EXHIBIT 10.49
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (this
“Agreement”) is entered into as of January 25,
2008, by and among U-Store-It Trust, a Maryland real estate investment trust (the
“Company”), U-Store-It, L.P., a Delaware limited
partnership (the “Operating Partnership” and together
with the Company, the “Indemnitors”), and
Daniel B. Hurwitz
(the “Indemnitee”).
WHEREAS , the Indemnitee is an officer or a
member of the Board of Trustees of the Company and in such capacity
is performing a valuable service for the Company and the Operating
Partnership;
WHEREAS , Maryland law permits the Company to
enter into contracts with its officers or members of its Board of
Trustees with respect to indemnification of, and advancement of
expenses to, such persons;
WHEREAS,
the Declaration of Trust
of the Company (the “Declaration of Trust”) authorizes
the Company to indemnify and advance expenses to its officers and
trustees to the maximum extent permitted by Maryland law in effect
from time to time;
WHEREAS , the Bylaws of the Company (the
“Bylaws”) provide that each officer and trustee of the
Company shall be indemnified by the Company to the maximum extent
permitted by Maryland law in effect from time to time and shall be
entitled to advancement of expenses consistent with Maryland
law;
WHEREAS , the Company is the general partner
of, and conducts substantially all of its business through, the
Operating Partnership;
WHEREAS,
the Second Amended and
Restated Partnership Agreement of the Operating Partnership (the
“Partnership Agreement”) provides for indemnification
and advancement of expenses to the Company and its officers and
trustees consistent with the applicable provisions of Maryland law,
subject to the same limitations on indemnity and advancement of
expenses that apply under Maryland law to indemnity and advancement
of expenses by the Company of its officers and trustees;
and
WHEREAS , to induce the Indemnitee to provide
services to the Company as an officer or a member of the Board of
Trustees, and to provide the Indemnitee with specific contractual
assurance that indemnification will be available to the Indemnitee
regardless of, among other things, any amendment to or revocation
of the Declaration of Trust, the Bylaws or the Partnership
Agreement, or any acquisition transaction relating to the Company,
the Indemnitors desire to provide the Indemnitee with protection
against personal liability as set forth herein;
NOW, THEREFORE
, in consideration of the
premises and the covenants contained herein, the Indemnitors and
the Indemnitee hereby agree as follows:
1.
DEFINITIONS
.
For
purposes of this Agreement:
(A)
“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 fifty
percent (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 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 of Trustees (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the Board of Trustees; 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 of
Trustees.
(B)
“Corporate Status” describes the
status of a person who is or was a trustee or officer of the
Company (or of any domestic or foreign predecessor entity of the
Company in a merger, consolidation or other transaction in which
the
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predecessor’s interest ceased upon
consummation of the transaction) or is or was serving at the
request of the Company (or any such predecessor entity) as a
director, officer, partner (limited or general), member, trustee,
employee or agent of any other foreign or domestic corporation,
partnership, joint venture, limited liability company, trust, other
enterprise (whether conducted for profit or not for profit) or
employee benefit plan. The Company (and any domestic or foreign
predecessor entity of the Company in a merger, consolidation or
other transaction in which the predecessor’s existence ceased
upon consummation of the transaction) shall be deemed to have
requested the Indemnitee to serve an employee benefit plan where
the performance of the Indemnitee’s duties to the Company (or
any such predecessor entity) also imposes or imposed duties on, or
otherwise involves or involved services by, the Indemnitee to the
plan or participants or beneficiaries of the plan.
(C)
“Expenses”
shall include all attorneys’ and paralegals’ fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, or being or preparing to be a witness in
a Proceeding.
(D)
“Proceeding”
includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing, or any
other proceeding, including appeals therefrom, whether civil,
criminal, administrative, or investigative, except one initiated by
the Indemnitee pursuant to paragraph 8 of this Agreement to enforce
such Indemnitee’s rights under this
Agreement.
(E)
“Special Legal
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is,
or in the past two years has been, retained to represent
(i) the Indemnitors or the Indemnitee in any matter material
to either such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification
hereunder.
2.
INDEMNIFICATION
The
Indemnitee shall be entitled to the rights of indemnification
provided in this paragraph 2 and under applicable law, the
Declaration of Trust, the Bylaws, the Partnership Agreement, any
other agreement, a vote of shareholders or resolution of the Board
of Trustees or otherwise if, by reason of such Indemnitee’s
Corporate Status, such Indemnitee is, or is threatened to be made,
a party to any threatened, pending, or completed Proceeding,
including a Proceeding by or in the right of the Company or the
Operating Partnership. Unless prohibited by paragraph 13
hereof and subject to the other provisions of this Agreement, the
Indemnitee shall be indemnified hereunder, to the maximum extent
provided by Maryland law in effect from time to time, against
judgments, penalties, fines, and settlements and reasonable
Expenses actually incurred by or on behalf of such Indemnitee in
connection with such Proceeding or any claim, issue or matter
therein; provided, however, that if such Proceeding was one by or
in the right of
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the Company or the
Operating Partnership, indemnification may not be made in respect
of such Proceeding if the Indemnitee shall have been adjudged to be
liable to the Company or the Operating Partnership. For
purposes of this paragraph 2, excise taxes assessed on the
Indemnitee with respect to an employee benefit plan pursuant to
applicable law shall be deemed fines.
