INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this " Agreement ") is made as of
September 25, 2009, by and between Sovran Self Storage, Inc., a
Maryland corporation (the " Corporation "), Sovran
Acquisition Limited Partnership, a Delaware limited partnership
(the " Operating Partnership " and, collectively with the
Corporation, the " Indemnitors "), and James R. Boldt, a
director of the Corporation (" Director ").
RECITALS
WHEREAS,
candidates highly qualified for service on the boards of directors
of publicly-held corporations have become increasingly reluctant to
serve in that capacity or in other related capacities unless they
are provided with strong protection through indemnification and
insurance against the substantial and escalating risks of, and
potential liability from, claims and actions arising out of their
service to and activities on behalf of such corporations, which
risks, absent such adequate protection, would far outweigh the
compensation and other benefits to such persons of serving as
directors;
WHEREAS,
although the Board of Directors of the Corporation (the "
Board ") has determined that, in order to attract and retain
such persons to serve on the Board, the Corporation will attempt to
maintain on an ongoing basis, at its sole expense, liability
insurance to protect persons serving on the Board and in other
related capacities from certain liabilities, the Board recognizes
that such insurance may be available to it in the future only at
higher premiums and with more exclusions from its coverage, which
reduces the value of such insurance to directors and increases the
importance of indemnification by the Corporation to protect
directors against such liabilities;
WHEREAS,
it is essential for the Corporation to be able to attract and
retain the most capable persons available to serve on the Board,
and the uncertainties relating to such insurance and
indemnification has increased the difficulty of attracting and
retaining such persons;
WHEREAS,
the Corporation indirectly controls the Operating Partnership
(through its ownership of the general partner of the Operating
Partnership (the " General Partner ")) and conducts
substantially all of its business through the Operating
Partnership, such that the Operating Partnership would benefit from
the Corporation's ability to attract and retain the most qualified
persons to serve on its Board of Directors;
WHEREAS,
in order to induce the most qualified persons to serve and continue
to serve as directors of the Corporation, the Indemnitors desire to
provide directors with specific contractual assurance of their
rights to full indemnification against litigation risks and
expenses associated with their service as a director of the
Corporation and in other related capacities regardless of, among
other things, any amendment to or revocation of the Corporation's
charter or Bylaws or any change in the ownership of the Corporation
or in the composition of the Board;
WHEREAS,
the Indemnitors intend that this Agreement will provide Director
with greater protection than that which is provided by the
Corporation's charter and Bylaws, the Agreement of Limited
Partnership of the Operating Partnership and that this Agreement
shall supplement and be in furtherance of the By-laws of the
Corporation and any resolutions adopted pursuant thereto as well as
the Agreement of Limited Partnership of the Operating Partnership,
shall not be deemed a substitute therefor, and shall not diminish
or abrogate any rights of Director thereunder;
WHEREAS,
Director is relying upon the rights afforded under this Agreement
in deciding to begin serving or continue to serve as a director of
the Corporation; and
NOW,
THEREFORE, in consideration of the premises and covenants contained
herein, and in order to induce Director to serve as or to continue
to serve as a director of the Corporation and in consideration of
Director's so serving, the Indemnitors and Director do hereby
covenant and agree as follows:
Section
1. Services to the Corporation
. Director agrees to continue to serve as a director of
the Corporation and may serve as a director, officer, employee,
agent or fiduciary of one or more Covered Entities (as defined
below). Director may at any time and for any reason
resign from any such position (subject to any other contractual
obligation or any obligation imposed by operation of law), in which
event the Corporation shall have no obligation under this Agreement
to continue Director in any such position. This
Agreement shall not be deemed an employment contract between
Director and the Corporation (or any Covered
Entity). The foregoing notwithstanding, this Agreement
shall continue in force after Director has ceased to serve as a
director of the Corporation or otherwise ceased to have Corporate
Status (as defined below).
Section
2. Definitions . As used in this
Agreement:
(a) A
" Change in Control " shall be deemed to occur upon the
earliest to occur after the date of this Agreement of any of the
following events:
(i)
Acquisition of Stock by Third Party . Unless
explicitly approved by the Incumbent Board (as defined below), any
Person (as defined below) is or becomes the Beneficial Owner (as
defined below), directly or indirectly, of securities of the
Corporation representing 20% or more of the combined voting power
of the Corporation's then outstanding securities;
(ii)
Change in Board of Directors . A change in the
composition of the Board of Directors of the Corporation such that
the individuals who, as of the date hereof, constitute the Board of
Directors of the Corporation (such Board of Directors shall be
hereinafter referred to as the " Incumbent Board ") cease
for any reason to constitute at least a majority of the Board of
Directors of the Corporation; provided, however, for purposes of
this clause (ii), any individual who becomes a member of the Board
of Directors of the Corporation subsequent to the date hereof whose
election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least a majority of
those individuals who are members of the Board of Directors of the
Corporation and who were also members of the Incumbent Board (or
deemed to
be such
pursuant to this provision) shall be considered as though such
individual were a member of the Incumbent Board; but, provided,
further, that any such individual whose initial assumption of
office occurs as a result of an actual or threatened solicitation
of proxies or consents by or on behalf of a person other than the
Board of Directors of the Corporation shall not be so considered as
a member of the Incumbent Board; or
(iii)
Corporation Transactions . The effective date of
a merger or consolidation of the Corporation with any other entity,
other than a merger or consolidation which would result in the
voting securities of the Corporation outstanding immediately prior
to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 60% of the combined voting power
of the voting securities of the surviving entity outstanding
immediately after such merger or consolidation and with the power
to elect at least a majority of the board of directors or other
governing body of such surviving entity;
(iv)
Liquidation . Unless the liquidation is
explicitly approved by the Incumbent Board, the approval by the
shareholders of the Corporation of a complete liquidation of the
Corporation, or a plan therefor, or an agreement for the sale or
disposition by the Corporation of all or substantially all of the
Corporation's assets; and
(v)
Other Events . Unless the event is explicitly
approved by the Incumbent Board, there occurs any event of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item
on any similar schedule or form) promulgated under the Exchange
Act, as hereinafter defined, regardless of whether the Corporation
is then subject to such reporting requirement.
