UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 8-K
 
CURRENT REPORT
 
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
 
Date of Report: April 17 , 2013
 
  CYRUSONE INC.
(Exact Name of Registrant as Specified in its Charter)
 
 
Maryland
 
001-35789
 
46-0691837
(State or other jurisdiction
of incorporation)
 
(Commission
File Number)
 
(IRS Employer
Identification No.)

1649 West Frankford Road
Carrollton, TX 75007
(Address of Principal Executive Office)
 
Registrant’s telephone number, including area code: (972) 350-0060
 
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 
 
 
 
 
 
 

ITEM 5.02— Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers.

Compensatory Arrangements of Certain Officers

On April 17, 2013, the compensation committee (the “ Committee ” ) of the board of directors of CyrusOne Inc. (the “ Company ”) approved and adopted forms of performance-based award agreements for options and restricted stock under the Company’s 2012 Long Term Incentive Plan (the “ Plan ”).

All the form award agreements generally provide for vesting over a performance evaluation period, subject to the attainment of performance criteria.  The number of shares that vests under each award varies depending on the level of attainment of the specific performance criteria during the performance evaluation period.  Upon the termination of a grantee’s employment due to death or disability, any award granted to such grantee will vest on a pro-rata basis, to the extent it has not vested earlier pursuant to the terms of the applicable award agreement, and any portion of such award that remains unvested will be forfeited.  Upon the termination of a grantee’s employment other than due to death or disability or by the Company for “Cause” (as defined by the applicable award agreement), any award granted to such grantee will either (i) vest on a pro-rata basis at the target level of the award (in the case of certain employees of the Company) or (ii) vest at the target level of the award (in the case of certain executives of the Company), in each case, to the extent it has not vested earlier pursuant to the terms of the applicable award agreement, and any portion of such award that remains unvested will be forfeited.  In the event of a  “Change in Control” (as defined by the Plan) the awards of certain executives of the Company will vest at the target level of the award to the extent each such award has not vested earlier pursuant to the terms of the applicable award agreement.  In the event that, within 12 months following a Change in Control (in the case of certain employees of the Company), or within 24 months following a Change in Control (in the case of certain executives of the Company), a grantee’s employment is terminated by the Company without Cause, then any award granted to such grantee will (i) vest on a pro-rata basis (in the case of certain employees of the Company) at the target level of the award or (ii) vest at the maximum level of the award (in the case of certain executives of the Company), in each case, to the extent such award has not vested earlier pursuant to the terms of the applicable award agreement, and any portion of such award that remains unvested will be forfeited.
 
On April 17, 2013, the Committee approved grants of performance-based options and performance-based restricted stock to Gary Wojtaszek, Kimberly Sheehy, Kevin Timmons and Michael Duckett, in each case, under the Plan and pursuant to award agreements substantially similar to the form award agreements described herein and attached hereto.  Mr. Wojtaszek received awards of performance-based options covering a maximum of 41,822 shares and a target of 20,911 shares and restricted stock covering a maximum of 55,028 shares and a target of 27,514 shares and Ms. Sheehy and Messrs. Timmons and Duckett each received awards of performance-based options covering a maximum of 20,911 shares and a target of 10,455 shares and restricted stock covering a maximum of 27,514 shares and a target of 13,757 shares.  The awards will vest, subject in each case to the performance criteria set forth in the applicable award agreement documents, as follows:  (i) up to 50% of the maximum number of shares will vest in cumulative installments on March 31, 2014, March 31, 2015 and March 31, 2016 and (ii) up to 50% of the maximum number of shares will cliff-vest on March 31, 2016.  Awards that do not vest pursuant to the terms of the award agreement will be forfeited back to the Company.

The form executive performance-based option award agreement, the form employee performance-based option award agreement, the form executive performance-based restricted stock award agreement and the form employee performance-based restricted stock award agreement are each attached hereto as Exhibits 10.1, 10.2, 10.3 and 10.4, respectively, and incorporated by reference herein.


ITEM 9.01 – Financial Statements and Exhibits.
 
(d) Exhibits
 
Exhibit No.
 
Description
     
10.1
 
Form of Executive Non-Statutory Performance Stock Option Award.
10.2
 
Form of Employee Non-Statutory Performance Stock Option Award.
10.3
 
Form of Executive Performance Restricted Stock Award.
10.4   Form of Employee Performance Restricted Stock Award.
 
 
 
 
 

 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
 
CYRUSONE INC.
 
       
Date:  April 19, 2013
By:
/s/ Thomas W. Bosse  
    Thomas W. Bosse  
   
Vice President, General Counsel and Secretary
 
       
 
 
 
 
 
 
 
 
 
 
 
 

 
EXHIBIT INDEX
 
Exhibit No.
 
Description
     
10.1
 
Form of Executive Non-Statutory Performance Stock Option Award.
10.2
 
Form of Employee Non-Statutory Performance Stock Option Award.
10.3
 
Form of Executive Performance Restricted Stock Award.
10.4   Form of Employee Performance Restricted Stock Award.
 
Exhibit 10.1
 
 
EXECUTIVE
NON-STATUTORY PERFORMANCE STOCK OPTION AWARD
UNDER THE PROVISIONS OF THE
CYRUSONE 2012 LONG TERM INCENTIVE PLAN

Name of Employee:
[Employee Name]
Award Date:
[Award Date]
Approval Date:
[Approval Date]
Target Number of Options:
[Number of Shares]
Maximum Number of Options: [Number of Shares]

Pursuant to the provisions of the CyrusOne 2012 Long Term Incentive Plan (as in effect from time to time, (the “ Plan ”)), the Board of Directors of CyrusOne Inc. hereby grants to the employee named above (“ you ” or the “ Employee ”) on the date noted above (the “ Award Date ”) options to purchase from CyrusOne Inc. (“ CyrusOne ”) an aggregate number of common shares set forth on Exhibit A attached hereto, par value $.01 per share, of CyrusOne (the “ Shares ”) at the exercise price and on and subject to the terms of the Plan and your agreement to the terms, conditions and restrictions contained herein and subject to the achievement of certain performance-based vesting criteria (each, a “ Performance Goal ”) as set forth on Exhibit A (the “ Options ”).  Capitalized terms used in this performance option award agreement (this “ Agreement ”) that are not defined in this Agreement have the meanings as used or defined in the Plan.

1.     Securities Subject to this Agreement .  The number of Shares to which the Options relate, the exercise price of the Options and the Options themselves will be subject to the adjustment provisions set forth in Section 18 of the Plan.  These Options are intended to be non-statutory stock options.
 
2.     Exercise .  Upon the vesting of any Options as set forth in Section 3, 4, 5, 6 or 7 hereof, as applicable, such portion of the Options to the extent vested, may be exercised, in whole or in part (but for the purchase of whole Shares only), by delivery to CyrusOne of written notice of the number of Shares to be purchased. As soon as administratively practical after the receipt of the written notice and full payment applicable to the exercise of any of the Options, CyrusOne shall deliver to you (or such other person who is exercising the Option, as provided herein) a certificate or book-entry credit representing each acquired Share.  CyrusOne hereby agrees that at all times there shall be reserved for issuance and/or delivery upon exercise of any of the Options such number of Shares as shall be required for issuance or delivery upon exercise thereof.  You must pay for the Shares purchased pursuant to the exercise of the Options hereby granted using any one or more of the methods or any combination of the methods set forth in Section 19.2 of the Plan.  The exercise price of the Options and any applicable taxes required to be withheld upon the exercise of any of the Options must be paid in full at the time of the exercise, pursuant to Section 12 hereof.
 
3.     Performance Vesting and Exercise .
 
(a)           Except as otherwise provided in any Employment Agreement (as defined in Section 14 hereof) or determined by the Committee in its sole discretion or provided in Section 4, 5, 6 or 7 hereof, subject to the Committee’s determination that the applicable Performance Goal has been attained for the applicable Performance Evaluation Period (as defined in Exhibit A) at a Performance Level (as defined in Exhibit A) that permits vesting, as set forth in Section 3(b) below, on each Vesting Date (as defined in Exhibit A), the Options shall vest with respect to the number of Shares that corresponds to such Performance Level for such Vesting Date, as set forth on Exhibit A, and become exercisable.  In no event shall you have any rights to exercise any of the Options prior to the date such Options vest pursuant to this Agreement.  Your right to exercise any part or all of the Options shall expire ten years from the Award Date, unless sooner terminated or canceled as provided in this Agreement.
 
 
 
1
 
 
 
(b)           On each Determination Date (as defined below), the Committee shall determine whether the applicable Performance Goal has been attained, and the Performance Level at which it has been attained, for the applicable Performance Evaluation Period and shall provide notice to you of such determination as soon as reasonably practicable following such determination in accordance with Section 13 of this Agreement.  “ Determination Date ” means the date as soon as reasonably practicable following the completion of the applicable Performance Evaluation Period, as determined by the Committee, on which the Committee determines whether the applicable Performance Goal has been achieved.
 
(c)           For the avoidance of doubt, to the extent a number of Options vests and becomes exercisable pursuant to the terms of Section 4, 5, 6 or 7 of this Agreement, the number of Options that so vests shall include, but shall not be in addition to, any Options that previously vested and became exercisable pursuant to the terms of Section 3 of this Agreement.

4.     Termination of Restrictions Upon Death .  Except as otherwise provided in any Employment Agreement, in the event of your death while an Employee, then, effective as of the date of your death, the number of Options (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares subject to the Options (as set forth on Exhibit A) as the number of days from the Award Date through the date of your death bears to 1,096 shall vest (to the extent such Options have not earlier vested under the terms of this Agreement) and may be exercised in accordance with Section 2 hereof within one year after the date of your death (but not in any event later than the end of the day immediately preceding the tenth anniversary of the Award Date).  Any Options that remain unvested after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of your date of death in accordance with the terms of Section 8 hereof.  Upon the vesting of certain Options under the first sentence of this Section 4 and subsequent exercise, the executor, administrator or other personal representative of your estate, or the trustee of any trust becoming entitled thereto by reason of your death, may transfer the applicable Shares to any person or persons entitled thereto under your will or under your trust or other instrument (or, in the absence of any will, under the laws of descent and distribution) governing the distribution of your estate in the event of your death.
 
