NONCOMPETITION AGREEMENT
Exhibit 10.3
THIS NONCOMPETITION AGREEMENT (this “Agreement”) is entered into as of April 24, 2006 by and
between U-STORE-IT TRUST, a Maryland real estate investment trust (the “Company”), and Xxxx
Xxxxxxxx (the “Executive”).
WHEREAS, concurrently with the execution and delivery of this Agreement, the Company and the
Executive are entering into an Employment Agreement dated as of the date hereof, pursuant to which,
among other things, the Company has agreed to employ the Executive, and the Executive has agreed to
be employed by the Company, in accordance with the terms thereof (the “Employment Agreement”); and
WHEREAS, the Company and the Executive agree that the Executive will not engage in competition
with the Company and will refrain from taking certain other actions pursuant to the terms and
conditions hereof in an effort to protect the Company’s legitimate business interests and goodwill
and for other business purposes.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:
1. Noncompetition. The Executive agrees with the Company that for the longer of (i)
the five-year period beginning on the date of this Agreement or (ii) the period during which the
Executive is employed by, or serving as an officer or trustee or director of, the Company,
U-Store-It, L.P., a Delaware limited partnership of which the Company is the general partner, or
any of their direct or indirect subsidiaries (collectively, the “REIT”), and for one year
thereafter (the “Restricted Period”), the Executive will not, (a) directly or indirectly, engage in
any business involving self-storage facility development, construction, acquisition or operation
(“Self Storage Business”), whether such business is conducted by the Executive individually or as a
principal, partner, member, stockholder, director, trustee, officer, employee or independent
contractor of any Person (as defined below) or (b) own any interests in any self-storage
facilities, in each case in the United States of America; provided, however, that
this Section 1 shall not be deemed to prohibit the direct or indirect ownership by the Executive of
up to five percent of the outstanding equity interests of any public company, or the ownership of
up to a twenty percent beneficial interest in Xxxxxxxx Property Group
LLC and its related companies
and partnerships (the “Xxxxxxxx Group”) for no longer than two years from the date of this
Agreement, so long as the Executive (x) is not involved in the day-to-day management or operation
of facilities owned by the Xxxxxxxx Group, and (y) does not expand his interest, ownership or
activity in the Self Storage Business, directly or indirectly, beyond the eleven self storage
facilities in which the Xxxxxxxx Group currently owns an interest. For purposes of this Agreement,
“Person” means any individual, firm, corporation, partnership, company, limited liability company,
trust, joint venture, association or other entity.
2. Nonsolicitation. The Executive agrees with the Company that for the longer of (i)
the five-year period beginning on the date of this Agreement or (ii) the period during which the
Executive is employed by, or serving as an officer or trustee or director of, the REIT, and for two
years thereafter, such Executive will not (a) directly or indirectly solicit, induce or encourage
any employee or independent contractor to terminate their employment with the REIT or to cease
rendering services to the REIT, and the Executive shall not initiate discussions with any such
Person for any such purpose or authorize or knowingly cooperate with the taking of any such actions
by any other Person, or (b) hire (on behalf of the Executive or any other person or entity) any
employee or independent contractor who has left the employment or other service of the REIT (or any
predecessor thereof) within one year of the termination of such employee’s or independent
contractor’s employment or other service with the REIT.
3. Reasonable and Necessary Restrictions. The Executive acknowledges that the
restrictions, prohibitions and other provisions hereof, including, without limitation, the
Restricted Period set forth in Section 2, are reasonable, fair and equitable in terms of duration,
scope and geographic area, are necessary to protect the legitimate business interests of the REIT,
and are a material inducement to the Company to enter into this Agreement and the Employment
Agreement.
4. Specific Performance. The Executive acknowledges that the obligations undertaken
by such Executive pursuant to this Agreement are unique and that the Company likely will have no
adequate remedy at law if the Executive shall fail to perform any of such Executive’s obligations
hereunder, and the Executive therefore
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confirms that the Company’s right to specific performance of the terms of this Agreement is
essential to protect the rights and interests of the Company. Accordingly, in addition to any
other remedies that the Company may have at law or in equity, the Company shall have the right to
have all obligations, covenants, agreements and other provisions of this Agreement specifically
performed by the Executive, and the Company shall have the right to obtain preliminary and
permanent injunctive relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement by the Executive. Further, the Executive agrees to indemnify and hold
harmless the Company from and against any reasonable costs and expenses incurred by the Company as
a result of any breach of this Agreement by such Executive, and in enforcing and preserving the
Company’s rights under this Agreement, including, without limitation, the Company’s reasonable
attorneys’ fees. The Executive hereby acknowledges and agrees that the Company shall not be
required to post bond as a condition to obtaining or exercising such remedies, and the Executive
hereby waives any such requirement or condition. If the Executive is the prevailing party in any
action in which the Company seeks to enforce its rights under this Agreement, the Company agrees to
indemnify and hold harmless the Executive from and against any reasonable costs and expenses
incurred by the Executive as a result of such action, including, without limitation, the
Executive’s reasonable attorneys’ fees.
