Exhibit 10.1

 

Grant No.:       

 

CUBESMART
 2007 EQUITY INCENTIVE PLAN 
 (As Amended and Restated, Effective June 2, 2010)

 

PERFORMANCE SHARE UNIT AWARD AND AGREEMENT

 

This is a Performance Share Unit Award (this “Award”) from CubeSmart, a Maryland real estate investment trust (the “Company”), to the Grantee named below (the “Grantee”), subject to the vesting performance and conditions set forth in the attachment.  Except as otherwise provided below, upon and subject to the vesting of the Performance Share Units (the “PSUs”) under this Award, the Company will deliver one common share of beneficial interest, $.01 par value (a “Share”), of the Company to the Grantee for each vested PSU, subject to adjustment as provided below under “Adjustments”).  Additional terms and conditions applicable to this Award are set forth in this cover sheet, in the attached Agreement and in the Company’s Amended and Restated 2007 Equity Incentive Plan (the “Plan”).

 

Award Date: May 30, 2012

Award Date Price: $11.32

Vesting Date: December 31, 2013

Measurement Date: June 30, 2014
 Name of Grantee:  Dean Jernigan
 Number of PSUs Covered by this Award, subject to satisfaction of the applicable performance and vesting conditions:

 

	
Maximum:
    	
412,002
    
	
Target:
    	
274,668
    
	
Threshold:
    	
137,334
    


 

By signing this cover sheet, the Grantee agrees to all of the terms and conditions described in the attached Agreement and in the Plan, a copy of which has been provided to the Grantee.  The Grantee acknowledges that he or she has carefully reviewed the Plan and agrees that in the event any provision of this Award or the attached Agreement is inconsistent with the terms of the Plan, the terms of the Plan shall control.

 

 

	
Grantee:
    	
/s/   Dean Jernigan
    	
 
    
	
 
    	
Name:   Dean Jernigan
    	
 
    
	
 
    	
 
    	
 
    
	
Company:
    	
/s/   William M. Diefenderfer III
    	
 
    
	
 
    	
Name:   William M. Diefenderfer III
    	
 
    
	
 
    	
Title:   Chairman
    	
 
    


 

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CUBESMART
 AMENDED AND RESTATED 2007 EQUITY INCENTIVE PLAN

 

PERFORMANCE SHARE UNIT AGREEMENT

 

	
PSUs/Non-transferability
    	
 
    	
This   Award is a Performance Based Performance Award for up to the maximum number   of PSUs set forth on the cover sheet and is subject to the performance and   vesting conditions described below. Each PSU that vests represents the right   to delivery of one Share (subject to adjustment as provided below under   “Adjustments”). The PSUs are restricted and may not be transferred, assigned,   pledged or hypothecated, whether by operation of law or otherwise, nor may   the Shares potentially subject to delivery upon vesting of PSUs be made   subject to execution, attachment or similar process.
    
	
 
    	
 
    	
 
    
	
Vesting   of PSUs and Issuance of Shares
    	
 
    	
Except   as otherwise provided below, the Company will issue on the Measurement Date   one Share (subject to adjustment as provided below under “Adjustments”) in   your name with respect to each PSU that vests pursuant to the terms of this   Agreement. 

 

Provided   that you continue in service through the Vesting Date, the number of PSUs   that shall vest shall be equal to the number that is the product of   (i) 274,668 multiplied by (ii) the Performance Vesting Factor (as   defined below) on the Measurement Date. 

 

The   Performance Vesting Factor shall be a fraction equal to “x” divided by “y”   where:

 

“x”   is the average closing Share price during the thirty (30) trading days   immediately preceding the Measurement Date, provided that “x” shall not   exceed 1.5 * Award Date Price, and provided that if the applicable average   closing Share price is less than 0.5 * Award Date Price, the value of “x”   shall be deemed to be zero; and 

 

“y”   equals the Award Date Price. 

