True91672894DATED June 2000
(1) SHURGARD STORAGE CENTERS INC.
(2) DAVID K. GRANT
(3) SSC BENELUX & CO S.C.A. (a Partnership)
_____________________________
SERVICE AGREEMENT
_____________________________
TITMUSS SAINER DECHERT
2 Serjeants' Inn,
London EC4Y 1LT
Draft: 7
Ref: CE821/057824
Date: 27/06/00
WP No: 1672894
THIS AGREEMENT is made on [ ] 2000
BETWEEN:-
(1) SHURGARD STORAGE CENTERS INC. a company incorporated
in the State of Washington, USA whose registered
office is at 1155 Valley Street, Suite 400, Seattle,
Washington 98109 ("the Company");
(2) DAVID K. GRANT of 49 Rue du Printemps, 1380 Ohain,
Belgium ("the Executive"); and
(3) SSC BENELUX & CO S.C.A. (a Partnership) registered
with the Register of Commerce of Brussels, Belgium
under no. 587.679 whose registered office is at Quai
Du Commerce 48, 1000 Brussels, Belgium ("Shurgard
Europe").
WHEREAS:-
(1) The Executive has been employed by the Company since
1985 working out of the Company's headquarters in
Seattle, USA. In 1996 the Executive accepted a
transfer to Brussels where he is currently employed
by the Company in the role of President of Shurgard
Europe. All costs associated with the Executive's
employment are paid for directly by the Company
which costs are reimbursed to the Company by
Shurgard Europe.
(2) The Executive and the Company originally agreed that
the Executive's transfer to Brussels would terminate
at the end of 2000 at which point the Executive
would return to work for the Company at its
headquarters in Seattle, USA. Shurgard Europe
(through its Board of Managers) has asked the
Company and the Executive to agree that the
Executive's employment in Europe shall be extended
for a further period.
(3) The Company and the Executive have agreed to such an
extension until the 30 June 2003 upon the terms and conditions
of this agreement. After the completion of the extension it
is the intention of the Company and the Executive that the
Executive should relocate to the Company's headquarters in
Seattle, USA.
(4) The Executive is concerned about the implications for his
employability in the USA of a further lengthy period of work
in Europe and the Company acknowledges this. In recognition
of this and in recognition of the Executive's long and valued
service to the Company the parties have agreed that the
Executive shall be entitled to the termination payment
referred to in clause 2.1 hereof in the event that he is not
offered suitable employment by the Company in the USA on the
expiration of this agreement on the 30th June 2003 (or the
Termination Date if earlier).
IT IS AGREED THAT:-
1. DEFINITIONS
1.1 In this agreement and the schedules to it the
following expressions shall, unless the context
otherwise requires or otherwise as expressly
provided, have the following meanings:-
1.1.1 "associated company" any company (or subsidiary
thereof as defined in clause 1.1.6) in which any
company in the Group is or shall be the holder of
not less than 10% of the equity share capital (as
defined by Section 744 Companies Act 1985) or to
which the Company or any company in the Group
renders or shall render substantial managerial,
administrative or technical services;
1.1.2 "basic salary" the annual salary payable to the
Executive pursuant to clause 4.1;
1.1.3 "Board" the Board of Managers of Shurgard Europe (or
any director or committee of directors duly
authorised by the Board of Managers of Shurgard
Europe for the due purposes of this agreement);
1.1.4 "Commencement Date" 1 July 2000;
1.1.5 "Confidential Information":-
1.1.5.1 any trade secrets, customer lists, trading details
or other information of a confidential nature
relating to the goodwill and secrets of any company
in the Group (including, without limitation, details
of the activities, businesses, expansion plans,
business strategy, marketing plans, sales forecasts,
forward planning programmes, investments,
prospective investments (and the respective terms of
such investments), research activities, inventions,
ideas, computer programs, secret processes, designs,
financial information, results and forecasts of any
such company and details of its employees and
contractors and of the requirements, terms of trade
and identity of its suppliers and customers); and
1.1.5.2 any other information specifically designated by any
company in the Group as confidential; and
1.1.5.3 any information in relation to which any company in
the Group owes a duty of confidentiality to any
third party;
1.1.6 "directly or indirectly" (without prejudice to the
generality of the expression) whether as principal
or agent (either alone or jointly or in partnership
with any other person firm company) or as a
shareholder or holder of loan capital in any other
company or being concerned or interested in any
other person firm or company and whether as a
director partner consultant employee or otherwise;
1.1.7 "Group" together Shurgard Europe, the Company, any
holding company of the Company and any subsidiary
and subsidiary undertakings of the Company and of
such holding company within the meanings of sections
258, 736 and 736A of the Companies Act 1985 and any
associated company;
1.1.8 "holiday year" a calendar year commencing 1st
January;
1.1.9 "Termination Date" the date of the termination of
this agreement; and
1.1.10 "working days" weekdays but excluding Saturdays,
Sundays, bank or other public holidays.
1.1.11 "Partnership Agreement" an agreement dated the 8th
October 1999 between the Company, Grana International SA,
Fremont SE Ventures, AIG Self Storage, Deutsche Bank
Aktiengesellschaft, London Credit Suisse First Boston and
others.
