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TRUSTEES DEFERRED COMPENSATION PLAN

Executive Compensation Plan Agreement

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This Executive Compensation Plan Agreement involves

U-STORE-IT TRUST

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Title: TRUSTEES DEFERRED COMPENSATION PLAN
Governing Law: Ohio     Date: 3/2/2009
Industry: Real Estate Operations     Sector: Services

TRUSTEES DEFERRED COMPENSATION PLAN, Parties: u-store-it trust
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Exhibit 10.78

 

U-STORE-IT TRUST

 

TRUSTEES DEFERRED COMPENSATION PLAN

 

 

Amended and Restated Effective January 1, 2009

 



 

TABLE OF CONTENTS

 

 

 

PAGE

 

 

 

ARTICLE 1 PURPOSE

 

1

 

 

 

ARTICLE 2 DEFINITIONS

 

1

 

 

 

ARTICLE 3 PARTICIPATION

 

3

3.1

Eligibility

 

3

3.2

Participation

 

3

 

 

 

 

ARTICLE 4 BENEFITS

 

3

4.1

Deferred Compensation

 

3

4.2

Election Procedures

 

3

4.3

One Time Change in Time and Form of Payment

 

4

 

 

 

 

ARTICLE 5 ACCOUNTS

 

5

5.1

Participant Accounts

 

5

5.2

Returns on Distribution Accounts

 

5

5.3

Deemed Investment Options

 

5

5.4

Changes in Deemed Investment Options

 

6

5.5

Valuation of Accounts

 

6

5.6

Statement of Accounts

 

6

5.7

Distributions from Accounts

 

6

5.8

Deemed Company Stock Fund

 

6

 

 

 

 

ARTICLE 6 DISTRIBUTIONS

 

7

6.1

Retirement Distribution Option

 

7

6.2

In-Service Distribution Option

 

7

 

 

 

 

ARTICLE 7 BENEFITS TO PARTICIPANTS

 

7

7.1

Benefits Under the Retirement Distribution Option

 

7

7.2

Benefits Under the In-Service Distribution Option

 

8

 

 

 

 

ARTICLE 8 SURVIVOR BENEFITS

 

9

8.1

Death of Participant Prior to the Commencement of Benefits

 

9

8.2

Survivor Benefits Under the Retirement Distribution Option

 

9

8.3

Survivor Benefits Under the In-Service Distribution Option

 

9

8.4

Death of Participant After Benefits Have Commenced

 

9

 

 

 

 

ARTICLE 9 EMERGENCY BENEFIT

 

9

 

 

 

ARTICLE 10 ADMINISTRATION

 

10

10.1

Plan Administrator

 

10

10.2

Appointment of Administrative Committee

 

10

 



 

10.3

Powers of Plan Administrator

 

10

10.4

Limitation of Liability

 

11

10.5

Claims Procedures.

 

11

 

 

 

 

ARTICLE 11 MISCELLANEOUS

 

12

11.1

Unfunded Plan.

 

12

11.2

Spendthrift Provision

 

12

11.3

Employment Rights

 

12

11.4

Designation of Beneficiary

 

12

11.5

Amendment or Termination

 

13

11.6

No Fiduciary Relationship Created

 

13

11.7

Release

 

13

11.8

No Warranty or Representation

 

13

11.9

Construction

 

13

11.10

Governing Law

 

13

11.11

Counterparts

 

13

11.12

American Jobs Creation Act of 2004

 

13

11.13

Transition Elections

 

13

11.14

Permissible Accelerations

 

14

 

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.

 

2



 

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

 

3



 

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

 

4



 

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.

 

5



 

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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