 

For   avoidance of doubt, if the applicable average closing Share price on the   Measurement Date is less than 0.5 * Award Date Price, then no PSUs shall vest   and, therefore, no Shares shall be deliverable with respect to PSUs, and all   Shares that were potentially deliverable with respect to PSUs on the   Measurement Date shall be forfeited.
    
	
 
    	
 
    	
 
    
	
Termination   of Service Due to Death, Disability, or Company-
    	
 
    	
If   your service with the Company terminates due to death, disability or Company-initiated   termination without Cause or (if you have an Employment Agreement with the   Company that provides for severance benefits upon your resignation for Good   Reason) you terminate service
    


 

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Initiated   Termination of Service Without Cause
    	
 
    	
due   to your resignation for Good Reason, then the number of PSUs subject to this   Award shall be fixed at the Target number of PSUs listed on the cover sheet,   provided further that if you terminate service because of a Company-initiated   termination of service without Cause, vesting of your PSUs is also   conditioned on your continued adherence to all restrictive covenants and   confidentiality obligations you have to the Company or any of its   Subsidiaries or Affiliates from the date on which your service terminates   through the Vesting Date. As used in this Agreement, (i) the term   “Cause” has the meaning given to it in the Plan or (if you have an Employment   Agreement with the Company) the Employment Agreement between you and the   Company, and (ii) the term “Good Reason” has the meaning given to it in   the Employment Agreement (if any) between you and the Company.
    
	
 
    	
 
    	
 
    
	
Change   In Control
    	
 
    	
In   the event of a Change in Control before the Measurement Date, the number of   PSUs subject to this Award shall be fixed at the Target number of PSUs listed   on the cover sheet. The Target number of PSUs shall vest if you continue in   service through the Vesting Date, provided that the Target number of PSUs   shall vest on the date your service terminates if your service terminates   because of a Company-initiated termination of service without Cause, or (if   you have an Employment Agreement with the Company that provides for severance   benefits upon a resignation for Good Reason) you terminate service due to   your resignation with Good Reason. If your service terminates because of your   death or disability after a Change in Control and before the Measurement   Date, the number of PSUs subject to this Award shall be fixed at the Target   number of PSUs listed on the cover sheet and shall vest as of the date your   service terminated because of your death or disability.
    


 

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Forfeiture   of Unvested Shares
    	
 
    	
Except   as provided pursuant to the terms of any Employment Agreement between you and   the Company or in the provisions of this Award relating to Change in Control,   in the event that your service terminates for any reason other than for Good   Reason, death, disability, or Company-initiated termination of service without   Cause before the Vesting Date, you will forfeit to the Company all of the   Shares subject to this Award that have not yet vested.
    
	
 
    	
 
    	
 
    
	
Repayment

 
    	
 
    	
If   it is determined by the Board of Trustees (the “Board”) of the Company   or Compensation Committee of the Board (the “Committee”) that your   gross negligence, intentional misconduct or fraud caused or partially caused   the Company to have to restate all or a portion of its financial statements,   the Board or Committee, in its sole discretion, may, to the extent permitted   by law and to the extent it determines in its sole judgment that it is in the   best interests of the Company to do so, require repayment of Shares delivered   pursuant to vested PSUs or effect the cancellation of unvested PSUs if (i) the   vesting of PSUs was calculated based upon, or contingent on, the achievement   of financial or operating results that were the subject of or affected by the   restatement, and (ii) the extent of vesting of PSUs would have been less   had the financial statements been correct.    You also agree that each of the Board and Committee has the authority   to amend this provision relating to cancellation or repayment to the extent   it reasonably determines that such an amendment is required to comply with   the Dodd—Frank Wall Street Reform and Consumer Protection Act, or any other   applicable law relating to cancellation or repayment of compensation   following the restatement of financial statements by a public company.
    
	
 
    	
 
    	
 
    
	
Discretion   to Pay Cash Instead of Delivering Shares
    	
 
    	
At   any time you may have the right to receive Shares in connection with the   vesting of PSUs under this Agreement, the Company may direct that you shall   receive payment, subject to applicable withholding in cash in an amount equal   to the closing Share price on the date on which the Share would otherwise be   delivered to you (or if such date is not a trading date, the closing Share   price on the immediately preceding trading date).  
    