1.1.12 "Suitable Employment" an offer of employment, made
in good faith, which:
(i) is located at a place situated not more than 25
miles from the metropolitan statistical area of
Seattle, Washington, USA; and
(ii) has duties and responsibilities and a status which are
comparable to and consistent with the duties, responsibilities
and status enjoyed by the Executive as at the Termination
Date; and
(iii)has a basic salary which is not less than the basic
salary; and
(iv) has benefits which are comparable to and in any event no
less favourable than the benefits received by the Executive
under clause 1 and clause 2 of the second schedule to this
agreement; and
(v) provides the Executive with an opportunity to earn a
bonus comparable to the Bonus; and
(vi) has terms and conditions which are otherwise generally no
less favourable to the Executive than the terms hereof
(excepting clause 2.1 and the Third Schedule which are
specific to this agreement); and
(vii)is of a kind which is suitable in relation to the
Employee's experience with the Company and appropriate for him
to do in the circumstances and
(viii)is for a term of not less than 30 months which shall
not be terminable by the Company on shorter notice save for
gross misconduct or if the Company elects to terminate and
make a payment in lieu of notice to the Executive of a sum
equal to the basic salary which the Executive would have
earned in the period from the date of such termination until
the date on which the term of the agreement was due to expire
together with a further sum equivalent to the value of the
benefits to which the Executive would have been entitled
during such period, to the extent that the Executive does not
in fact receive those benefits for the whole or part of such
period; and
(ix) has a schedule which is identical to the fourth schedule
hereof.
2. TERM
2.1.1 The Company shall employ the Executive and the
Executive shall serve the Company as from the Commencement
Date, subject to the terms and conditions of this agreement
until the 30 June 2003, whereupon the Executive shall be
offered Suitable Employment and relocated to the USA. Should
the Company not offer the Executive Suitable Employment with
the Company on the expiration of this agreement on the 30 June
2003 (or the Termination Date if earlier) the Company shall
pay to the Executive a termination payment in the amount and
manner set out in Schedule 3(a) hereof together with whatever
payment shall be due to the Executive under clause 2.3 hereof.
If the Company offers the Executive Suitable Employment with
the Company on the expiration of this agreement on 30 June
2003 (or the Termination Date if earlier) but the Executive
will not be reporting to Chuck Barbo in his new position, the
Executive may reject this offer of Suitable Employment in
which event the Company shall pay to the Executive a
termination payment in the amount and manner set out in
Schedule 3(b) hereof together with whatever payment shall be
due to the Executive under clause 2.3 hereof. It is
acknowledged by the Company that if the Executive's employment
shall be terminated by the Company prior to 30 June 2003, it
may only do so lawfully in accordance with clause 2.3 below or
as otherwise provided in this agreement. Any payment due to
be made under this clause 2.1 shall be subject to the
Executive signing such documentation as the Company shall
reasonably require to confirm that the Executive accepts the
payment (together with whatever payment may be due to the
Executive under clause 2.3 hereof) in full and final
settlement of any claims he may have against the Company or
Shurgard Europe arising out of the termination of his
employment (excepting only any claim to enforce the terms of
this agreement or in respect of accrued pension rights or
personal injury).
2.1.2 For the avoidance of doubt, if the Executive elects
to terminate his employment (which he may do lawfully by
giving one month's written notice) prior to 30 June 2003 -
other than in circumstances where he is entitled to consider
himself as having been constructively dismissed - no payment
shall be due to him under this agreement.
2.2 The Executive's period of continuous employment with
the Company began on 11 November 1985.
2.3 Subject to clause 2.1 and without prejudice to the
continued applicability of Schedule 3 hereof the
Company reserves the right in its absolute
discretion at any time lawfully to terminate this
agreement with immediate effect by giving notice of
such termination and by paying to the Executive, in
lieu of salary and other benefits pursuant to this
agreement, an amount equal to the basic salary which
the Executive would have earned during the period
from the date of such termination until the 30 June
2003 together with a further sum equivalent to the
value of benefits (including the Executive's Bonus
payable under clause 4.2 hereof but only in respect
of the calendar year in which the Termination Date
occurs calculated pro rata) to which the Executive
would have been entitled during such period to the
extent that the Executive does not in fact receive
those benefits for the whole or part of such period.
The Company shall have the option to elect to
continue to provide such benefits for the whole or
part of such period or make a payment in respect of
the benefits as provided under this clause 2.3. Any
payment to the Executive pursuant to this clause 2.3
will be subject to tax and other statutory
deductions as required from time to time. In
addition, any payment to the Executive pursuant to
this clause 2.3 shall serve to offset the Company's
liability to the Executive (if any) arising under
clause 2.1 and the third schedule hereof on a dollar
for dollar basis.
3. JOB TITLE AND DUTIES
3.1 The Executive shall be employed as President of
Shurgard Europe and shall report to Charles K.
Barbo, Chairman of the Board or such other person as
the Board may nominate from time to time.
3.2 The Executive shall also continue to serve as an
officer of the Company under the title of Executive
Vice-President.
