning the financial interests of
the Trustees providing services to the Company with long term
shareholder value. The Plan is intended to be a non-qualified
deferred compensation arrangement. The Plan was originally adopted
by the Board on December 13, 2006, amended and restated as of
January 1, 2007 and is hereby further amended and restated
effective January 1, 2009.
ARTICLE 2
DEFINITIONS
The following terms shall have the
following meanings described in this Article unless the context
clearly indicates another meaning. All references in the Plan to
specific Articles or Sections shall refer to Articles or Sections
of the Plan unless otherwise stated.
2.1
Account means the record or records established for
each Participant in accordance with Section 5.1.
2.2
Beneficiary means the person or persons who, pursuant
to Article 8, are entitled to a distribution from the Plan after a
Participant’s death.
2.3
Board means the Board of Trustees of the
Company.
2.4
Code means the Internal Revenue Code of 1986, as
amended.
2.5
Company means U-Store-It Trust, a Maryland real
estate investment trust.
2.6
Compensation means for a Plan Year the annual fee
related to Board membership, Board meetings and Board committee
meetings payable to a Trustee for services rendered as a member of
the Board during such Plan Year that would otherwise be reported on
Form 1099 — MISC. Notwithstanding the foregoing, Compensation
does not include expense reimbursements incurred in connection with
attendance at Board meetings.
2.7
Compensation Committee means the Compensation
Committee of the Board of Trustees or, at any time that no such
committee exists, the Board.
2.8
Deferred Compensation means the portion of a
Participant’s Compensation allocated to the
Participant’s Retirement Distribution Account or an
In-Service Distribution Account in accordance with Section 4.1 of
the Plan.
2.9
Deemed Investment Options means the deemed investment
options selected by the Participant from time to time pursuant to
which deemed earnings are credited to the Participant’s
Distribution Accounts.
2.10
Distribution Account means, with respect to a
Participant, the Retirement Distribution Account and/or the
In-Service Distribution Accounts established on the books of
account of the Company, pursuant to Section 5.1.
2.11
Distribution Option means the two distribution
options which are available under the Plan, consisting of the
Retirement Distribution Option and the In-Service Distribution
Option.
2.12
Election Agreement means the written agreement
entered into by a Trustee, pursuant to which the Trustee becomes a
Participant in the Plan and makes an election relating to Deferred
Compensation and the period over which Deferred Compensation and
investment return thereon will be paid.
2.13
In-Service Distribution Accounts means the Accounts
maintained for a Participant for each Plan Year to which Deferred
Compensation is credited pursuant to the In-Service Distribution
Option.
2.14
In-Service Distribution Option means the Distribution
Option pursuant to which benefits are payable in accordance with
Section 7.2.
2.15
Participant means any Trustee (a) who is selected to
participate in the Plan, (b) who elects to participate in the Plan,
(c) who signs an Election, (d) whose signed Election Form is
accepted by the Plan Administrator, and (e) who commences
participation in the Plan.
2.16
Plan means the plan, the terms and provisions of
which are herein set forth, and as it may be amended or restated
from time to time, designated as the “U-Store-It Trust
Trustees Deferred Compensation Plan.”
2.17
Plan Administrator means the Company.
2.18
Plan Year means the period beginning on January 1 and
ending on December 31 of each year.
2.19
Retirement means a Participant’s Separation
from Service as a Trustee (for reasons other than death) at or
after age 55.
2.20
Retirement Distribution Account means the Account
maintained for a Participant to which Deferred Compensation is
credited pursuant to the Retirement Distribution
Option.
2.21
Retirement Distribution Option means the Distribution
Option pursuant to which benefits are payable in accordance with
Section 7.1.
2.22
Separation from Service means a “separation
from service” as defined in Section 1.409A-1(h) of the
Treasury Regulations.
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2.23
Trust means any domestic trust that may be maintained
in the United States pursuant to Section 11.1.
2.24
Trustee means any individual who is a member of the
Board.
ARTICLE 3
PARTICIPATION
3.1
Eligibility . Trustee shall be eligible to participate in
the Plan if he or she is a Trustee designated as eligible by the
Board or the Compensation Committee. Individuals not specifically
designated by the Board or the Compensation Committee are not
eligible to participate in the Plan.