5.     Termination of Restrictions Upon Disability .  Except as otherwise provided in any Employment Agreement, if, pursuant to the applicable disability provision of any Employment Agreement, you become disabled and as a result thereof cease to be an Employee under and pursuant to such provision or, if no such provision exists or you are not party to an Employment Agreement, you become disabled to such extent that you are unable to perform the usual duties of your job for a period of 12 consecutive weeks or more and, as the result thereof, the Committee approves the termination of your employment within the 12-month period following the first day of such 12 consecutive week period, then, effective as of the date you cease to be an Employee as described in this Section 5, the number of Options (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares subject to the Options (as set forth on Exhibit A) as the number of days from the Award Date through the date you cease to be an Employee bears to 1,096 shall vest (to the extent such Options have not earlier vested under the terms this Agreement) and may be exercised in accordance with Section 2 hereof within one year after the date of the termination of your employment due to disability (but not in any event later than the end of the day immediately preceding the tenth anniversary of the Award Date).  Any Options that remain unvested after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.
 
 
 
2
 
 
 
6.            Termination of Restrictions Upon Termination of Employment Other than for Death, Disability or Cause .  Except as otherwise provided in any Employment Agreement, if the Company terminates your employment other than by reason of your death or disability or other than for Cause, then, effective as of the date you cease to be an Employee as described in this Section 6, the target number of Shares subject to the Options (as set forth on Exhibit A) shall vest (to the extent such Options have not vested earlier under the terms of this Agreement) and may be exercised in accordance with Section 2 hereof within one year after the date of the termination of your employment (but not in any event later than the end of the day immediately preceding the tenth anniversary of the Award Date. Any Options that remain unvested after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.  For purposes of this Agreement, “ Cause ” shall have the meaning set forth in any Employment Agreement, or, if you do not have an Employment Agreement, shall mean the occurrence of any one of the following: (i) your material dereliction of your duties, your gross negligence or substantial failure to perform your duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness); (ii) your engaging in (A) misconduct that is materially injurious to the Company or (B) illegal conduct; (iii) your material breach of any written agreement by and between you and the Company; (iv) your violation of any material provision of the Company’s Code of Business Conduct and Ethics; or (v) your willful failure to cooperate in good faith with an investigation by any governmental authority.
 
7.            Termination of Restrictions Upon Change in Control .  If a Change in Control occurs, then, except as otherwise provided in any Employment Agreement, the target number of Shares subject to the Options (as set forth on Exhibit A) shall vest (to the extent such Options have not vested earlier under the terms of this Agreement) and may be exercised in accordance with Section 2 hereof, provided , however , that, subject to the terms of any Employment Agreement and notwithstanding any other provision of this Agreement to the contrary, in the event that within twenty-four months following a Change in Control your employment is terminated by the Company other than for Cause,  then, effective as of the date of such termination, the maximum number of Shares subject to the Options (as set forth on Exhibit A) shall vest (to the extent such Options have not vested earlier under the terms of this Agreement, including any Options that vested in connection with the Change in Control event) and may be exercised in accordance with Section 2 hereof within one year after the date of the termination of your employment (but not in any event later than the end of the day immediately preceding the tenth anniversary of the Award Date).
 
 
 
3
 
 
 
8.            Forfeiture .  Except as otherwise determined by the Committee or provided in Sections 3, 4, 5, 6 and 7 hereof or any Employment Agreement, any Options that remain unvested on the date you cease to be an Employee shall be forfeited to CyrusOne as of such date and, upon such forfeiture, all of your rights in respect of such Options shall cease automatically and without further action by CyrusOne or you.
 
9.            Employment .  For purposes of this Agreement, you shall be deemed to be an “Employee” while, and only while, you are in the employ of the Company and considered to be employed under the policies and procedures (including the payroll and withholding procedures) of the Company.  In this regard, the granting of this Agreement does not constitute a contract of employment and does not give you the legal right to be continued as an Employee.
 
10.          Matters Relating to Certificates .  On or following the date of this Agreement, any Shares issued to you upon the exercise of the Options in accordance with and subject to this Agreement shall be evidenced in such manner as CyrusOne shall determine.
 
11.          Interpretation .  You acknowledge that the Committee has the authority to construe and interpret the terms of the Plan and this Agreement if and when any questions of meaning arises under the Plan or this Agreement, and any such construction or interpretation shall be binding on you, your heirs, executors, administrators, personal representatives and any other persons having or claiming to have an interest in the Options.
 
12.          Withholding .  In the event that the award and receipt of the Options, the vesting or exercise of any Options, the payment of dividends after the exercise of any Options or any other event results in your realization of income or wages which for federal, state and/or local income or other employment tax purposes is, in the opinion of the Company, subject to withholding of tax by the Company, you shall pay to the Company an amount equal to the withholding tax amount that the Company determines applies with respect to such event or make arrangements satisfactory to the Company regarding the payment of such tax, which arrangements may include your agreement to surrender Shares issued or delivered upon the exercise of Options that have vested.  Otherwise, the Company may, at its discretion and to the extent it determines is necessary to pay such withholding tax amount, withhold any such withholding tax amount from your salary, any Shares issued or delivered upon the exercise of Options that have vested or any other compensation payable to you.
 
13.          Notices .  All notices and other communications to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, first class postage prepaid, and addressed as follows:

 
TO CYRUSONE:
CyrusOne Inc.
 
 
Kimberly Sheehy
 
 
1649 Frankford Road
 
 
Carrollton, TX 75007

 
TO THE EMPLOYEE:
Employee Name
   
Address

or to any other address as to which notice has been given in the manner herein provided.
 
 
 
4
 
 
 
14.            Effect of Employment Agreement .  Notwithstanding any of the terms of the foregoing sections of this Agreement, if the provisions of a written employment agreement between you and the Company (any such agreement, an “ Employment Agreement ”) would require that any Options will vest or be exercisable on a date that occurs on or before the date the Options would have vested, become exercisable or been forfeited, in each case, under the terms of the foregoing sections of this Agreement, or would require that you be deemed to be employed by the Company until a date later than the actual date on which your employment terminates for purposes of determining the extent to which and the date on which the Options would vest, become exercisable or be forfeited, then such Employment Agreement provisions shall control (and shall be deemed an amendment to this Agreement and incorporated herein by reference), provided, however that notwithstanding any provision of this Agreement to the contrary, all Options shall automatically expire on the tenth anniversary of the Award Date.  In the event of any conflict between the terms of the Plan, on the one hand, and the terms of this Agreement or any Employment Agreement, on the other hand, the terms of the Plan shall govern.  In the event of any conflict between the terms of this Agreement and the terms of any Employment Agreement, the terms of such Employment Agreement shall govern.
 
15.            Miscellaneous .
 
(a)           The Options are intended to be non-statutory stock options for purposes of the Plan.  Unless otherwise provided by the Committee in its discretion, Options may not be sold, assigned alienated, transferred, pledged, attached or otherwise encumbered except as provided in Section 16 of the Plan.  You shall not have any rights or privileges of a stockholder with respect to the Options subject to this Agreement, including the right to vote the Shares or to receive dividend with respect to the Shares, unless, until and only to the extent that certificates representing Shares are actually issued and delivered to you or your legal representative upon exercise of this award.  On or after delivery of Shares, you shall have, with respect to Shares delivered, all of the rights of a stockholder of CyrusOne, including the right to vote the Shares and the right to receive dividends with respect to the Shares.
 
(b) This Agreement shall be binding upon the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and assigns.  Subject to the provisions of the Plan and any applicable Employment Agreement, this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall be construed and interpreted in accordance with the laws of the State of Texas.  If any provisions of this Agreement shall be deemed to be invalid or void under any applicable law, the remaining provisions hereof shall not be affected thereby and shall continue in full force and effect.  In the event you fail to sign and return this Agreement to CyrusOne within one month of the Award Date, the Options and the number of Shares to which the Options relate shall be forfeited to CyrusOne and this Agreement shall become immediately void and of no further force or effect.
 
(c)           The Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate this Agreement prospectively or retroactively; provided, however, that any such waiver, amendment, alteration, suspension, discontinuance, cancelation or termination that would materially and adversely impair your rights hereunder shall not to that extent be effective without your consent (it being understood, notwithstanding the foregoing proviso, that this Agreement and the Shares shall be subject to the provisions of Sections 17 and 18 of the Plan).
 
 
 
5
 
 
 
(d)           All disputes, controversies and claims arising between you and CyrusOne concerning the subject matter of this Agreement or the Plan shall be settled by arbitration in accordance with the rules and procedures of the American Arbitration Association in effect at the time that the arbitration begins, to the extent not inconsistent with this Agreement or the Plan.  The location of the arbitration shall be Dallas, Texas or such other place as the parties to the dispute may mutually agree.  In rendering any award or ruling, the arbitrator or arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Texas.  The arbitration shall be conducted by an arbitrator selected in accordance with the aforesaid arbitration procedures.  Any arbitration pursuant to this Section 15(d) shall be final and binding on the parties, and judgment upon any award rendered in such arbitration may be entered in any court, Federal or state, having jurisdiction.  The parties to any dispute shall each pay their own costs and expenses (including arbitration fees and attorneys’ fees) incurred in connection with arbitration proceedings and the fees of the arbitrator shall be paid in equal amounts by the parties.  Nothing in this Section 15(d) shall preclude you or CyrusOne from seeking temporary injunctive relief from any Federal or state court located within the State of Texas in connection with or as a supplement to an arbitration hereunder.
 