3.3 The Executive shall (in addition to observing his
implied duty of fidelity and his duties as a
director at law):-
3.3.1 use all proper means to the best of his ability to
maintain and improve the businesses of the Company,
Shurgard Europe and the companies in the Group and
further their respective reputations and interests;
3.3.2 faithfully, efficiently and diligently perform those
duties and exercise such powers as are consistent
with them which shall from time to time be assigned
to or vested in him;
3.3.3 comply with all lawful and reasonable directions,
restrictions, rules and regulations from time to
time laid down or adopted by the Company, Shurgard
Europe and/or the Board;
3.3.4 at all times promptly give to the Board (in writing,
if so requested) such information, advice and
explanations as it may require in connection with
matters relating to his employment under this
agreement or with the business of the Company or
Shurgard Europe or any company in the Group; and
3.3.5 immediately disclose to the Board (in writing if so
requested) all facts and matters which may or do
give rise to a conflict between the Executive's
personal interests and those of the Company or
Shurgard Europe or the Group.3.4 The Executive
shall devote himself exclusively to the performance
of his duties during normal office hours (which are
9.00 am to 6.00 pm with a lunch break of one hour)
and at all other times which may be necessary for
the proper performance of his duties except in the
case of illness or accident.
3.5 The Executive's place of employment shall be at 14
St Mary's Road, Long Ditton, Surbiton, Surrey KT6
5EY or any other place of business within the
Greater London area from where the Company or
Shurgard Europe may operate from time to time. The
Executive shall not be required to be permanently
employed elsewhere without his consent. The
Executive shall undertake such travel both within
and outside the United Kingdom as may be necessary
for the proper performance of his duties.
3.6 The Executive shall under no circumstances
whatsoever either directly or indirectly receive or
accept for his own benefit any commission, rebate,
discount, gratuity or profit from any person,
company or firm having business transactions with
any company in the Group unless previously agreed
with the Board.
3.7 The Company shall pay all reasonable relocation
expenses necessarily incurred by the Executive in
changing his place of employment from its current
location at Quai du Commerce, 48 Handelskaai,
Brussels B-1000, Belgium to 14 St Mary's Road, Long
Ditton, Surbiton, Surrey KT6 5EY or such other place
within the Greater London area as the Company may
direct. For the avoidance of doubt, such relocation
expenses shall include but shall not be limited to
all reasonable removal charges, storage charges,
interim housing costs, relocation and property
search costs, estate agent's charges, legal fees and
travel costs.
3.8 In addition, on the termination of this agreement,
howsoever caused, the Company shall pay all
reasonable relocation expenses necessarily incurred
by the Executive in relocating himself and his
family to the USA. For the avoidance of doubt, such
relocation expenses shall include but shall not be
limited to all reasonable removal charges, storage
charges, interim housing costs, relocation and
property search costs, estate agent's charges, legal
fees and travel costs.
3.9 The Company shall continue to pay all and any
ongoing storage costs incurred by the Executive in
the USA arising from his transfer to Europe in 1996
until the 30th June 2003 or the Termination Date,
whichever be the earlier.
4. REMUNERATION
4.1 The basic salary (which shall accrue from day to
day) shall be US$300,000 per annum payable through
the Company's standard US payroll system subject to
review by the Board on an annual basis. The
Executive shall not be entitled as of right to a
salary increase but the basic salary may not be
reduced on such review. The basic salary shall be
deemed to be inclusive of a cost of living
adjustment for living in London of $50,000 per annum
and any director's fees and other emoluments which
the Executive may receive or be entitled to receive
from the Group.
4.2 The Executive shall be entitled to be paid an annual
bonus ("the Bonus"). The amount of the Bonus shall
be calculated by reference to the Executive's
performance as measured against performance targets
for Shurgard Europe which shall be agreed between
the Executive and the Board from time to time.
Should the agreed performance targets be met the
Bonus shall be 33% of the basic salary. If the
performance targets are exceeded or not met the
Bonus shall be adjusted according to a formula
agreed by the parties from time to time. The Bonus
for 2003 shall be calculated pro rata. The Bonus
shall be paid as soon as is reasonably practicable
following the end of the calendar year and in any
event no later than the 30 March in the year
immediately following the bonus year. The first
full bonus year for the purposes of this clause
shall be 2001. The Bonus for 2003 shall be paid no
later than the 30 September 2003. In the period 1
July to the 31 December 2000 the Executive shall
continue to be entitled to participate in the bonus
programme applicable to him immediately prior to
this agreement which has a target rate of 10% of
basic salary.
4.3 It is the intention of Shurgard Europe to introduce a
share option/stock ownership scheme (the "Long Term
Compensation Plan") which will apply in the period commencing
on the 1 January 2002 for the benefit of its senior
executives, including the Executive. If and when Shurgard
Europe implements such a scheme (or schemes) the Executive
shall be entitled to participate in it at a level commensurate
with his status and on terms no less favourable than for
comparable executives subject always to the rules from time to
time of any such scheme. The Company and the Board
contemplate that provided certain agreed business objectives
are met the Long Term Compensation Plan shall have the
potential to generate an additional income (through increased
stock appreciation) for the Executive of $400,000 per annum
4.4 The Company shall make such deductions for PAYE and
National Insurance Contributions as are required by UK law.
The Executive will also remain subject to the USA Social
Security System. Both the Company and the Executive will make
the standard employer and employee contributions thereunder.