3.2
Participation . A Trustee shall become a Participant as of
the date he or she satisfies the eligibility requirements of
Section 3.1 and completes all administrative forms required by the
Plan Administrator. A Participant’s participation in the Plan
shall terminate upon Separation from Service, voluntarily or
involuntarily, for any reason, including death or upon such other
events as determined by the Board or the Compensation
Committee.
ARTICLE 4
BENEFITS
4.1
Deferred Compensation . Subject to any limitations
established by the Compensation Committee or the Plan Administrator
and in accordance with the procedures described in Section 4.2, a
Participant may elect for a Plan Year to have his or her
Compensation deferred in any amount, expressed as a percentage, and
to have that amount credited to his or her Retirement Distribution
Account or In-Service Distribution Account for such Plan Year as
Deferred Compensation. Deferred Compensation shall be credited to a
Participant’s Accounts as of the date it would be payable but
for the election to defer.
4.2
Election Procedures .
(a)
Except as provided in paragraph (b) below, Compensation for
services performed during a Plan Year may be deferred at the
Participant’s election only if the election to defer such
Compensation is made not later than the close of the preceding Plan
Year.
(b)
In the case of the first year in which a Participant becomes
eligible to participate in the Plan, the Participant’s
election shall only be valid with respect to compensation earned
with respect to services to be performed subsequent to the date of
the election which must be made within 30 days after the date the
Participant becomes eligible to participate in the
Plan.
(c)
Each Participant shall on his or her Election Agreement with
respect to each Plan Year (i) specify the percentage of
Compensation the Participant elects to defer for such Plan Year;
(ii) allocate his or her deferrals between the In-Service
Distribution
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Option and the
Retirement Distribution Option in increments of ten percent,
provided, however, that 100 percent of such deferrals may be
allocated to one or the other of the Distribution Options; (iii)
with respect to amounts allocated to the Retirement Distribution
Option for the first Plan Year in which amounts are allocated to
the Retirement Distribution Option, elect whether such amounts will
be paid in a single lump sum or in annual installments payable over
five, ten, or fifteen years upon the Participant’s Separation
from Service; and (iv) with respect to amounts allocated to the
In-Service Distribution Option for the Plan Year, elect the time
and manner of distribution from among the options described in
Section 7.2. Moreover, (x) at any time prior to the first Plan Year
or other period in which a Participant defers compensation into his
or her Retirement Distribution Account, such Participant may
irrevocably specify in his or her Election Agreement that
distribution of his or her Retirement Distribution Account is to be
made in a lump sum on the 60th day following the date of a change
in control event within the meaning of Section 1.409A-3(i)(5) of
the Treasury Regulations, notwithstanding any other election made
hereunder, and (y) at any time prior to the first Plan Year or
other period in which a Participant defers compensation into an
In-Service Distribution Account, such Participant may irrevocably
specify in his Election Agreement that distribution of such
In-Service Distribution Account is to be made in a lump sum on the
60th day following the date of a change in control event within the
meaning of Section 1.409A-3(i)(5) of the Treasury Regulations,
notwithstanding any other election made hereunder.
(d)
A Participant can change his or her Election Agreement and an
eligible Trustee who is not a Participant may become a Participant,
as of any January 1 by completing, signing and filing an Election
Agreement with the Plan Administrator not later than the preceding
December 31 (subject, however, to the provisions of paragraph (b)
above in the case of a Participant who becomes newly eligible
during the Plan Year). A Participant who does not complete a new
Election Agreement for a Plan Year will be deemed to have elected
not to have any Deferred Compensation for the Plan Year. In the
event any amount is credited to the Account of a Participant with
respect to which no timely election concerning method of payment
has been made, such amount shall be credited to the Retirement
Distribution Account of such Participant and if such Participant
does not have a Retirement Distribution Account election on file,
such Participant will be deemed to have elected a single lump sum
to be paid on the 60th day after the date of
Retirement.
(e)
An election of Deferred Compensation shall be irrevocable on the
first day of the Plan Year (or other period) to which it relates,
except that in the case of an unforeseeable emergency as defined in
Article 9, the election shall be cancelled for the remainder of the
Plan Year.
(f)
All Election Agreements shall be in a form acceptable to the Plan
Administrator and shall be completed, signed, and filed with the
Plan Administrator as provided herein.
4.3
One Time Change in Time and Form of Payment .