(e)           You hereby acknowledge that (i) the business of CyrusOne, CyrusOne LP, CyrusOne LLC and each of their respective subsidiaries (the “ CyrusOne Group ”) in which you will be principally engaged is investing in and operating data centers throughout the United States and internationally, (ii) in the course of your employment with any member or members of the CyrusOne Group, you shall be entrusted with or obtain access to information proprietary to members of the CyrusOne Group and have access to and the benefit of goodwill belonging to the CyrusOne Group, (iii) you must not use the proprietary information or goodwill for the benefit of any entity except for the CyrusOne Group, (iv) this Section 15(e) is essential to protect the legitimate business and goodwill of the CyrusOne Group, does not impose an undue hardship on your and will not prevent you from engaging in gainful employment and (v) the Board would not have granted you this award but for the covenants and agreements set forth in this Section 15(e).  Therefore, ancillary to the otherwise enforceable agreements set forth in this Agreement, you hereby agree that at all times during the Term (as herein defined) and the Restricted Period (as herein defined), if applicable, you will not accept employment or engage or participate in any business activity (whether as a principal, partner, joint venturer, agent, employee, salesperson, consultant, independent contractor, director, officer or otherwise) with or as a Competitor (as herein defined) of the CyrusOne Group without the prior written consent of CyrusOne, which would involve you:
 
(A)           providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products competitive with or similar to those services or products with which you had any involvement, and/or regarding which you had any proprietary information, during your employment with any member or members of the CyrusOne Group (including any products or services being researched or developed by the CyrusOne Group during your employment with any member or members of the CyrusOne Group); or
 
 
 
6
 
 
 
 
(B)           providing or performing services that are similar to any services that you provided to or performed for the CyrusOne Group.

“ Competitor ” means any business or entity that, at any time during the one year period following the termination of your employment, provides or seeks to provide, any products or services similar or related to any products sold or any services provided by the CyrusOne Group, including, without limitation, any company or business that provides data colocation services to businesses or entities.
 
“ Term ” means the period commencing on the Award Date and terminating on the date of the cessation of your employment for any reason.
 
“ Restricted Period ” means the one year period following the termination of your employment by the Company for Cause or by you for any reason.
 
The restrictions set forth in this Section 15(e) will be limited to the geographic areas: (i) where you performed services for the CyrusOne Group, (ii) where you served CyrusOne Group customers or clients and/or (iii) otherwise impacted or influenced by your services to the CyrusOne Group.  If any of the provisions in this Section 15(e) conflict with similar provisions in any other document or agreement related to your employment with any member or members of the CyrusOne Group, the provisions of this Agreement will be in addition to and operate independently of any similar provisions; provided, however, that if the restrictions set forth in the other document or agreement at issue are broader in scope (including if such restrictions are longer in duration) than those in this Agreement and are enforceable under applicable law, those restrictions will take precedence and the provisions of this Section 15(e) shall not impair, diminish, restrict or waive any such restrictive covenant or confidentiality obligation by you to the CyrusOne Group, if any.
 
(f)           This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The counterparts shall constitute one and the same instrument, which shall be sufficiently evidenced by any one thereof. Headings used throughout this Agreement are for convenience only and shall not be given legal significance.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “but not limited to”.  The term “or” is not exclusive.
 
 
 

 
 
7
 


Please indicate your acceptance by signing at the place provided and returning this Agreement no later than [Date].
 
      CYRUSONE INC.  
           
Dated:
[Award Date]
 
By:
   
        [Name]  
        [Title]  
           
 
 
      [Employee]:  
         
Dated:
 
 
   
      Accepted and Agreed  
         
         
 
 
 
 
 
8
 
 
 
EXHIBIT A
 
 
To be attached.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
9
Exhibit 10.2
 
 
EMPLOYEE
NON-STATUTORY PERFORMANCE STOCK OPTION AWARD
UNDER THE PROVISIONS OF THE
CYRUSONE 2012 LONG TERM INCENTIVE PLAN

Name of Employee:
[Employee Name]
Award Date:
[Award Date]
Approval Date: [Approval Date]
Target Number of Options:
[Number of Shares]
Maximum Number of Options: [Number of Shares] 

Pursuant to the provisions of the CyrusOne 2012 Long Term Incentive Plan (as in effect from time to time, (the “ Plan ”)), the Board of Directors of CyrusOne Inc. hereby grants to the employee named above (“ you ” or the “ Employee ”) on the date noted above (the “ Award Date ”) options to purchase from CyrusOne Inc. (“ CyrusOne ”) an aggregate number of common shares set forth on Exhibit A attached hereto, par value $.01 per share, of CyrusOne (the “ Shares ”) at the exercise price and on and subject to the terms of the Plan and your agreement to the terms, conditions and restrictions contained herein and subject to the achievement of certain performance-based vesting criteria (each, a “ Performance Goal ”) as set forth on Exhibit A (the “ Options ”).  Capitalized terms used in this performance option award agreement (this “ Agreement ”) that are not defined in this Agreement have the meanings as used or defined in the Plan.

1.     Securities Subject to this Agreement .  The number of Shares to which the Options relate, the exercise price of the Options and the Options themselves will be subject to the adjustment provisions set forth in Section 18 of the Plan.  These Options are intended to be non-statutory stock options.
 
2.     Exercise .  Upon the vesting of any Options as set forth in Section 3, 4, 5, 6 or 7 hereof, as applicable, such portion of the Options to the extent vested, may be exercised, in whole or in part (but for the purchase of whole Shares only), by delivery to CyrusOne of written notice of the number of Shares to be purchased. As soon as administratively practical after the receipt of the written notice and full payment applicable to the exercise of any of the Options, CyrusOne shall deliver to you (or such other person who is exercising the Option, as provided herein) a certificate or book-entry credit representing each acquired Share.  CyrusOne hereby agrees that at all times there shall be reserved for issuance and/or delivery upon exercise of any of the Options such number of Shares as shall be required for issuance or delivery upon exercise thereof.  You must pay for the Shares purchased pursuant to the exercise of the Options hereby granted using any one or more of the methods or any combination of the methods set forth in Section 19.2 of the Plan.  The exercise price of the Options and any applicable taxes required to be withheld upon the exercise of any of the Options must be paid in full at the time of the exercise, pursuant to Section 12 hereof.
 
3.     Performance Vesting and Exercise .

(a)           Except as otherwise provided in any Employment Agreement (as defined in Section 14 hereof) or determined by the Committee in its sole discretion or provided in Section 4, 5, 6 or 7 hereof, subject to the Committee’s determination that the applicable Performance Goal has been attained for the applicable Performance Evaluation Period (as defined in Exhibit A) at a Performance Level (as defined in Exhibit A) that permits vesting, as set forth in Section 3(b) below, on each Vesting Date (as defined in Exhibit A), the Options shall vest with respect to the number of Shares that corresponds to such Performance Level for such Vesting Date, as set forth on Exhibit A, and become exercisable.  In no event shall you have any rights to exercise any of the Options prior to the date such Options vest pursuant to this Agreement.  Your right to exercise any part or all of the Options shall expire ten years from the Award Date, unless sooner terminated or canceled as provided in this Agreement.
 
 
 
1
 
 
 
(b)           On each Determination Date (as defined below), the Committee shall determine whether the applicable Performance Goal has been attained, and the Performance Level at which it has been attained, for the applicable Performance Evaluation Period and shall provide notice to you of such determination as soon as reasonably practicable following such determination in accordance with Section 13 of this Agreement.  “ Determination Date ” means the date as soon as reasonably practicable following the completion of the applicable Performance Evaluation Period, as determined by the Committee, on which the Committee determines whether the applicable Performance Goal has been achieved.
 
(c)           For the avoidance of doubt, to the extent a number of Options vests and becomes exercisable pursuant to the terms of Section 4, 5, 6 or 7 of this Agreement, the number of Options that so vests shall include, but shall not be in addition to, any Options that previously vested and became exercisable pursuant to the terms of Section 3 of this Agreement.

4.     Termination of Restrictions Upon Death .  Except as otherwise provided in any Employment Agreement, in the event of your death while an Employee, then, effective as of the date of your death, the number of Options (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares subject to the Options (as set forth on Exhibit A) as the number of days from the Award Date through the date of your death bears to 1,096 shall vest (to the extent such Options have not earlier vested under the terms of this Agreement) and may be exercised in accordance with Section 2 hereof within one year after the date of your death (but not in any event later than the end of the day immediately preceding the tenth anniversary of the Award Date).  Any Options that remain unvested after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of your date of death in accordance with the terms of Section 8 hereof.  Upon the vesting of certain Options under the first sentence of this Section 4 and subsequent exercise, the executor, administrator or other personal representative of your estate, or the trustee of any trust becoming entitled thereto by reason of your death, may transfer the applicable Shares to any person or persons entitled thereto under your will or under your trust or other instrument (or, in the absence of any will, under the laws of descent and distribution) governing the distribution of your estate in the event of your death.
 
5.     Termination of Restrictions Upon Disability .  Except as otherwise provided in any Employment Agreement, if, pursuant to the applicable disability provision of any Employment Agreement, you become disabled and as a result thereof cease to be an Employee under and pursuant to such provision or, if no such provision exists or you are not party to an Employment Agreement, you become disabled to such extent that you are unable to perform the usual duties of your job for a period of 12 consecutive weeks or more and, as the result thereof, the Committee approves the termination of your employment within the 12-month period following the first day of such 12 consecutive week period, then, effective as of the date you cease to be an Employee as described in this Section 5, the number of Options (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares subject to the Options (as set forth on Exhibit A) as the number of days from the Award Date through the date you cease to be an Employee bears to 1,096 shall vest (to the extent such Options have not earlier vested under the terms this Agreement) and may be exercised in accordance with Section 2 hereof within one year after the date of the termination of your employment due to disability (but not in any event later than the end of the day immediately preceding the tenth anniversary of the Award Date).  Any Options that remain unvested after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.
 