4.5 The Executive shall file personal income tax returns
and pay related taxes in both the USA and the United
Kingdom. The Company will retain and pay for an
accounting firm of the Executive's choice (currently
Deloitte & Touche) to prepare the Executive's tax
returns and generally assist the Executive with
related tax planning and "tax equalisation"
calculations. The Company will pay to the Executive
a sum in respect of tax equalisation costs according
to the tax equalisation calculation/method currently
agreed and operated by the Executive and the
Company.
5. EXPENSES
5.1 The Company shall repay to the Executive all
expenses reasonably and properly incurred by the
Executive in the performance of his duties under
this agreement in any month and upon appropriate
evidence of such expenditure being provided to the
Company.
5.2 The Executive undertakes to observe the Company's
policy on expenses.
5.3 For the avoidance of doubt, in the performance of
his duties hereunder it shall be proper for the
Executive to use first class rail travel and
business class air travel. The Company shall also
pay all telephone call and rental expenses of the
Executive in respect of his car and mobile telephone
subject to production to the Company, if required,
of appropriate evidence of such expenditure.
5.4 The Executive shall be provided with a credit card
by Shurgard Europe but it must only be used for
expenses incurred by the Executive in performing his
duties under this agreement. To the extent that
such charges are partly personal in nature, the
Executive shall promptly reimburse the Company via
his expenses reporting procedure.
6. HOLIDAYS
6.1 The Executive shall (inclusive of his statutory
entitlement under the Working Time Regulations 1998)
be entitled to paid holidays of 20 working days per
calendar year accruing pro rata over the holiday
year in addition to all usual bank and other public
holidays.
6.2 Upon termination of the Executive's employment for
any reason other than gross misconduct the Executive
shall be entitled to pay in lieu of any accrued but
untaken holiday entitlement. Upon termination of the
Executive's employment for any reason, the Executive
shall be required to make a payment to the Company
in respect of holiday taken in excess of the accrued
holiday entitlement at the rate described above in
this clause. Any such sum due to the Company may be
deducted from any remuneration or other sums
otherwise payable by the Company to the Executive.
7. ILLNESS OR ACCIDENT
7.1 The Executive shall be entitled to receive the basic
salary and other contractual benefits to which he is
entitled under this agreement if prevented from
performing his duties through illness, accident or
other such incapacity only for a period not
exceeding 6 consecutive months or an aggregate of
120 working days (whether consecutive or not) in any
12 consecutive calendar months. The Executive's
entitlement to basic salary and other benefits under
this agreement, save for any payment to be made
pursuant under any permanent health insurance scheme
in which the Executive is entitled to participate
pursuant to the second schedule, shall cease upon
the expiry of the period referred to in this clause.
7.2 The basic salary payable by the Company to the
Executive in circumstances where clause 7.1 applies
shall abate by the amount of sickness or disability
benefit which the Executive receives under any
scheme maintained by the Group or under any relevant
legislation.
7.3 The Executive shall notify the Company immediately
of any illness, accident or other incapacity in such
form and thereafter at such intervals as the Company
may reasonably require.
7.4 Subject always to the terms of clause 20.5 hereof if
the Executive shall be prevented from performing his
duties as a result of illness, accident or
incapacity for any period in excess of 6 consecutive
months or an aggregate of 120 working days (whether
consecutive or not) in any period of 12 consecutive
months, the Company may, subject to clause 2.1
hereof, terminate the Executive's employment by
giving the statutory minimum period of notice or 1
months' notice in writing (whichever shall be the
greater), in which case the Executive shall not be
entitled to any further compensation under this
agreement, except for relocation expenses as
provided for in clause 3.8. Any payment made to the
Executive under clause 2.1 and the third schedule
hereof following a termination pursuant to this
clause 7.4 shall abate by the amount of any related
disability benefit which the Executive receives
under the disability insurance scheme maintained
pursuant to clause 1 of the second schedule hereof
in the t period of eighteen months .
7.5 In circumstances where the Executive shall have been
prevented from performing his duties for the periods
referred to in clause 7.4, the Company may in its
absolute discretion, if the Executive is a director
of the Company or any company in the Group, require
the Executive to resign any such directorship (the
imposition by the Company and the compliance by the
Executive with which requirement shall not
constitute a breach of contract on the part of the
Company) and, if the appropriate resignation shall
not be signed and delivered by the Executive to the
Board within seven days of such request, the
Executive agrees that the Board may appoint any
other director of the Company to sign such notice of
resignation for and on behalf of the Executive and
in his name for such purpose.
8. BENEFITS
8.1 The Executive shall be entitled to the benefits
provided by the Company and/or Shurgard Europe as
set out in the second schedule.
8.2 The benefits set out in the second schedule are
available to the Executive subject to the following:-
8.2.1 the Executive shall only be eligible to receive the
benefits subject to and in accordance with the rules
of the relevant scheme or such other rules and
regulations as may be laid down by the Company
and/or Shurgard Europe from time to time;
8.2.2 the Company and/or Shurgard Europe may amend the
terms or rules of any benefit at any time provided
any such amendment is of general application.