5. Miscellaneous Provisions.
5.1 Assignment; Binding Effect. This Agreement may not be assigned by the Executive,
but may be assigned by the Company to any successor to its business and will inure to the benefit
of and be binding upon any such successor. Subject to the foregoing provisions restricting
assignment, all covenants and agreements in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors, assigns, heirs, and
personal representatives.
5.2 Entire Agreement. This Agreement, together with the Employment Agreement,
constitutes the entire agreement between the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior oral or written agreements,
commitments and understandings among the parties with respect to the matters set forth herein.
This Section 5.2 shall not be used to limit or restrict the rights or remedies, whether express or
implied, of any noncompetition or nonsolicitation policies of the REIT applicable to the Executive.
5.3 Amendment. Except as otherwise expressly provided in this Agreement, no
amendment, modification or discharge of this Agreement shall be valid or binding unless set forth
in writing and duly executed by each of the parties hereto.
5.4 Waivers. No waiver by a party hereto shall be effective unless made in a written
instrument duly executed by the party against whom such waiver is sought to be enforced, and only
to the extent set forth in such instrument. Neither the waiver by either of the parties hereto of
a breach or a default under any of the provisions of this Agreement, nor the failure of either of
the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder shall thereafter be construed as a waiver of any
subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or
privileges hereunder.
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5.5 Severability. If fulfillment of any provision of this Agreement, at the time such
fulfillment shall be due, shall transcend the limit of validity prescribed by law, then the
obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or
provision contained in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective, as though not
herein contained, and the remainder of this Agreement shall remain operative and in full force and
effect. Notwithstanding the foregoing, in the event that the restrictions against engaging in
competitive activity contained in this Agreement shall be determined by any court of competent
jurisdiction to be unenforceable by reason of their extending for too great a period of time or
over too great a geographical area or by reason of their being too extensive or unreasonable in any
other respect, the Agreement shall be interpreted to extend only over the maximum period of time
for which it may be enforceable and over the maximum geographical area as to which it may be
enforceable and to the maximum extent in all other respects as to which it may be enforceable, all
as determined by such court in such action and the court may limit the application of any other
provision or covenant, or modify any such term, provision or covenant and proceed to enforce this
Agreement as so limited or modified. To the extent necessary, the parties shall revise the
Agreement and enter into an appropriate amendment to the extent necessary to implement any of the
foregoing.
5.6 Governing Law; Jurisdiction. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in
accordance with the laws of the State of Ohio, but not including the choice-of-law rules thereof.
5.7 Headings. Section and subsection headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for
any purpose, and shall not in any way define or affect the meaning, construction or scope of any of
the provisions hereof.
5.8 Executive’s Acknowledgement. The Executive acknowledges (i) that he has had the
opportunity to consult with independent counsel of his own choice concerning this Agreement, and
(ii) that he has read and understands this Agreement, is fully aware of its legal effect, and has
entered into it freely based on his own judgment.
5.9 Notices. All notices, requests, demands, and other communications hereunder shall
be in writing and shall be deemed to have been delivered (i) when physically received by personal
delivery (which shall include the confirmed receipt of a telecopied facsimile transmission), or
(ii) three business days after being deposited in the United States certified or registered mail,
return receipt requested, postage prepaid or (iii) one business day after being deposited with a
nationally known commercial courier service providing next day delivery service (such as Federal
Express), to the following addresses:
(i) | if to the Executive, to the address set forth in the records of the Company; and |
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(ii) | if to the Company, | ||
U-Store-It Trust 0000 Xxxxx Xxxx Xxxxx 000 Xxxxxxxxxx Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxxx Facsimile No.: (000) 000-0000 |
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with a copy to: | |||
U-Store-It Trust 0000 Xxxxx Xxxx Xxxxx 000 Xxxxxxxxxx Xxxxxxx, XX 00000 Attn: Xxxxxxxx X. Xxxxxxx Facsimile No.: (000) 000-0000 |
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5.10 Execution in Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary that the signature
of or on behalf of each party appears on each counterpart, but it shall be sufficient that the
signature of or on behalf of each party appears on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this Agreement, or
caused this Agreement to be duly executed on its behalf, as of the date first set forth above.
THE EXECUTIVE: | ||||||
/s/ Xxxx Xxxxxxxx | ||||||
Xxxx Xxxxxxxx | ||||||
THE COMPANY: | ||||||
U-STORE-IT TRUST | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||||
Name: Xxxxxx X. Xxxxxxx | ||||||
Title: Chairman of the Board of Trustees |
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