 
 
2
 
 
 
6.            Termination of Restrictions Upon Termination of Employment Other than for Death, Disability or Cause .  Except as otherwise provided in any Employment Agreement, if the Company terminates your employment other than by reason of your death or disability or other than for Cause, then, effective as of the date you cease to be an Employee as described in this Section 6, the number of Options (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares subject to the Options (as set forth on Exhibit A) as the number of days from the Award Date through the date you cease to be an Employee bears to 1,096 shall vest (to the extent such Shares have not earlier vested under the terms of this Agreement) and may be exercised in accordance with Section 2 hereof within one year after the date of the termination of your employment (but not in any event later than the end of the day immediately preceding the tenth anniversary of the Award Date). Any Options that remain unvested after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.  For purposes of this Agreement, “ Cause ” shall have the meaning set forth in any Employment Agreement, or, if you do not have an Employment Agreement, shall mean the occurrence of any one of the following: (i) your material dereliction of your duties, your gross negligence or substantial failure to perform your duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness); (ii) your engaging in (A) misconduct that is materially injurious to the Company or (B) illegal conduct; (iii) your material breach of any written agreement by and between you and the Company; (iv) your violation of any material provision of the Company’s Code of Business Conduct and Ethics; or (v) your willful failure to cooperate in good faith with an investigation by any governmental authority.
 
7.            Termination of Restrictions Upon Change in Control .  If a Change in Control occurs, then, except as otherwise provided in any Employment Agreement, this award will be treated as provided in Section 17 of the Plan, provided , however , that, subject to the terms of any Employment Agreement and notwithstanding any other provision of this Agreement to the contrary, in the event that within twelve months following a Change in Control your employment is terminated by the Company other than for Cause,  then, effective as of the date of such termination, the number of Options (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares subject to the Options (as set forth on Exhibit A) as the number of days from the Award Date through the date you cease to be an Employee bears to 1,096 shall vest (to the extent such Shares have not earlier vested under the terms of this Agreement) and may be exercised in accordance with Section 2 hereof within one year after the date of the termination of your employment (but not in any event later than the end of the day immediately preceding the tenth anniversary of the Award Date).
 
 
 
3
 
 
 
8.            Forfeiture .  Except as otherwise determined by the Committee or provided in Sections 3, 4, 5, 6 and 7 hereof or any Employment Agreement, any Options that remain unvested on the date you cease to be an Employee shall be forfeited to CyrusOne as of such date and, upon such forfeiture, all of your rights in respect of such Options shall cease automatically and without further action by CyrusOne or you.
 
9.            Employment .  For purposes of this Agreement, you shall be deemed to be an “Employee” while, and only while, you are in the employ of the Company and considered to be employed under the policies and procedures (including the payroll and withholding procedures) of the Company.  In this regard, the granting of this Agreement does not constitute a contract of employment and does not give you the legal right to be continued as an Employee.
 
10.          Matters Relating to Certificates .  On or following the date of this Agreement, any Shares issued to you upon the exercise of the Options in accordance with and subject to this Agreement shall be evidenced in such manner as CyrusOne shall determine.
 
11.          Interpretation .  You acknowledge that the Committee has the authority to construe and interpret the terms of the Plan and this Agreement if and when any questions of meaning arises under the Plan or this Agreement, and any such construction or interpretation shall be binding on you, your heirs, executors, administrators, personal representatives and any other persons having or claiming to have an interest in the Options.
 
12.          Withholding .  In the event that the award and receipt of the Options, the vesting or exercise of any Options, the payment of dividends after the exercise of any Options or any other event results in your realization of income or wages which for federal, state and/or local income or other employment tax purposes is, in the opinion of the Company, subject to withholding of tax by the Company, you shall pay to the Company an amount equal to the withholding tax amount that the Company determines applies with respect to such event or make arrangements satisfactory to the Company regarding the payment of such tax, which arrangements may include your agreement to surrender Shares issued or delivered upon the exercise of Options that have vested.  Otherwise, the Company may, at its discretion and to the extent it determines is necessary to pay such withholding tax amount, withhold any such withholding tax amount from your salary, any Shares issued or delivered upon the exercise of Options that have vested or any other compensation payable to you.
 
13.          Notices .  All notices and other communications to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, first class postage prepaid, and addressed as follows:
 
 
TO CYRUSONE:
CyrusOne Inc.
 
 
Kimberly Sheehy
 
 
1649 Frankford Road
 
 
Carrollton, TX 75007

 
TO THE EMPLOYEE:
Employee Name
   
Address
 
or to any other address as to which notice has been given in the manner herein provided.
 
 
 
4
 

 
14.          Effect of Employment Agreement .  Notwithstanding any of the terms of the foregoing sections of this Agreement, if the provisions of a written employment agreement between you and the Company (any such agreement, an “ Employment Agreement ”) would require that any Options will vest or be exercisable on a date that occurs on or before the date the Options would have vested, become exercisable or been forfeited, in each case, under the terms of the foregoing sections of this Agreement, or would require that you be deemed to be employed by the Company until a date later than the actual date on which your employment terminates for purposes of determining the extent to which and the date on which the Options would vest, become exercisable or be forfeited, then such Employment Agreement provisions shall control (and shall be deemed an amendment to this Agreement and incorporated herein by reference), provided, however that notwithstanding any provision of this Agreement to the contrary, all Options shall automatically expire on the tenth anniversary of the Award Date.  In the event of any conflict between the terms of the Plan, on the one hand, and the terms of this Agreement or any Employment Agreement, on the other hand, the terms of the Plan shall govern.  In the event of any conflict between the terms of this Agreement and the terms of any Employment Agreement, the terms of such Employment Agreement shall govern.
 
15.          Miscellaneous .

(a)           The Options are intended to be non-statutory stock options for purposes of the Plan.  Unless otherwise provided by the Committee in its discretion, Options may not be sold, assigned alienated, transferred, pledged, attached or otherwise encumbered except as provided in Section 16 of the Plan.  You shall not have any rights or privileges of a stockholder with respect to the Options subject to this Agreement, including the right to vote the Shares or to receive dividend with respect to the Shares, unless, until and only to the extent that certificates representing Shares are actually issued and delivered to you or your legal representative upon exercise of this award.  On or after delivery of Shares, you shall have, with respect to Shares delivered, all of the rights of a stockholder of CyrusOne, including the right to vote the Shares and the right to receive dividends with respect to the Shares.
 
(b)      This Agreement shall be binding upon the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and assigns.  Subject to the provisions of the Plan and any applicable Employment Agreement, this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall be construed and interpreted in accordance with the laws of the State of Texas.  If any provisions of this Agreement shall be deemed to be invalid or void under any applicable law, the remaining provisions hereof shall not be affected thereby and shall continue in full force and effect.  In the event you fail to sign and return this Agreement to CyrusOne within one month of the Award Date, the Options and the number of Shares to which the Options relate shall be forfeited to CyrusOne and this Agreement shall become immediately void and of no further force or effect.
 
(c)           The Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate this Agreement prospectively or retroactively; provided, however, that any such waiver, amendment, alteration, suspension, discontinuance, cancelation or termination that would materially and adversely impair your rights hereunder shall not to that extent be effective without your consent (it being understood, notwithstanding the foregoing proviso, that this Agreement and the Shares shall be subject to the provisions of Sections 17 and 18 of the Plan).
 
 
 
5
 
 
 
(d)           All disputes, controversies and claims arising between you and CyrusOne concerning the subject matter of this Agreement or the Plan shall be settled by arbitration in accordance with the rules and procedures of the American Arbitration Association in effect at the time that the arbitration begins, to the extent not inconsistent with this Agreement or the Plan.  The location of the arbitration shall be Dallas, Texas or such other place as the parties to the dispute may mutually agree.  In rendering any award or ruling, the arbitrator or arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Texas.  The arbitration shall be conducted by an arbitrator selected in accordance with the aforesaid arbitration procedures.  Any arbitration pursuant to this Section 15(d) shall be final and binding on the parties, and judgment upon any award rendered in such arbitration may be entered in any court, Federal or state, having jurisdiction.  The parties to any dispute shall each pay their own costs and expenses (including arbitration fees and attorneys’ fees) incurred in connection with arbitration proceedings and the fees of the arbitrator shall be paid in equal amounts by the parties.  Nothing in this Section 15(d) shall preclude you or CyrusOne from seeking temporary injunctive relief from any Federal or state court located within the State of Texas in connection with or as a supplement to an arbitration hereunder.
 
(e)           You hereby acknowledge that (i) the business of CyrusOne, CyrusOne LP, CyrusOne LLC and each of their respective subsidiaries (the “ CyrusOne Group ”) in which you will be principally engaged is investing in and operating data centers throughout the United States and internationally, (ii) in the course of your employment with any member or members of the CyrusOne Group, you shall be entrusted with or obtain access to information proprietary to members of the CyrusOne Group and have access to and the benefit of goodwill belonging to the CyrusOne Group, (iii) you must not use the proprietary information or goodwill for the benefit of any entity except for the CyrusOne Group, (iv) this Section 15(e) is essential to protect the legitimate business and goodwill of the CyrusOne Group, does not impose an undue hardship on your and will not prevent you from engaging in gainful employment and (v) the Board would not have granted you this award but for the covenants and agreements set forth in this Section 15(e).  Therefore, ancillary to the otherwise enforceable agreements set forth in this Agreement, you hereby agree that at all times during the Term (as herein defined) and the Restricted Period (as herein defined), if applicable, you will not accept employment or engage or participate in any business activity (whether as a principal, partner, joint venturer, agent, employee, salesperson, consultant, independent contractor, director, officer or otherwise) with or as a Competitor (as herein defined) of the CyrusOne Group without the prior written consent of CyrusOne, which would involve you:
 
(A)           providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products competitive with or similar to those services or products with which you had any involvement, and/or regarding which you had any proprietary information, during your employment with any member or members of the CyrusOne Group (including any products or services being researched or developed by the CyrusOne Group during your employment with any member or members of the CyrusOne Group); or
 
 
 
6
 
 
 
(B)           providing or performing services that are similar to any services that you provided to or performed for the CyrusOne Group.

“ Competitor ” means any business or entity that, at any time during the one year period following the termination of your employment, provides or seeks to provide, any products or services similar or related to any products sold or any services provided by the CyrusOne Group, including, without limitation, any company or business that provides data colocation services to businesses or entities.
 
“ Term ” means the period commencing on the Award Date and terminating on the date of the cessation of your employment for any reason.
 
“ Restricted Period ” means the one year period following the termination of your employment by the Company for Cause or by you for any reason.
 