9. AUTHORITY
The Executive shall not without the prior consent of
the Board:-
9.1 act in contravention of the terms of the Partnership
Agreement insofar as they relate to him in his
capacity as President Shurgard Europe; or
9.2 incur on behalf of the Company or any company in the
Group any capital expenditure in excess of such sum
as may be authorised from time to time and notified
to the Executive; or
9.3 enter into on behalf of the Company or any company
in the Group any commitment, contract or arrangement
otherwise than in the normal course of business or
outside the scope of his normal duties or of an
unusual or onerous or long term nature;
10. CONFIDENTIALITY
10.1 The Executive shall not, whether during or after the
termination of his employment, except in the proper
course of his duties, use or divulge and shall use
his best endeavours to prevent the use, publication
or disclosure to any person, firm or company of any
Confidential Information which has or may come to
his knowledge in the course of his employment save
that this obligation shall not extend to any matters
which are or shall be in the public domain otherwise
than due to the default of the Executive.
10.2 Any Confidential Information as shall be made or
received by the Executive during the continuance of
this agreement shall be the property of the Company
and all such property and copies thereof shall be
surrendered by the Executive to the Company
immediately upon the termination of this agreement
(howsoever occasioned) in accordance with clause 16
or at the request of the Board at any time during
the course of his employment.
11. OUTSIDE INTERESTS
The Executive shall disclose promptly in writing to
the Board all his interests (whether by way of
shareholdings, directorships or otherwise) in any
businesses other than those of the Company or Group.
The Executive shall not, when employed by the
Company, be directly or indirectly concerned or
interested in any trade or occupation or business
other than the businesses of the Company and the
Group except with written permission pursuant to a
resolution of the Board (such permission not to be
unreasonably withheld or delayed) save that the
Executive shall be permitted to hold, by way of bona
fide investment only, shares or securities:-
11.1 in a company whose shares are not listed, dealt in
or traded on a recognised stock exchange provided
that such company has no business relationship with
the Company or any company in the Group and has not
in the past had any such relationship and its
business does not in the reasonable opinion of the
Board compete with any business for the time being
carried on by the Company or any company in the
Group and the Executive does not participate in the
management of such company; and
11.2 in a company listed, dealt in or traded on a
recognised stock exchange not exceeding 5% in
nominal value of the securities of that class.
In this clause 11 the expression "occupation" shall
include membership of Parliament or of a local
authority, council or any other public or private
work (whether for profit or otherwise).
12. DISCIPLINE AND GRIEVANCES
12.1 There are no disciplinary rules as at the date of
this agreement applicable to the Executive's
employment hereunder nor any specific provisions for
dealing with any grievance.
12.2 In order to investigate a complaint or allegation
against the Executive of misconduct or some other
serious issue relating to his employment and to
allow the Company to carry out whatever
investigations it deems appropriate in relation
thereto, the Company may for whatever period it
considers necessary but only on reasonable grounds
suspend the Executive on full pay and other
contractual benefits and require the Executive:-
12.2.1 not to enter any premises of the Company or any
company in the Group; and
12.2.2 to abstain from contacting any customers, clients,
employees or suppliers of the Company or any company
in the Group.
13. RESIGNATION OF DIRECTORSHIPS
13.1 If required by the Board to act as a director of any
company in the Group in accordance with clause 3.2
or if appointed by agreement with the Board as a
director of any corporation in which the Group may
have an interest, the Executive shall resign from
any such directorship as the Board may from time to
time require. A request for any such resignation
shall not constitute termination of this agreement
or constructive dismissal of the Executive.
14. TERMINATION BY DEFAULT
14.1 Notwithstanding any other provision of this
agreement, the Company may at any time in writing
terminate the Executive's employment with immediate
effect and without notice or payment in lieu of
notice and without prejudice to any rights or claims
which it may have against him if at any time the
Executive shall:-
14.1.1 be guilty of gross misconduct ; or
14.1.2 commit a serious breach of this agreement which, if
capable of remedy, is not remedied within a
reasonable period after a request from the Company
or the Board to the Executive to do so; or
14.1.3 after warning commit any repeated or continued
material breach of his obligations under this
agreement; or
14.1.4 become of unsound mind, be or become a patient under
any mental health legislation or become bankrupt; or
14.1.5 be disqualified from holding office in Shurgard
Europe or any company in the Group by virtue of any
legislation.
14.2 The Company's right immediately to terminate the
Executive's employment under this clause 14 is
without prejudice to any rights it may have to do so
derived from common law.
15. TERMINATION BY REORGANISATION OR RECONSTRUCTION
If during term of this agreement the Executive shall
have been offered in writing but shall unreasonably
have refused or unreasonably failed to agree to the
transfer of this agreement by way of novation to a
company which as a result of a reorganisation
amalgamation or reconstruction has acquired or
agreed to acquire the whole or substantially the
whole of the undertaking of the Company the
Executive shall have no claim against the Company in
respect of the termination of his employment
hereunder by reason of the subsequent voluntary
winding- up of the Company or of the disclaimer or
termination of this agreement by the Company within
3 months after such unreasonable refusal or
unreasonable failure to agree.