Notwithstanding the method of payment elected or deemed elected by
a Participant with respect to his Retirement Distribution Account
or any of his In-Service Distribution
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Accounts in accordance with
Section 4.2(c)(iii), 4.2(c)(iv) or 4.2(d), such Participant may
elect to make one change to the time or form of any such payment to
any other permissible payment option at any time up to 12 months
before the first scheduled payment; provided, however, that (a) any
such election shall not be effective for at least 12 months
following the date made; and (b) to the extent required by Section
409A of the Code, as a result of any such change, payment or
commencement of payment shall be delayed for 5 years from the date
the first payment was scheduled to have been paid.
ARTICLE 5
ACCOUNTS
5.1
Participant Accounts . The Plan Administrator shall
establish separate Distribution Accounts with respect to a
Participant for each Distribution Option. A Participant’s
Distribution Accounts shall consist of the Retirement Distribution
Account and one or more In-Service Distribution Accounts. A
Participant’s Distribution Accounts shall be maintained by
the Plan Administrator in accordance with the terms of this Plan
until all of the Deferred Compensation and investment return to
which a Participant is entitled has been distributed to a
Participant or his or her beneficiary in accordance with the terms
of the Plan. A Participant shall be fully vested in his or her
Distribution Accounts at all times.
5.2
Returns on Distribution Accounts . A Participant’s
Distribution Accounts shall be credited with returns in accordance
with the Deemed Investment Options elected by the Participant from
time to time. Participants may allocate their Retirement
Distribution Account and/or each of their In-Service Distribution
Accounts among the Deemed Investment Options available under the
Plan only in whole percentages of not less than one (1) percent.
The rate of return, positive or negative, credited under each
Deemed Investment Option is based upon the actual investment
performance of the corresponding investment portfolios of the
Company’s qualified defined contribution plan, or such other
investment fund(s) as the Compensation Committee may designate from
time to time, and shall equal the total return of such investment
fund net of asset based charges, including, without limitation,
money management fees, fund expenses and mortality and expense risk
insurance contract charges. The Compensation Committee reserves the
right, on a prospective basis, to add or delete Deemed Investment
Options.
5.3
Deemed Investment Options . Except as otherwise provided
pursuant to Section 5.2, the Deemed Investment Options available
under the Plan shall consist of pre-determined actual investment
options which correspond to certain investment portfolios of the
Company’s qualified defined contribution plan, or such other
investment fund(s) as the Compensation Committee may designate from
time to time.
Notwithstanding that the rates of
return credited to Participants’ Distribution Accounts under
the Deemed Investment Options are based upon the actual performance
of the corresponding portfolios of the Company’s qualified
defined contribution plan, or such other investment fund(s) as the
Compensation Committee may designate, the Company shall not be
obligated to invest any Deferred Compensation by Participants under
this Plan, or any other amounts, in such portfolios or in any other
investment funds.
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5.4
Changes in Deemed Investment Options. A Participant may
change the Deemed Investment Options to which the
Participant’s Distribution Accounts are deemed to be
allocated with whatever frequency is determined by the Plan
Administrator, which shall not be less than four times per Plan
Year. Each such change may include (a) reallocation of the
Participant’s existing Accounts in whole percentages of not
less than one (1) percent, and/or (b) change in
investment allocation of amounts to be credited to the
Participant’s Accounts in the future, as the Participant may
elect. Notwithstanding the provisions herein, any change that
reallocates Participant’s existing Accounts to or from the
deemed Company Stock Fund or that increases or reduces the
allocation to the deemed Company Stock Fund shall not become
effective until the first business day of the next calendar
quarter, or such other date as is determined by the Compensation
Committee in its sole discretion.
5.5
Valuation of Accounts . The value of a Participant’s
Distribution Accounts as of any date shall equal the amounts
theretofore credited to such Accounts, including any earnings
(positive or negative) deemed to be earned on such Accounts in
accordance with Section 5.2 through the day preceding such
date, less the amounts theretofore deducted from such
Accounts.
5.6
Statement of Accounts . The Plan Administrator shall provide
to each Participant, not less frequently than quarterly, a
statement in such form as the Plan Administrator deems desirable
setting forth the balance standing to the credit of each
Participant in each of his Distribution Accounts.
5.7
Distributions from Accounts . Any distribution made to or on
behalf of a Participant from one or more of his
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