The restrictions set forth in this Section 15(e) will be limited to the geographic areas: (i) where you performed services for the CyrusOne Group, (ii) where you served CyrusOne Group customers or clients and/or (iii) otherwise impacted or influenced by your services to the CyrusOne Group.  If any of the provisions in this Section 15(e) conflict with similar provisions in any other document or agreement related to your employment with any member or members of the CyrusOne Group, the provisions of this Agreement will be in addition to and operate independently of any similar provisions; provided, however, that if the restrictions set forth in the other document or agreement at issue are broader in scope (including if such restrictions are longer in duration) than those in this Agreement and are enforceable under applicable law, those restrictions will take precedence and the provisions of this Section 15(e) shall not impair, diminish, restrict or waive any such restrictive covenant or confidentiality obligation by you to the CyrusOne Group, if any.
 
(f)           This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The counterparts shall constitute one and the same instrument, which shall be sufficiently evidenced by any one thereof. Headings used throughout this Agreement are for convenience only and shall not be given legal significance.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “but not limited to”.  The term “or” is not exclusive.
 
 
 
 
7
 
 

Please indicate your acceptance by signing at the place provided and returning this Agreement no later than [Date].
 
      CYRUSONE INC.  
           
Dated:
[Award Date]
 
By:
   
        [Name]  
        [Title]  
           
 
      [Employee]:  
         
Dated:
 
 
   
      Accepted and Agreed  
         
         
 
 
 
 
 
8
 
 
 
EXHIBIT A
 
 
To be attached.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
9
Exhibit 10.3
EXECUTIVE
PERFORMANCE RESTRICTED STOCK AWARD
UNDER THE PROVISIONS OF THE
CYRUSONE 2012 LONG TERM INCENTIVE PLAN

Name of Employee:
[Employee Name]
Award Date:
[Award Date]
Approval Date: [Approval Date]
Target Number of Restricted Shares:
[Number of Shares]
Maximum Number of Restricted Shares:
[Number of Shares]
 
Pursuant to the provisions of the CyrusOne 2012 Long Term Incentive Plan (as in effect from time to time (the “ Plan ”)), the Board of Directors of CyrusOne Inc. hereby grants to the employee named above (“ you ” or the “ Employee ”) on the date noted above (the “ Award Date ”) an award of an aggregate number of restricted common shares set forth on Exhibit A attached hereto, par value $.01 per share, of CyrusOne Inc. (the “ Shares ”), on and subject to the terms of the Plan and your agreement to the terms, conditions and restrictions contained herein and subject to the achievement of certain performance-based vesting criteria (each, a “ Performance Goal ”) as set forth on Exhibit A.  Capitalized terms used in this performance restricted stock award agreement (this “ Agreement ”) that are not defined in this Agreement have the meanings as used or defined in the Plan.

1.            Securities Subject to this Agreement .  This Agreement is made with respect to the Shares and any securities (including Shares of CyrusOne Inc. (“ CyrusOne ”)) issued in respect of the Shares, whether by way of a share dividend, a share split, any reorganization or re-capitalization of CyrusOne or its stock or any merger, exchange of securities or like event or transaction as the result of which any security or securities of any kind are issued to you by reason of your ownership of the Shares.  Any such securities issued in respect of any of the Shares shall be subject to the same restrictions, terms and conditions set forth in this Agreement, and shall be administered in the same manner, as the Shares to which they relate.  References in the following terms of this Agreement to the Shares shall include any such securities issued in respect of the Shares.

2.            Rights of Ownership .  Subject to the achievement of the applicable Performance Goal, except for the Restrictions (as defined in Section 8 hereof), you are the record and beneficial owner of the Shares, with all the rights and privileges appertaining thereto, including the right to vote the Shares, provided, however, that, to the extent the Restrictions have yet to lapse and thereby terminate and be of no further force or effect with respect to any Share, any dividends paid with respect to such Share, shall be accrued by the Company and shall be distributed to you on the applicable Vesting Date (as defined in Exhibit A); provided that such dividends shall not be paid unless, until and only to the extent that the applicable Performance Goal has been attained.

3.            Performance Vesting .

(a)           Except as otherwise provided in any Employment Agreement (as defined in Section 14 hereof) or determined by the Committee in its sole discretion or provided in Section 4, 5, 6 or 7 hereof, subject to the Committee’s determination that the applicable Performance Goal has been attained for the applicable Performance Evaluation Period (as defined in Exhibit A) at a Performance Level (as defined in Exhibit A) that permits vesting, as set forth in Section 3(b) below, on each Vesting Date, the number of Shares that corresponds to such Performance Level for such Vesting Date, as set forth on Exhibit A, shall vest and the Restrictions shall lapse and thereby terminate and be of no further force or effect on the applicable Vesting Date, provided that you are continuously employed by the Company through such Vesting Date.
 
 
 
1
 

 
(b)           On each Determination Date (as defined below), the Committee shall determine whether the applicable Performance Goal has been attained, and the Performance Level at which it has been attained, for the applicable Performance Evaluation Period and shall provide notice to you of such determination as soon as reasonably practicable following such determination in accordance with Section 13 of this Agreement.  “ Determination Date ” means the date as soon as reasonably practicable following the completion of the applicable Performance Evaluation Period, as determined by the Committee, on which the Committee determines whether the applicable Performance Goal has been achieved.

(c)           For the avoidance of doubt, to the extent a number of Shares vests pursuant to the terms of Section 4, 5, 6 or 7 of this Agreement, the number of Shares that so vests shall include, but shall not be in addition to, any Shares that previously vested pursuant to the terms of Section 3 of this Agreement.

4.            Termination of Restrictions Upon Death .  Except as otherwise provided in any Employment Agreement, in the event of your death while an Employee, then, effective as of the date of your death, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of Section 3 hereof) shall lapse and thereby terminate and be of no further force or effect with respect to the number of Shares (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares (as set forth on Exhibit A) as the number of days from the Award Date through the date of your death bears to 1,096.  Any Shares that remain subject to the Restrictions after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of your date of death in accordance with the terms of Section 8 hereof.  Upon the Restrictions terminating with respect to certain Shares under the first sentence of this Section 4, the executor, administrator or other personal representative of your estate, or the trustee of any trust becoming entitled thereto by reason of your death, may transfer the applicable Shares to any person or persons entitled thereto under your will or under your trust or other instrument (or, in the absence of any will, under the laws of descent and distribution) governing the distribution of your estate in the event of your death.

5.            Termination of Restrictions Upon Disability .  Except as otherwise provided in any Employment Agreement, if, pursuant to the applicable disability provision of any Employment Agreement, you become disabled and as a result thereof cease to be an Employee under and pursuant to such provision or, if no such provision exists or you are not party to an Employment Agreement, you become disabled to such extent that you are unable to perform the usual duties of your job for a period of 12 consecutive weeks or more and, as the result thereof, the Committee approves the termination of your employment within the 12-month period following the first day of such 12 consecutive week period, then, effective as of the date you cease to be an Employee as described in this Section 5, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of Section 3 hereof) shall lapse and thereby terminate and be of no further force or effect with respect to the number of Shares (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares (as set forth on Exhibit A) as the number of days from the Award Date through the date you cease to be an Employee bears to 1,096.  Any Shares that remain subject to the Restrictions after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.
 
 
 
2
 

 
6.            Termination of Restrictions Upon Termination of Employment Other than for Death, Disability or Cause .  Except as otherwise provided in any Employment Agreement, if the Company terminates your employment other than by reason of your death or disability or other than for Cause, then, effective as of the date you cease to be an Employee as described in this Section 6, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of Section 3 hereof) shall lapse and thereby terminate and be of no further force or effect with respect to the target number of Shares (as set forth on Exhibit A).  Any Shares that remain subject to the Restrictions after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.  For purposes of this Agreement, “ Cause ” shall have the meaning set forth in any Employment Agreement, or, if you do not have an Employment Agreement, shall mean the occurrence of any one of the following: (i) your material dereliction of your duties, your gross negligence or substantial failure to perform your duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness); (ii) your engaging in (A) misconduct that is materially injurious to the Company or (B) illegal conduct; (iii) your material breach of any written agreement by and between you and the Company; (iv) your violation of any material provision of the Company’s Code of Business Conduct and Ethics; or (v) your willful failure to cooperate in good faith with an investigation by any governmental authority.

7.            Termination of Restrictions Upon Change in Control .  If a Change in Control occurs, then, except as otherwise provided in any Employment Agreement, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of Section 3 hereof) shall lapse and thereby terminate and be of no further force or effect with respect to the target number of Shares (as set forth on Exhibit A); provided , however , that, subject to the terms of any Employment Agreement and notwithstanding any other provision of this Agreement to the contrary, in the event that within twenty-four months following a Change in Control your employment is terminated by the Company other than for Cause,  then, effective as of the date of such termination, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of this Agreement, including in connection with the Change in Control event) shall lapse and thereby terminate and be of no further force or effect with respect to the maximum number of Shares (as set forth on Exhibit A).  Any Shares that remain subject to the Restrictions after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.

8.            Forfeiture .  The Shares and any interest therein shall be subject to the forfeiture and transfer restrictions as described in this Section 8 (the “ Restrictions ”). Except as otherwise determined by the Committee or provided in Sections 3, 4, 5, 6 and 7 hereof or any Employment Agreement, any Shares that remain subject to the Restrictions on the date you cease to be an Employee shall be forfeited to CyrusOne as of such date and, upon such forfeiture, all of your rights in respect of such Shares shall cease automatically and without further action by CyrusOne or you.  In addition, except as otherwise determined by the Committee or provided in Section 16 of the Plan, any Shares that remain subject to Restrictions may not be transferred, sold, assigned alienated, transferred, pledged, attached, conveyed or otherwise encumbered by you in any manner whatsoever and whether or not for consideration.  For the purpose of giving effect to this provision, you must execute and deliver to CyrusOne a stock power with respect to each certificate evidencing any of the Shares, thereby assigning to CyrusOne all of your interest in the Shares.  By the execution and delivery of this Agreement, you authorize and empower CyrusOne, in the event of a forfeiture of any of the Shares under this Section 8 to (i) date (as of the date you cease to be an Employee) those stock powers relating to Shares that remain subject to the Restrictions as of the date you cease to be an Employee and (ii) present such stock powers and the certificates to which they relate to CyrusOne’s transfer agent or other appropriate party for the sole purpose of transferring the forfeited Shares to CyrusOne.  Notwithstanding anything herein to the contrary, in the event the initial public offering of common stock of CyrusOne is not consummated, all Shares shall be forfeited to CyrusOne.
 