16. EXECUTIVE'S OBLIGATIONS UPON TERMINATION
On the termination of the Executive's employment for
any reason:-
16.1 if the Executive shall be a director of any company
in the Group the Board may give him notice in
writing requesting him to and he shall forthwith
resign any such directorship and if the appropriate
resignation shall not be signed and delivered by the
Executive to the Board within seven days after such
request the Executive agrees that the Board may
appoint any director of the Company to sign such
notice of resignation for and on behalf of the
Executive and in his name for such purpose; and
16.2 the Executive shall forthwith deliver to the Company
all records documents accounts letters and papers of
every description within his possession or control
relating to the affairs and business of the Company
or any company in the Group and any other property
belonging to the Company or any company in the Group
provided that the Executive shall not be obliged to
return any papers which he has received in the
capacity of shareholder of the Company or any
company in the Group.
17. SURVIVAL OF COVENANTS ON TERMINATION
17.1 The Executive undertakes to observe the provisions
of the first schedule to this agreement.
17.2 The Executive and the Company undertake to observe
the provisions of the fourth schedule to this
agreement.
17.3 Notwithstanding the termination of this agreement,
save as otherwise provided herein, it shall remain
in full force and effect to the extent that the
obligations of the Executive which are expressed to
operate thereafter or are of a continuing nature are
concerned and may be enforced against the Executive
accordingly.
18. SHURGARD EUROPE OBLIGATIONS
Shurgard Europe agrees that it is a party to and
bound by the terms of this agreement. Shurgard
Europe agrees that it shall be liable to reimburse
the Company, or pay directly to the Executive as a
appropriate, all costs and expenses incurred by the
Company under this agreement (except for those costs
and expenses of the Company payable to the Executive
in accordance with the third schedule and those
costs and expenses which it incurs under clause 3.8
hereof).
19. NOTICES
Any notice to be given hereunder shall be in
writing.
20. GENERAL
20.1 This agreement shall be governed and construed in all
respects in accordance with the laws of England and Wales and
the parties agree to submit to the non-exclusive jurisdiction
of the Courts of England and Wales.
20.2 For the purposes of this agreement, and notwithstanding
any of the other provisions of this agreement, the Company
will be entitled to carry out all or any of its obligations
under this agreement, whether as to payment of remuneration or
otherwise, through any company or companies in the Group as
the Board may from time to time expressly determine and the
Company may enforce the provisions of this agreement either
directly as a party to it or as an agent for and on behalf of
any such company in the Group.
20.3 The Executive hereby agrees that the provisions of
the Working Time Regulations 1998 concerning the
limit on permissible average weekly working hours
shall not apply to him. Whilst this clause is
intended to remain valid indefinitely, it shall
remain subject to the statutory right to terminate
its application by three months notice.
20.4 The Senior Management Employment Agreement between
the Company and the Executive dated the 30 October
1999, ("SMEA"), shall terminate on the Commencement
Date and shall be of no further force and effect.
20.5 Notwithstanding anything to the contrary in this
agreement and without prejudice to any other sections of this
agreement if the Executive's employment with the Company
terminates for whatever reason and whether lawfully or not
prior to 31 December 2005 the parties agree that the Executive
shall (commencing on a date no later than the Termination
Date), render consultancy services to the Company as an
independent consultant pursuant to the terms and conditions
set out in the fourth schedule hereof.
21. VARIATION
This agreement:-
21.1 contains the whole of the terms agreed in respect of
the Executive's employment as from the Commencement
Date;
21.2 is in substitution for any other previous agreement
or arrangement in respect of his employment by any
company in the Group; and
21.3 shall only be capable of being varied by a
supplemental agreement or memorandum in writing
signed by or on behalf of the parties hereto.
EXECUTED AS A DEED by the COMPANY )
in the presence of:- )
/s/ Charles K. Barbo
Its Director
Director/Secretary
SIGNED AS A DEED and DELIVERED by )
the EXECUTIVE in the presence of:- )
/s/ David K. Grant
EXECUTED AS A DEED by SSC )
BENELUX & CO S.C.A. in the presence of:- )
/s/ Patrick Metdepenninghen
Its Director
Director/Secretary
THE FIRST SCHEDULE
1. DEFINITIONS
In this schedule unless the context otherwise
requires the following expressions shall have the
following meanings:-
1.1 "the Business" the business of the Company and
Shurgard Europe or any part thereof and any other
business or part thereof carried on by any company
in the Group as at the Termination Date and/or
during the Protected Period and to which the
Executive has rendered services or about which he
has acquired Confidential Information or by which he
has been engaged at any time during the Protected
Period;
1.2 "Protected Period" the period of 12 months prior to
the Termination Date;
1.3 "Restricted Territory" any standard metropolitan
statistical area in which the relevant company in
the Group conducts the Business or part thereof and
has 10 or more self-storage facilities;
1.4 "the Restriction Period" the period of 12 months
following the Termination Date;
1.5 "Senior Executive" a person who at any time whilst
the Executive was employed by the Company or engaged
by any company in the Group:-
1.5.1 is engaged or employed (other than in a clerical,
secretarial or administrative capacity) as an
employee director or consultant of that company; and
1.5.2 is or was engaged in a capacity in which he obtained
Confidential Information; and
1.5.3 is so engaged at any time during the Protected
Period.