3.
EXPENSES OF A SUCCESSFUL
PARTY
Without limiting the effect of any other
provision of this Agreement and without regard to the provisions of
paragraph 6 hereof, to the extent that the Indemnitee is, by reason
of such Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding pursuant
to a final non-appealable order, such Indemnitee shall be
indemnified against all reasonable Expenses actually incurred by
such Indemnitee in connection therewith. If the Indemnitee is
not wholly successful in such Proceeding pursuant to a final
non-appealable order but is successful, on the merits or otherwise,
as to one or more but less than all claims, issues, or matters in
such Proceeding pursuant to a final non-appealable order, the
Indemnitors shall indemnify the Indemnitee against all reasonable
Expenses actually incurred by such Indemnitee in connection with
each successfully resolved claim, issue or matter. For
purposes of this paragraph and without limitation, the termination
of any claim, issue or matter in such Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as
to such claim, issue or matter.
4.
ADVANCEMENT OF
EXPENSES
The
Indemnitors shall advance all reasonable Expenses incurred by the
Indemnitee in connection with any Proceeding within 20 days after
the receipt by the Indemnitors of a statement from the Indemnitee
requesting such advance from time to time, whether prior to or
after final disposition of such Proceeding. Such statement
shall reasonably evidence the Expenses incurred or to be incurred
by the Indemnitee and shall include or be preceded or accompanied
by (i) a written affirmation by the Indemnitee of the
Indemnitee’s good faith belief that the standard of conduct
necessary for indemnification by the Indemnitors as authorized by
this Agreement has been met and (ii) a written undertaking by
or on behalf of the Indemnitee to repay the amounts advanced if it
should ultimately be determined that the standard of conduct has
not been met. The undertaking required by clause (ii) of
the immediately preceding sentence shall be an unlimited general
obligation of the Indemnitee but need not be secured and may be
accepted without reference to financial ability to make the
repayment.
5.
WITNESS
EXPENSES
Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee is, by reason of such
Indemnitee’s Corporate Status, a witness for any reason in
any Proceeding to which such Indemnitee is not a named defendant or
respondent, such Indemnitee shall be indemnified by the Indemnitors
against all Expenses actually incurred by or on behalf of such
Indemnitee in connection therewith.
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6.
DETERMINATION OF ENTITLEMENT
TO AND AUTHORIZATION OF INDEMNIFICATION
(A)
To obtain indemnification
under this Agreement, the Indemnitee shall submit to the
Indemnitors a written request, including therewith such
documentation and information reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to
indemnification.
(B)
Indemnification under this
Agreement may not be made unless authorized for a specific
Proceeding after a determination has been made in accordance with
this Section 6(B) that indemnification of the Indemnitee
is permissible in the circumstances because the Indemnitee has met
the following standard of conduct: the Indemnitors shall indemnify
the Indemnitee in accordance with the provisions of paragraph 2
hereof, unless it is established that: (a) the act or
omission of the Indemnitee was material to the matter giving rise
to the Proceeding and (x) was committed in bad faith or
(y) was the result of active and deliberate dishonesty;
(b) the Indemnitee actually received an improper personal
benefit in money, property or services; or (c) in the case of
any criminal proceeding, the Indemnitee had reasonable cause to
believe that the act or omission was unlawful. Upon receipt
by the Indemnitors of the Indemnitee’s written request for
indemnification pursuant to subparagraph 6(A), a determination as
to whether the applicable standard of conduct has been met shall be
made within the period specified in paragraph 6(E):
(i) if a Change in Control shall have occurred, by Special
Legal Counsel in a written opinion to the Board of Trustees, a copy
of which shall be delivered to the Indemnitee, with Special Legal
Counsel selected by the Indemnitee (unless the Indemnitee shall
request that such determination be made by the person or persons
and in the manner provided in clause (ii) of this paragraph
6(B), in which event the provisions of such clause (ii) shall
apply) (If the Indemnitee selects Special Legal Counsel to make the
determination under this clause (i), the Indemnitee shall give
prompt written notice to the Indemnitors advising them of the
identity of the Special Legal Counsel so selected); or (ii) if
a Change in Control shall not have occurred, (A) by the Board
of Trustees by a majority vote of a quorum consisting of trustees
not, at the time, parties to the Proceeding, or, if such quorum
cannot be obtained, then by a majority vote of a committee of the
Board of Trustees consisting solely of two or more trustees not, at
the time, parties to such Proceeding and who were duly designated
to act in the matter by a majority vote of the full Board of
Trustees in which the designated
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