 
 
3
 

 
9.            Employment .  For purposes of this Agreement, you shall be deemed to be an “Employee” while, and only while, you are in the employ of the Company and considered to be employed under the policies and procedures (including the payroll and withholding procedures) of the Company.  In this regard, the granting of this Agreement does not constitute a contract of employment and does not give you the legal right to be continued as an Employee.

10.           Matters Relating to Certificates .  (a) On or following the date of this Agreement, any Shares issued to you in accordance with and subject to this Agreement shall be evidenced in such manner as CyrusOne shall determine.

(b)           Each certificate or book entry credit issued or entered in respect of any Shares issued to you in accordance with this Agreement shall bear the following legend:

“The Shares evidenced by this certificate are subject to the terms of a Restricted Stock Agreement between the registered holder hereof and CyrusOne Inc., dated as of [Award Date], and may not be transferred by the holder, except as provided by the terms of such agreement, a copy of which is on deposit with the Secretary of CyrusOne Inc. and which will be mailed to a shareholder of CyrusOne Inc. without charge within five days after receipt of a written request.”

(c)           CyrusOne shall require that the certificates or book entry credits evidencing title of the Shares be held in custody by CyrusOne until such time, if any, as your rights with respect to the Shares have vested, and CyrusOne may require that, as a condition of your receiving the Shares you shall have delivered to CyrusOne a stock power, endorsed in blank, relating to such Shares.  To the extent that your rights with respect to the Shares become vested, the legend set forth above shall be removed from the certificates or book entry credits evidencing such Shares.

11.            Interpretation .  You acknowledge that the Committee has the authority to construe and interpret the terms of the Plan and this Agreement if and when any questions of meaning arises under the Plan or this Agreement, and any such construction or interpretation shall be binding on you, your heirs, executors, administrators, personal representatives and any other persons having or claiming to have an interest in the Shares.
 
 
 
4
 

 
12.            Withholding .  In the event that the award and receipt of the Shares, the expiration of the Restrictions, the payment of dividends on the Shares or any other event results in your realization of income or wages which for federal, state and/or local income or other employment tax purposes is, in the opinion of the Company, subject to withholding of tax by the Company, you shall pay to the Company an amount equal to the withholding tax amount that the Company determines applies with respect to such event or make arrangements satisfactory to the Company regarding the payment of such tax, which arrangements may include your agreement to surrender the Shares that have become free of the Restrictions.  Otherwise, the Company may, at its discretion and to the extent it determines is necessary to pay such withholding tax amount, withhold any such withholding tax amount from your salary, dividends paid by CyrusOne on the Shares, any Shares that have become free of the Restrictions or any other compensation payable to you.

13.            Notices .  All notices and other communications to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, first class postage prepaid, and addressed as follows:
 
  TO CYRUSONE: CyrusOne Inc.
    Kimberly Sheehy
    1649 Frankford Road
    Carrollton, TX 75007
     
  TO THE EMPLOYEE: Employee Name
    Address
     
or to any other address as to which notice has been given in the manner herein provided.

14.            Effect of Employment Agreement .  Notwithstanding any of the terms of the foregoing sections of this Agreement, if the provisions of a written employment agreement between you and the Company (any such agreement, an “ Employment Agreement ”) would require that the Restrictions that apply to any Shares will lapse on a date that occurs on or before the date the Restrictions would have lapsed or the Shares would have been forfeited, in each case, under the terms of the foregoing sections of this Agreement, or would require that you be deemed to be employed by the Company until a date later than the actual date on which your employment terminates for purposes of determining the extent to which and the date on which the Restrictions would lapse or the Shares would be forfeited, then such Employment Agreement provisions shall control (and shall be deemed an amendment to this Agreement and incorporated herein by reference).  In the event of any conflict between the terms of the Plan, on the one hand, and the terms of this Agreement or any Employment Agreement, on the other hand, the terms of the Plan shall govern.  In the event of any conflict between the terms of this Agreement and the terms of any Employment Agreement, the terms of such Employment Agreement shall govern.

15.            Miscellaneous .

(a)           The Shares are intended to be Performance Awards for purposes of the Plan and the Committee may, in its discretion, determine that all or a portion of the Shares are intended to qualify as “qualified performance-based compensation” under Section 162(m) of the Code, in which case, the Shares will be governed by the terms and conditions of the Plan applicable to qualified performance-based compensation, including Sections 6.2 and 15.4 of the Plan.  You hereby acknowledge and agree that you will not make an election under Section 83(b) of the Code with respect to the receipt of any of the Shares without the consent of the Committee, which the Committee may grant or withhold in its sole discretion.
 
 
 
5
 

 
(b) This Agreement shall be binding upon the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and assigns.  Subject to the provisions of the Plan and any applicable Employment Agreement, this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall be construed and interpreted in accordance with the laws of the State of Texas.  If any provisions of this Agreement shall be deemed to be invalid or void under any applicable law, the remaining provisions hereof shall not be affected thereby and shall continue in full force and effect.  In the event you fail to sign and return this Agreement to CyrusOne within one month of the Award Date, the Shares shall be forfeited to CyrusOne and this Agreement shall become immediately void and of no further force or effect.

(c)           The Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate this Agreement prospectively or retroactively; provided, however, that any such waiver, amendment, alteration, suspension, discontinuance, cancelation or termination that would materially and adversely impair your rights hereunder shall not to that extent be effective without your consent (it being understood, notwithstanding the foregoing proviso, that this Agreement and the Shares shall be subject to the provisions of Sections 17 and 18 of the Plan).

(d)           All disputes, controversies and claims arising between you and CyrusOne concerning the subject matter of this Agreement or the Plan shall be settled by arbitration in accordance with the rules and procedures of the American Arbitration Association in effect at the time that the arbitration begins, to the extent not inconsistent with this Agreement or the Plan.  The location of the arbitration shall be Dallas, Texas or such other place as the parties to the dispute may mutually agree.  In rendering any award or ruling, the arbitrator or arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Texas.  The arbitration shall be conducted by an arbitrator selected in accordance with the aforesaid arbitration procedures.  Any arbitration pursuant to this Section 15(d) shall be final and binding on the parties, and judgment upon any award rendered in such arbitration may be entered in any court, Federal or state, having jurisdiction.  The parties to any dispute shall each pay their own costs and expenses (including arbitration fees and attorneys’ fees) incurred in connection with arbitration proceedings and the fees of the arbitrator shall be paid in equal amounts by the parties.  Nothing in this Section 15(d) shall preclude you or CyrusOne from seeking temporary injunctive relief from any Federal or state court located within the State of Texas in connection with or as a supplement to an arbitration hereunder.

(e)           You hereby acknowledge that (i) the business of CyrusOne, CyrusOne LP, CyrusOne LLC and each of their respective subsidiaries (the “ CyrusOne Group ”) in which you will be principally engaged is investing in and operating data centers throughout the United States and internationally, (ii) in the course of your employment with any member or members of the CyrusOne Group, you shall be entrusted with or obtain access to information proprietary to members of the CyrusOne Group and have access to and the benefit of goodwill belonging to the CyrusOne Group, (iii) you must not use the proprietary information or goodwill for the benefit of any entity except for the CyrusOne Group, (iv) this Section 15(e) is essential to protect the legitimate business and goodwill of the CyrusOne Group, does not impose an undue hardship on your and will not prevent you from engaging in gainful employment and (v) the Board would not have granted you this award but for the covenants and agreements set forth in this Section 15(e).  Therefore, ancillary to the otherwise enforceable agreements set forth in this Agreement, you hereby agree that at all times during the Term (as herein defined) and the Restricted Period (as herein defined), if applicable, you will not accept employment or engage or participate in any business activity (whether as a principal, partner, joint venturer, agent, employee, salesperson, consultant, independent contractor, director, officer or otherwise) with or as a Competitor (as herein defined) of the CyrusOne Group without the prior written consent of CyrusOne, which would involve you:
 
 
 
6
 

 
(A)           providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products competitive with or similar to those services or products with which you had any involvement, and/or regarding which you had any proprietary information, during your employment with any member or members of the CyrusOne Group (including any products or services being researched or developed by the CyrusOne Group during your employment with any member or members of the CyrusOne Group); or

(B)           providing or performing services that are similar to any services that you provided to or performed for the CyrusOne Group.

“ Competitor ” means any business or entity that, at any time during the one year period following the termination of your employment, provides or seeks to provide, any products or services similar or related to any products sold or any services provided by the CyrusOne Group, including, without limitation, any company or business that provides data colocation services to businesses or entities.

“ Term ” means the period commencing on the Award Date and terminating on the date of the cessation of your employment for any reason.

“ Restricted Period ” means the one year period following the termination of your employment by the Company for Cause or by you for any reason.

The restrictions set forth in this Section 15(e) will be limited to the geographic areas: (i) where you performed services for the CyrusOne Group, (ii) where you served CyrusOne Group customers or clients and/or (iii) otherwise impacted or influenced by your services to the CyrusOne Group.  If any of the provisions in this Section 15(e) conflict with similar provisions in any other document or agreement related to your employment with any member or members of the CyrusOne Group, the provisions of this Agreement will be in addition to and operate independently of any similar provisions; provided, however, that if the restrictions set forth in the other document or agreement at issue are broader in scope (including if such restrictions are longer in duration) than those in this Agreement and are enforceable under applicable law, those restrictions will take precedence and the provisions of this Section 15(e) shall not impair, diminish, restrict or waive any such restrictive covenant or confidentiality obligation by you to the CyrusOne Group, if any.
 
 
 
7
 

 
(f)           This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The counterparts shall constitute one and the same instrument, which shall be sufficiently evidenced by any one thereof. Headings used throughout this Agreement are for convenience only and shall not be given legal significance.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “but not limited to”.  The term “or” is not exclusive.