2. The parties to this agreement agree and acknowledge
that it is reasonable and necessary for the
protection of the Confidential Information,
goodwill, stable workforce, trade secrets and trade
connections of the Business that the Executive
should be restrained in the terms of the covenants
set out in this schedule from making available or
using for the benefit of himself or a competitor or
potential competitor Confidential Information or
trade connections which he has obtained and is
likely to obtain in the course of his employment as
an Executive of the Company.
3. The Executive accordingly covenants with the Company
and Shurgard Europe that in view of the
circumstances referred to in paragraph 2 of this
schedule, he will not (other than for and on behalf
of the Company or any company in the Group) without
the prior written consent of the Board (such consent
to be withheld only so far as may be reasonably
necessary to protect the legitimate interests of the
Group) directly or indirectly:-
3.1 at any time during the Restriction Period:-
3.1.1 (except as the holder, by way of bona fide
investment only, of shares or securities listed
dealt in or traded on a recognised stock exchange
not exceeding 5% in nominal value of the securities
of that class) be engaged or concerned or interested
or participate in a business the same as or in
competition with the Business or relevant part
thereof in any Restricted Territory provided always
that this paragraph shall not restrain the Executive
from being engaged or concerned in any business
concern in so far as the Executive's duties or work
shall relate solely to:-
(a) geographical areas where the business concern is not
in competition with the Business; or
(b) services or activities with which the Executive was
not concerned to a material extent during the
Protected Period;
3.1.2 in relation to a business which is in competition
with the Business, perform any services or supply
goods to or deal with any person firm or company who
at any time during the Protected Period shall have
been a client or customer of the Company or any
company in the Group or shall have been a
prospective client or customer of such company and
with whom the Executive shall have had material
contact or dealings or for whose relationship with
the Company or any company in the Group the
Executive shall have had responsibility or about
whom he became aware or informed in the course of
his employment at any time during the Protected
Period;
3.1.3 canvass solicit or approach in relation to a
business which is in competition with the Business
the custom of any person who at any time during the
Protected Period shall have been a client or
customer of the Company or any company in the Group
or shall have been a prospective client or customer
or such company and with whom the Executive shall
have had material contact or dealings or for whose
relationship with the Company or any company in the
Group the Executive shall have had responsibility or
about whom he became aware or informed during the
Protected Period; or
3.1.4 offer employment to or employ or offer to conclude
any contract for services with or engage any Senior
Executive or procure or facilitate the making of
such an offer by any person firm or company who
shall be in competition with the Business within
such Restriction Period; or
3.1.5 solicit or entice any Senior Executive to leave his
employment with or cease his directorship of or
consultancy with the Company or any company in the
Group;
3.2 at any time falsely represent himself as being
connected with or interested in the Company or any
company in the Group or in the Business.
4. The Executive agrees that if, during his employment
pursuant to this agreement or the continuance in
force of the restrictions set out in this schedule,
he receives an offer of employment or engagement in
any capacity from any person, he will immediately
provide that person with a complete and accurate
copy of this schedule.
5. The Executive hereby acknowledges and agrees with
the Company that:-
5.1 each of the sub- clauses contained in paragraph 3 of
this schedule constitutes an entirely separate
severable and independent covenant and restriction
on him;
5.2 the duration, extent and application of each of the
restrictions contained in paragraph 3 of this
schedule are no greater than is necessary for the
protection of the goodwill and trade connections of
the Business; and
5.3 in the event that any restriction on him contained
in paragraph 3 of this schedule shall be found void
but would be valid if some part thereof were deleted
such restriction shall apply with any such deletion
as may be necessary to make it valid and effective;
and
5.4 the Company shall be entitled to seek to enforce
such restrictions not only on behalf of itself but
also on behalf of any other company in the Group.
THE SECOND SCHEDULE
This schedule sets out the benefits to which the Executive is
entitled:-
1. medical and dental insurance; life and disability
insurance and liability insurance , all as per the
current arrangements in place between the Executive
and the Company;
2. 401K savings plan; and ESOP programs (as per current
arrangements);
3.1 The Company shall provide the Executive with the use
of a motor car ("the Car") of a type and make
suitable for the status of the Executive subject to
any terms and conditions which the Company may from
time to time impose on the Executive in relation
thereto. The Car shall be provided by the Company
for the purpose of enabling the Executive properly
to perform his duties hereunder and shall be changed
for a new equivalent model every 60,000 miles or in
accordance with the Company's policy in that regard
from time to time.
3.2 The Company shall be responsible for the payment of
all road tax, insurance premiums, maintenance,
repair and running expenses including petrol and oil
consumed when the Car is in private use.
4.1 The Company will reimburse the Executive for the
school fees paid by the Executive in respect of the
attendance of the Executive's daughter Jessica Grant
at the American International School in Cobham,
Surrey or such other school as may be agreed by the
parties from time to time.
4.2 The Executive shall lease a property in the United
Kingdom where he and his family shall reside during
the period of this agreement. The Company will pay
to the Executive a sum equal to the full cost of the
Executive's housing and related expenses including
rental charges, insurances and utility expenses
subject to the maximum limit outlined in clause 4.4
of this schedule. Shurgard Europe shall serve as
the Executive's guarantor under the aforesaid
property lease.