	
 
    	
 
    	
 
    
	
Withholding   Taxes
    	
 
    	
You   agree, as a condition of this Award, that you will make acceptable   arrangements to pay any withholding or other taxes that may be due as a   result of the vesting of PSUs or Shares acquired under this Award. In the   event that the Company determines that any federal, state, local or foreign   tax or withholding payment is required relating to the vesting of PSUs or   Shares issuable under this Award, the Company shall have the 
    


 

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right   to: (i) require such payments from you, (ii) withhold such amounts   from other payments due to you from the Company or any Affiliate or (iii) cause   an immediate forfeiture of Shares subject to vesting pursuant to this   Agreement in an amount sufficient to satisfy the withholding or other taxes   due.
    
	
 
    	
 
    	
 
    
	
Retention   Rights
    	
 
    	
This   Agreement does not give you the right to be retained by the Company (or any   parent, Subsidiaries or Affiliates) in any capacity.
    
	
 
    	
 
    	
 
    
	
Shareholder   Rights
    	
 
    	
You   do not have any of the rights of a shareholder by virtue of or with respect   to the PSUs unless and until the PSUs relating to the Shares vest.  You do not have the right to make an   election pursuant to Section 83(b) of the Internal Revenue Code of   1986, as amended.
    
	
 
    	
 
    	
 
    
	
Adjustments
    	
 
    	
In   the event of a Share combination or split, a Share dividend or a similar   change in the Shares, the number of Shares covered by this Award and the   applicable closing Share prices shall be adjusted pursuant to the Plan,   provided that the adjusted number of Shares shall be rounded down to the   nearest whole number.  Shares subject   to delivery under PSUs shall be subject to the terms of any agreement of   merger, liquidation or reorganization which become applicable to the Company.
    
	
 
    	
 
    	
 
    
	
Legends
    	
 
    	
Any   certificates representing Shares issued in connection with this Award shall,   where applicable, have endorsed thereon the following legend:

 

“THE   SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON   TRANSFER SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED   HOLDER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT IS ON   FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON   WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF RECORD OF   THE SHARES REPRESENTED BY THIS CERTIFICATE.”
    
	
 
    	
 
    	
 
    
	
Applicable   Law
    	
 
    	
This   Agreement will be interpreted and enforced under the laws of the State of   Maryland, other than any conflicts or choice of law rule or principle   that might otherwise refer construction or interpretation of this Agreement   to the substantive law of another jurisdiction.
    
	
 
    	
 
    	
 
    
	
Data   Privacy
    	
 
    	
In   order to administer the Plan, the Company may process personal data about   you. Such data includes, but is not limited to, the information provided in   this Agreement and any changes thereto, other appropriate personal and   financial data about you such as home address and business addresses and   other contact information, payroll information and any other information that   might be deemed appropriate by the Company to 
    


 

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facilitate   the administration of the Plan.

 

By   accepting this Award, you give explicit consent to the Company to process any   such personal data. You also give explicit consent to the Company to transfer   any such personal data outside the country in which you work or are employed,   including, with respect to non-U.S. resident Grantees, to the United States,   to transferees who shall include the Company and other persons who are   designated by the Company to administer the Plan.
    
	
 
    	
 
    	
 
    
	
Consent   to Electronic Delivery
    	
 
    	
The   Company may choose to deliver certain statutory materials relating to the   Plan in electronic form. By accepting this Award, you agree that the Company   may deliver the Plan prospectus and the Company’s annual report to you in an   electronic format. If at any time you would prefer to receive paper copies of   these documents, as you are entitled to, the Company would be pleased to   provide copies. Please contact the Secretary of the Company to request paper   copies of these documents.
    


 

By signing the cover sheet of this Agreement, you agree to all of the terms and conditions described above and in the Plan.

 

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