 
8
 
 

Please indicate your acceptance by signing at the place provided and returning this Agreement no later than [Date].
 
      CYRUSONE INC.  
           
Dated:
[Award Date]
 
By:
   
        [Name]  
        [Title]  
           
           
      [Employee]:  
         
Dated:
       
 
 
 
Accepted and Agreed  
         
         
         
 

 
 
9
 
 
EXHIBIT A
To be attached.
 
 
 
 
 
 
 
 
 
 
 
10
Exhibit 10.4
EMPLOYEE
PERFORMANCE RESTRICTED STOCK AWARD
UNDER THE PROVISIONS OF THE
CYRUSONE 2012 LONG TERM INCENTIVE PLAN

Name of Employee:
[Employee Name]
Award Date:
[Award Date]
Approval Date: [Approval Date]
Target Number of Restricted Shares:
[Number of Shares]
Maximum Number of Restricted Shares:
[Number of Shares]
 
Pursuant to the provisions of the CyrusOne 2012 Long Term Incentive Plan (as in effect from time to time (the “ Plan ”)), the Board of Directors of CyrusOne Inc. hereby grants to the employee named above (“ you ” or the “ Employee ”) on the date noted above (the “ Award Date ”) an award of an aggregate number of restricted common shares set forth on Exhibit A attached hereto, par value $.01 per share, of CyrusOne Inc. (the “ Shares ”), on and subject to the terms of the Plan and your agreement to the terms, conditions and restrictions contained herein and subject to the achievement of certain performance-based vesting criteria (each, a “ Performance Goal ”) as set forth on Exhibit A.  Capitalized terms used in this performance restricted stock award agreement (this “ Agreement ”) that are not defined in this Agreement have the meanings as used or defined in the Plan.

1.            Securities Subject to this Agreement .  This Agreement is made with respect to the Shares and any securities (including Shares of CyrusOne Inc. (“ CyrusOne ”)) issued in respect of the Shares, whether by way of a share dividend, a share split, any reorganization or re-capitalization of CyrusOne or its stock or any merger, exchange of securities or like event or transaction as the result of which any security or securities of any kind are issued to you by reason of your ownership of the Shares.  Any such securities issued in respect of any of the Shares shall be subject to the same restrictions, terms and conditions set forth in this Agreement, and shall be administered in the same manner, as the Shares to which they relate.  References in the following terms of this Agreement to the Shares shall include any such securities issued in respect of the Shares.

2.            Rights of Ownership .  Subject to the achievement of the applicable Performance Goal, except for the Restrictions (as defined in Section 8 hereof), you are the record and beneficial owner of the Shares, with all the rights and privileges appertaining thereto, including the right to vote the Shares, provided, however, that, to the extent the Restrictions have yet to lapse and thereby terminate and be of no further force or effect with respect to any Share, any dividends paid with respect to such Share, shall be accrued by the Company and shall be distributed to you on the applicable Vesting Date (as defined in Exhibit A); provided that such dividends shall not be paid unless, until and only to the extent that the applicable Performance Goal has been attained.

3.            Performance Vesting .

(a)           Except as otherwise provided in any Employment Agreement (as defined in Section 14 hereof) or determined by the Committee in its sole discretion or provided in Section 4, 5, 6 or 7 hereof, subject to the Committee’s determination that the applicable Performance Goal has been attained for the applicable Performance Evaluation Period (as defined in Exhibit A) at a Performance Level (as defined in Exhibit A) that permits vesting, as set forth in Section 3(b) below, on each Vesting Date, the number of Shares that corresponds to such Performance Level for such Vesting Date, as set forth on Exhibit A, shall vest and the Restrictions shall lapse and thereby terminate and be of no further force or effect on the applicable Vesting Date, provided that you are continuously employed by the Company through such Vesting Date.
 
 
 
 
 

 
(b)           On each Determination Date (as defined below), the Committee shall determine whether the applicable Performance Goal has been attained, and the Performance Level at which it has been attained, for the applicable Performance Evaluation Period and shall provide notice to you of such determination as soon as reasonably practicable following such determination in accordance with Section 13 of this Agreement.  “ Determination Date ” means the date as soon as reasonably practicable following the completion of the applicable Performance Evaluation Period, as determined by the Committee, on which the Committee determines whether the applicable Performance Goal has been achieved.

(c)           For the avoidance of doubt, to the extent a number of Shares vests pursuant to the terms of Section 4, 5, 6 or 7 of this Agreement, the number of Shares that so vests shall include, but shall not be in addition to, any Shares that previously vested pursuant to the terms of Section 3 of this Agreement.

4.            Termination of Restrictions Upon Death .  Except as otherwise provided in any Employment Agreement, in the event of your death while an Employee, then, effective as of the date of your death, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of Section 3 hereof) shall lapse and thereby terminate and be of no further force or effect with respect to the number of Shares (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares (as set forth on Exhibit A) as the number of days from the Award Date through the date of your death bears to 1,096.  Any Shares that remain subject to the Restrictions after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of your date of death in accordance with the terms of Section 8 hereof.  Upon the Restrictions terminating with respect to certain Shares under the first sentence of this Section 4, the executor, administrator or other personal representative of your estate, or the trustee of any trust becoming entitled thereto by reason of your death, may transfer the applicable Shares to any person or persons entitled thereto under your will or under your trust or other instrument (or, in the absence of any will, under the laws of descent and distribution) governing the distribution of your estate in the event of your death.

5.            Termination of Restrictions Upon Disability .  Except as otherwise provided in any Employment Agreement, if, pursuant to the applicable disability provision of any Employment Agreement, you become disabled and as a result thereof cease to be an Employee under and pursuant to such provision or, if no such provision exists or you are not party to an Employment Agreement, you become disabled to such extent that you are unable to perform the usual duties of your job for a period of 12 consecutive weeks or more and, as the result thereof, the Committee approves the termination of your employment within the 12-month period following the first day of such 12 consecutive week period, then, effective as of the date you cease to be an Employee as described in this Section 5, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of Section 3 hereof) shall lapse and thereby terminate and be of no further force or effect with respect to the number of Shares (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares (as set forth on Exhibit A) as the number of days from the Award Date through the date you cease to be an Employee bears to 1,096.  Any Shares that remain subject to the Restrictions after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.
 
 
 
2
 

 
6.            Termination of Restrictions Upon Termination of Employment Other than for Death, Disability or Cause .  Except as otherwise provided in any Employment Agreement, if the Company terminates your employment other than by reason of your death or disability or other than for Cause, then, effective as of the date you cease to be an Employee as described in this Section 6, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of Section 3 hereof) shall lapse and thereby terminate and be of no further force or effect with respect to the number of Shares (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares (as set forth on Exhibit A) as the number of days from the Award Date through the date you cease to be an Employee bears to 1,096.  Any Shares that remain subject to the Restrictions after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.  For purposes of this Agreement, “ Cause ” shall have the meaning set forth in any Employment Agreement, or, if you do not have an Employment Agreement, shall mean the occurrence of any one of the following: (i) your material dereliction of your duties, your gross negligence or substantial failure to perform your duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness); (ii) your engaging in (A) misconduct that is materially injurious to the Company or (B) illegal conduct; (iii) your material breach of any written agreement by and between you and the Company; (iv) your violation of any material provision of the Company’s Code of Business Conduct and Ethics; or (v) your willful failure to cooperate in good faith with an investigation by any governmental authority.

7.            Termination of Restrictions Upon Change in Control .  If a Change in Control occurs, then, except as otherwise provided in any Employment Agreement, this award will be treated as provided in Section 17 of the Plan; provided , however , that, subject to the terms of any Employment Agreement and notwithstanding any other provision of this Agreement to the contrary, in the event that within twelve months following a Change in Control your employment is terminated by the Company other than for Cause,  then, effective as of the date of such termination, the Restrictions (to the extent the Restrictions have not earlier terminated under the terms of this Agreement, including in connection with the Change in Control event) shall lapse and thereby terminate and be of no further force or effect with respect to the number of Shares (rounded up to the nearest whole Share) that bears the same ratio to the target number of Shares (as set forth on Exhibit A) as the number of days from the Award Date through the date you cease to be an Employee bears to 1,096.  Any Shares that remain subject to the Restrictions after the calculation described in the preceding sentence shall be forfeited to CyrusOne as of the date you cease to be an Employee in accordance with the terms of Section 8 hereof.

8.            Forfeiture .  The Shares and any interest therein shall be subject to the forfeiture and transfer restrictions as described in this Section 8 (the “ Restrictions ”). Except as otherwise determined by the Committee or provided in Sections 3, 4, 5, 6 and 7 hereof or any Employment Agreement, any Shares that remain subject to the Restrictions on the date you cease to be an Employee shall be forfeited to CyrusOne as of such date and, upon such forfeiture, all of your rights in respect of such Shares shall cease automatically and without further action by CyrusOne or you.  In addition, except as otherwise determined by the Committee or provided in Section 16 of the Plan, any Shares that remain subject to Restrictions may not be transferred, sold, assigned alienated, transferred, pledged, attached, conveyed or otherwise encumbered by you in any manner whatsoever and whether or not for consideration.  For the purpose of giving effect to this provision, you must execute and deliver to CyrusOne a stock power with respect to each certificate evidencing any of the Shares, thereby assigning to CyrusOne all of your interest in the Shares.  By the execution and delivery of this Agreement, you authorize and empower CyrusOne, in the event of a forfeiture of any of the Shares under this Section 8 to (i) date (as of the date you cease to be an Employee) those stock powers relating to Shares that remain subject to the Restrictions as of the date you cease to be an Employee and (ii) present such stock powers and the certificates to which they relate to CyrusOne’s transfer agent or other appropriate party for the sole purpose of transferring the forfeited Shares to CyrusOne.  Notwithstanding anything herein to the contrary, in the event the initial public offering of common stock of CyrusOne is not consummated, all Shares shall be forfeited to CyrusOne.
 