4.3 The Company will pay for up to ten round trip air fares
(business class) between the USA and London for the Executive
and his family in any calendar year (subject to clause 4.4 of
this schedule). All such travel must be arranged through
Shurgard Europe's travel agent and will be paid directly by
the Company or Shurgard Europe. The Executive will use his
best efforts to arrange such travel, where possible, to
coincide with business related travel and to use airline
mileage programme awards to help minimise ticket costs.
4.4 The Company's obligation to provide the Executive with
the benefits and/or reimbursements provided for in clauses
3.1, 3.2, 4.2 and 4.3 of this schedule shall be subject to an
overall costs cap of 110,000 British pounds per annum ("the Cap").
Should the cost to the Company of complying with its obligations
under the said clauses exceed the Cap the Executive shall pay
the shortfall.
THE THIRD SCHEDULE
(a) An amount equal to the basic salary which the Executive
would have earned under this agreement in a 30 month
period following the Termination Date together with a
further sum equivalent to the value of the benefits to
which the Executive would have been entitled during such
30 month period under clauses 1 and 2 of the second
schedule to the extent that the Executive does not in
fact receive those benefits for the whole or part of such
period.
(b) An amount equal to the basic salary which the executive
would have earned under this agreement in a 18 month period
following the Termination Date together with a further sum
equivalent to the value of the benefits to which the Executive
would have been entitled during such 18 month period under
clauses 1 and 2 of the second schedule to the extent that the
Executive does not in fact receive those benefits for the
whole or part of such period save that the Executive shall not
be entitled to a sum equivalent to the value of those benefits
referred to in clause 4 of the Second Schedule to this
agreement in respect of any period after 30 June 2003.
(c) With respect to the payments referred to in clauses (a)
and (b) above, the Company may elect, at its sole discretion,
to pay such amounts:
(i) in the form of a lump sum payment in which event such
payment shall be made within 30 days of the Termination Date;
or
(ii) in equal bi-weekly payments for eighteen or thirty months
(as appropriate) each installment to be paid on the Company's
regular payroll dates.
(d) If the Company elects to make the payments referred to in
clauses (a) and (b) above in installments pursuant to
clause (c)(ii) of this schedule and the Executive dies
before receiving all the installments, the remaining
installments shall be paid to his spouse or otherwise to
the Executor or Personnel Representative of his estate
unless the Executive has otherwise directed the Company
in writing prior to his death.
(e) notwithstanding the foregoing, the Executive agrees that
in the event that he engages in conduct which constitutes
a material breach of his obligations set out in the first
schedule hereof the Company may, in addition to any
remedies which it may have under the first schedule,
discontinue any further payments due to the Executive
under paragraph (c)(ii) of this third schedule. Provided
that the Company may not and shall not discontinue such
further payments until it has warned the Executive about
his conduct and provided him with a reasonable
opportunity to remedy the breach or alleged breach (if
capable of remedy).
THE FOURTH SCHEDULE
(a) Notwithstanding anything to the contrary in this
agreement, and without prejudice to any of the other
sections of this agreement, if the Executive's employment
with the Company terminates for whatever reason and
whether lawfully or not prior to December 31 2005, the
parties agree that the Executive shall continue to render
consultancy services to the Company as an independent
consultant of the Company under the terms and conditions
set out in this section by entering into an agreement
("the Consulting Agreement") containing the terms set
forth in this schedule. Failure to execute the
Consultancy Agreement shall not impact the validity and
enforceability of the obligations set forth in this
fourth schedule. The Consultancy Agreement shall begin
(or if necessary be deemed to begin) on a date no later
than the date on which the Executive's employment with
the Company terminates and shall continue until December
31, 2005 unless terminated earlier for gross misconduct
or by mutual written consent.
(b) During the term of the Consultancy Agreement, the
Executive shall advise on such matters relating to the
self-storage business as the Company deems appropriate.
(c) In consideration of the services to be rendered by the
Executive to the Company under the Consultancy Agreement,
the Company shall pay the Executive an hourly fee of
$100. The Executive shall be available a minimum of 6
hours and a maximum of 12 hours per month and shall be
paid each month a minimum lump sum fee of $600, which fee
shall be increased if appropriate to correspond with any
hours worked in excess of 6 hours.
(d) The Company shall be entitled to credit against the
minimum monthly fee for any termination payments made to
Executive pursuant to the third schedule hereof.
(e) The Company shall pay the consultancy fees each month
within 15 days after receipt of an invoice from the
Executive.
(f) During the term of the Consultancy Agreement the
Executive shall be free to engage in other professional
activities, subject only to the provisions of the first
schedule.
(g) If the Consultancy Agreement would but for this clause
(g) be terminated earlier than 31 December 2005 for
whatever reason (except for gross misconduct, or by the
mutual consent of the parties) the Executive shall be
deemed to remain an independent consultant of the Company
for purposes of the E-Parco S.A.R.L. Shareholder's
Agreement, dated February 20, 1999 until December 31,
2005.
(h) The Executive acknowledges that during the term of the
Consultancy Agreement, he shall not be considered an
employee of the Company and shall not be eligible to
participate in any Company employment rights or benefits,
without prejudice to the benefits provided by this
agreement.