Solely
for purposes of this Section 2(a), the following terms shall have
the following meanings:
(A) "
Exchange Act " shall mean the Securities Exchange Act of
1934, as amended.
(B) "
Person " shall have the meaning as set forth in Sections
13(d) and 14(d) of the Exchange Act and, for greater clarity, shall
include, without limitation, any entity or "group" within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act;
provided, however, that Person shall exclude (i) the Corporation,
(ii) any trustee or other fiduciary holding securities under
an employee benefit plan of the Corporation, and (iii) any
corporation owned, directly or indirectly, by the shareholders of
the Corporation in substantially the same proportions as their
ownership of stock of the Corporation.
(C) "
Beneficial Owner " shall have the meaning given to such term
in Rule 13d-3 under the Exchange Act; provided, however, that
Beneficial Owner shall exclude any Person otherwise becoming a
Beneficial Owner by reason of the shareholders of the Corporation
approving a merger, consolidation or other business combination of
the Corporation with another entity.
(b) "
Corporate Status " describes the status of a person who is
or was a director, officer, employee, agent or fiduciary of the
Corporation or any Covered Entity.
(c) "
Covered Entity " shall mean the Corporation, the Operating
Partnership, the General Partner and any other corporation, limited
liability company, partnership, joint venture, trust, employee
benefit plan or other entity or enterprise (as well as any domestic
or foreign predecessor entity of each such entity in a merger,
consolidation or other transaction) of which Director is, was or
may be deemed to be serving at the request of the Corporation as a
director, officer, employee, partner (limited or general), trustee,
agent or fiduciary. References to "serving at the
request of the Corporation" shall include any service as a
director, officer, employee, partner (limited or general), trustee,
agent or fiduciary of a Covered Entity which imposes duties on, or
involves services by, such director, officer, employee, partner
(limited or general), trustee, agent or fiduciary with respect to
an employee benefit plan, its participants or
beneficiaries.
(d) "
Disinterested Director " means a director of the Corporation
who is not and was not a party to the Proceeding in respect of
which indemnification is sought by Director.
(e) "
Disqualifying Conduct " means (A) the act or omission of
Director was material to the matter giving rise to the Proceeding
and (1) was committed in bad faith or (2) was the result of
active and deliberate dishonesty, (B) Director actually received an
improper personal benefit in money, property or services, or (C) in
the case of any criminal Proceeding, Director had reason to believe
that his conduct was unlawful.
(f) "
Expenses " shall include all reasonable attorneys' fees,
retainers, court and arbitration costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing
and binding costs, scanning and data processing charges, electronic
legal research and other database charges, 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, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also shall
include (i) Expenses incurred in connection with any appeal
resulting from any Proceeding, including the premium, security for,
and other costs relating to any cost bond, supersedeas bond, or
other appeal bond or its equivalent, and (ii) for purposes of
Section 12(d) only, Expenses incurred by Director in connection
with the interpretation, enforcement or defense of Director's
rights under this Agreement, by litigation or
otherwise. Expenses, however, shall not include amounts
paid in settlement by Director or the amount of judgments or fines
(including any excise tax assessed with respect to any employee
benefit plan) against Director.
(g) "
Independent Counsel " means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and that
neither presently is, nor in the past five years has been, retained
to represent any of the following: (i) the Indemnitors
or Director in any matter material to either such party (other than
with respect to matters concerning Director under this Agreement,
or of other Directors under similar indemnification agreements), or
(ii) any other party to the Proceeding giving rise to a claim
for indemnification
hereunder. Notwithstanding
the foregoing,
the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Indemnitors or Director in an action to determine
Director's rights under this Agreement. The Indemnitors
agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto.
(h) "
Losses " means Expenses, judgments, costs, fines (including
any excise tax assessed with respect to any employee benefit plan)
and amounts paid in settlement actually incurred by Director (net
of any related insurance proceeds or other indemnification payments
received by Director or paid on Director's behalf as des