 
 
3
 
 
9.            Employment .  For purposes of this Agreement, you shall be deemed to be an “Employee” while, and only while, you are in the employ of the Company and considered to be employed under the policies and procedures (including the payroll and withholding procedures) of the Company.  In this regard, the granting of this Agreement does not constitute a contract of employment and does not give you the legal right to be continued as an Employee.

10.            Matters Relating to Certificates .  (a) On or following the date of this Agreement, any Shares issued to you in accordance with and subject to this Agreement shall be evidenced in such manner as CyrusOne shall determine.

(b)           Each certificate or book entry credit issued or entered in respect of any Shares issued to you in accordance with this Agreement shall bear the following legend:

“The Shares evidenced by this certificate are subject to the terms of a Restricted Stock Agreement between the registered holder hereof and CyrusOne Inc., dated as of [Award Date], and may not be transferred by the holder, except as provided by the terms of such agreement, a copy of which is on deposit with the Secretary of CyrusOne Inc. and which will be mailed to a shareholder of CyrusOne Inc. without charge within five days after receipt of a written request.”

(c)           CyrusOne shall require that the certificates or book entry credits evidencing title of the Shares be held in custody by CyrusOne until such time, if any, as your rights with respect to the Shares have vested, and CyrusOne may require that, as a condition of your receiving the Shares you shall have delivered to CyrusOne a stock power, endorsed in blank, relating to such Shares.  To the extent that your rights with respect to the Shares become vested, the legend set forth above shall be removed from the certificates or book entry credits evidencing such Shares.

11.            Interpretation .  You acknowledge that the Committee has the authority to construe and interpret the terms of the Plan and this Agreement if and when any questions of meaning arises under the Plan or this Agreement, and any such construction or interpretation shall be binding on you, your heirs, executors, administrators, personal representatives and any other persons having or claiming to have an interest in the Shares.
 
 
 
4
 

 
12.            Withholding .  In the event that the award and receipt of the Shares, the expiration of the Restrictions, the payment of dividends on the Shares or any other event results in your realization of income or wages which for federal, state and/or local income or other employment tax purposes is, in the opinion of the Company, subject to withholding of tax by the Company, you shall pay to the Company an amount equal to the withholding tax amount that the Company determines applies with respect to such event or make arrangements satisfactory to the Company regarding the payment of such tax, which arrangements may include your agreement to surrender the Shares that have become free of the Restrictions.  Otherwise, the Company may, at its discretion and to the extent it determines is necessary to pay such withholding tax amount, withhold any such withholding tax amount from your salary, dividends paid by CyrusOne on the Shares, any Shares that have become free of the Restrictions or any other compensation payable to you.

13.            Notices .  All notices and other communications to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, first class postage prepaid, and addressed as follows:
 
  TO CYRUSONE: CyrusOne Inc.
    Kimberly Sheehy
    1649 Frankford Road
    Carrollton, TX 75007
     
  TO THE EMPLOYEE: Employee Name
    Address
     
or to any other address as to which notice has been given in the manner herein provided.

14.            Effect of Employment Agreement .  Notwithstanding any of the terms of the foregoing sections of this Agreement, if the provisions of a written employment agreement between you and the Company (any such agreement, an “ Employment Agreement ”) would require that the Restrictions that apply to any Shares will lapse on a date that occurs on or before the date the Restrictions would have lapsed or the Shares would have been forfeited, in each case, under the terms of the foregoing sections of this Agreement, or would require that you be deemed to be employed by the Company until a date later than the actual date on which your employment terminates for purposes of determining the extent to which and the date on which the Restrictions would lapse or the Shares would be forfeited, then such Employment Agreement provisions shall control (and shall be deemed an amendment to this Agreement and incorporated herein by reference).  In the event of any conflict between the terms of the Plan, on the one hand, and the terms of this Agreement or any Employment Agreement, on the other hand, the terms of the Plan shall govern.  In the event of any conflict between the terms of this Agreement and the terms of any Employment Agreement, the terms of such Employment Agreement shall govern.
 
 
 
5
 

 
15.            Miscellaneous .

(a)           The Shares are intended to be Performance Awards for purposes of the Plan and the Committee may, in its discretion, determine that all or a portion of the Shares are intended to qualify as “qualified performance-based compensation” under Section 162(m) of the Code, in which case, the Shares will be governed by the terms and conditions of the Plan applicable to qualified performance-based compensation, including Sections 6.2 and 15.4 of the Plan.  You hereby acknowledge and agree that you will not make an election under Section 83(b) of the Code with respect to the receipt of any of the Shares without the consent of the Committee, which the Committee may grant or withhold in its sole discretion.

(b)          This Agreement shall be binding upon the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and assigns.  Subject to the provisions of the Plan and any applicable Employment Agreement, this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall be construed and interpreted in accordance with the laws of the State of Texas.  If any provisions of this Agreement shall be deemed to be invalid or void under any applicable law, the remaining provisions hereof shall not be affected thereby and shall continue in full force and effect.  In the event you fail to sign and return this Agreement to CyrusOne within one month of the Award Date, the Shares shall be forfeited to CyrusOne and this Agreement shall become immediately void and of no further force or effect.

(c)           The Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate this Agreement prospectively or retroactively; provided, however, that any such waiver, amendment, alteration, suspension, discontinuance, cancelation or termination that would materially and adversely impair your rights hereunder shall not to that extent be effective without your consent (it being understood, notwithstanding the foregoing proviso, that this Agreement and the Shares shall be subject to the provisions of Sections 17 and 18 of the Plan).

(d)           All disputes, controversies and claims arising between you and CyrusOne concerning the subject matter of this Agreement or the Plan shall be settled by arbitration in accordance with the rules and procedures of the American Arbitration Association in effect at the time that the arbitration begins, to the extent not inconsistent with this Agreement or the Plan.  The location of the arbitration shall be Dallas, Texas or such other place as the parties to the dispute may mutually agree.  In rendering any award or ruling, the arbitrator or arbitrators shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Texas.  The arbitration shall be conducted by an arbitrator selected in accordance with the aforesaid arbitration procedures.  Any arbitration pursuant to this Section 15(d) shall be final and binding on the parties, and judgment upon any award rendered in such arbitration may be entered in any court, Federal or state, having jurisdiction.  The parties to any dispute shall each pay their own costs and expenses (including arbitration fees and attorneys’ fees) incurred in connection with arbitration proceedings and the fees of the arbitrator shall be paid in equal amounts by the parties.  Nothing in this Section 15(d) shall preclude you or CyrusOne from seeking temporary injunctive relief from any Federal or state court located within the State of Texas in connection with or as a supplement to an arbitration hereunder.

(e)           You hereby acknowledge that (i) the business of CyrusOne, CyrusOne LP, CyrusOne LLC and each of their respective subsidiaries (the “ CyrusOne Group ”) in which you will be principally engaged is investing in and operating data centers throughout the United States and internationally, (ii) in the course of your employment with any member or members of the CyrusOne Group, you shall be entrusted with or obtain access to information proprietary to members of the CyrusOne Group and have access to and the benefit of goodwill belonging to the CyrusOne Group, (iii) you must not use the proprietary information or goodwill for the benefit of any entity except for the CyrusOne Group, (iv) this Section 15(e) is essential to protect the legitimate business and goodwill of the CyrusOne Group, does not impose an undue hardship on your and will not prevent you from engaging in gainful employment and (v) the Board would not have granted you this award but for the covenants and agreements set forth in this Section 15(e).  Therefore, ancillary to the otherwise enforceable agreements set forth in this Agreement, you hereby agree that at all times during the Term (as herein defined) and the Restricted Period (as herein defined), if applicable, you will not accept employment or engage or participate in any business activity (whether as a principal, partner, joint venturer, agent, employee, salesperson, consultant, independent contractor, director, officer or otherwise) with or as a Competitor (as herein defined) of the CyrusOne Group without the prior written consent of CyrusOne, which would involve you:
 
 
 
6
 

 
(A)           providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products competitive with or similar to those services or products with which you had any involvement, and/or regarding which you had any proprietary information, during your employment with any member or members of the CyrusOne Group (including any products or services being researched or developed by the CyrusOne Group during your employment with any member or members of the CyrusOne Group); or

(B)           providing or performing services that are similar to any services that you provided to or performed for the CyrusOne Group.

“ Competitor ” means any business or entity that, at any time during the one year period following the termination of your employment, provides or seeks to provide, any products or services similar or related to any products sold or any services provided by the CyrusOne Group, including, without limitation, any company or business that provides data colocation services to businesses or entities.

“ Term ” means the period commencing on the Award Date and terminating on the date of the cessation of your employment for any reason.

“ Restricted Period ” means the one year period following the termination of your employment by the Company for Cause or by you for any reason.

The restrictions set forth in this Section 15(e) will be limited to the geographic areas: (i) where you performed services for the CyrusOne Group, (ii) where you served CyrusOne Group customers or clients and/or (iii) otherwise impacted or influenced by your services to the CyrusOne Group.  If any of the provisions in this Section 15(e) conflict with similar provisions in any other document or agreement related to your employment with any member or members of the CyrusOne Group, the provisions of this Agreement will be in addition to and operate independently of any similar provisions; provided, however, that if the restrictions set forth in the other document or agreement at issue are broader in scope (including if such restrictions are longer in duration) than those in this Agreement and are enforceable under applicable law, those restrictions will take precedence and the provisions of this Section 15(e) shall not impair, diminish, restrict or waive any such restrictive covenant or confidentiality obligation by you to the CyrusOne Group, if any.
 
 
 
7
 

 
(f)           This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The counterparts shall constitute one and the same instrument, which shall be sufficiently evidenced by any one thereof. Headings used throughout this Agreement are for convenience only and shall not be given legal significance.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “but not limited to”.  The term “or” is not exclusive.

 
 
 

 
 
8
 

Please indicate your acceptance by signing at the place provided and returning this Agreement no later than [Date].
 
      CYRUSONE INC.  
           
Dated:
[Award Date]
 
By:
   
        [Name]  
        [Title]  
           
           
      [Employee]:  
         
Dated:
       
   
 
Accepted and Agreed  
         
         
         

 
 
9
 
 
 
EXHIBIT A

To be attached.