Exhibit 10(b)
VP Level and Up
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Participant Name
(“Grantee”):
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Employee Number:
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Grant Name:
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Date of Grant:
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Total Award:
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Vest Schedule –
RSUs
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Vest Date
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Vest Quantity
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November 15, 2011
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100%
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RESTRICTED STOCK UNIT AWARD
AGREEMENT
(with related Dividend Equivalent
Rights)
Tim Hortons Inc.
Grant Year: 2009
May 15, 2009
THIS AGREEMENT is made effective as
of the 15th day of May, 2009 (the “Date of Grant”), by
and among Tim Hortons Inc., a Delaware corporation (the
“Company”), the below-noted Employer, and the
above-noted Grantee (collectively, the
“Parties”).
WHEREAS, the Company has adopted the
Tim Hortons Inc. 2006 Stock Incentive Plan, as amended from time to
time (the “Plan”), in order to provide additional
incentive to certain employees and directors of the Company and its
Subsidiaries (as defined in the Plan); and
WHEREAS, pursuant to
Section 4.2 of the Plan, the Committee (as defined below) has
determined to grant to the Grantee on the Date of Grant an Award of
Restricted Stock Units with related Dividend Equivalent Rights as
provided herein to encourage the Grantee’s efforts toward the
continuing success of the Company and its Subsidiaries;
and
WHEREAS, the Award is evidenced by
this Agreement, which (together with the Plan), describes all the
terms and conditions of the Award.
NOW, THEREFORE, the Parties agree as
follows:
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1.1
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The Company hereby grants to the
Grantee in respect of employment services provided by the Grantee
to the Employer in 2009 and part of 2010 an award (the
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“Award”) of the
above-noted number of Restricted Stock Units with an equal number
of related Dividend Equivalent Rights. The Restricted Stock Units
and related Dividend Equivalent Rights granted pursuant to the
Award shall be subject to the Grantee providing evidence of the
Grantee’s acceptance of this Agreement (or the
Grantee’s estate, if applicable) to the Company as provided
in Section 8 hereof. Subject to Section 6 hereof, each
Restricted Stock Unit represents the right to receive, at the
absolute discretion of the Company, (i) one (1) Share
from the Company, (ii) cash delivered to a broker to acquire
one (1) share on the Grantee’s behalf, or (iii) one
(1) Share delivered by the Trustee (as defined in
Section 7), in any case at the time and in the manner set
forth in Section 7 hereof.
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1.2
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Each Dividend
Equivalent Right represents the right to receive the equivalent of
all of the cash dividends that would be payable with respect to the
Share represented by the Restricted Stock Unit to which the
Dividend Equivalent Right relates. With respect to each Dividend
Equivalent Right, any amount related to cash dividends shall be
converted into additional Restricted Stock Units based on the Fair
Market Value of a Share on the date such dividend is made. Any
additional Restricted Stock Units granted pursuant to this Section
shall be subject to the same terms and conditions applicable to the
Restricted Stock Unit to which the Dividend Equivalent Right
relates, including, without limitation, the restrictions on
transfer, forfeiture, vesting and payment provisions contained in
Sections 2 through 8, inclusive, of this Agreement. In the event
that a Restricted Stock Unit is forfeited pursuant to
Section 6 hereof, the related Dividend Equivalent Right shall
also be forfeited. Fractional Restricted Stock Units may be
generated upon the automatic settlement of Dividend Equivalent
Rights into additional Restricted Stock Units and upon the vesting
of a portion of a Restricted Stock Unit award (see Section 3).
These fractional Restricted Stock Units continue to accrue
additional Dividend Equivalent Rights and accumulate until the
fractional interest is of sufficient value to acquire an additional
Restricted Stock Unit as a result of the settlement of future
Dividend Equivalent Rights, subject to adjustment upon the vesting
of a portion of the underlying Restricted Stock Unit award (see
Section 3). The Human Resource and Compensation Committee
(“Committee”) shall determine appropriate
administration for the tracking and settlement of Dividend
Equivalent Rights, including with respect to fractional interests,
and the Committee’s determination in this regard shall be
final and binding upon all Parties.
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1.3
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This Agreement
shall be construed in accordance and consistent with, and is
subject to, the provisions of the Plan (the provisions of which are
hereby incorporated by reference), as well as any and all
determinations, policies, instructions, interpretations, rules,
etc., of the Committee in connection with the Plan. Except as
otherwise expressly set forth herein, the capitalized terms used in
this Agreement shall have the same definitions as set forth in the
Plan.
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2.
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Restrictions
on Transfer.
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The Restricted Stock Units and
Dividend Equivalent Rights granted pursuant to this Agreement may
not be sold, transferred or otherwise disposed of and may not be
pledged or otherwise hypothecated.
Except as otherwise provided in this
Agreement, Restricted Stock Units granted hereunder shall vest in
their entirety on November 15, 2011. Fractional Restricted
Stock Units may be generated and/or adjusted upon the vesting of
one-third of the Restricted Stock Units awarded under this
Agreement. See Section 7 regarding settlement of fractional
Restricted Stock Units.
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4.
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Effect of
Certain Terminations of Employment.
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4.1
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Death or
Disability . If
Grantee’s employment terminates as a result of
Grantee’s death or becoming Disabled, or if the Grantee is
terminated without Cause in connection with the sale or disposition
of a Subsidiary, in each case if such termination occurs on or
after the Date of Grant, all Restricted Stock Units which have not
become vested in accordance with Section 3 or 5 hereof shall
vest as of the date of such termination.
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4.2
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Retirement. If Grantee’s employment terminates as a
result of the Grantee’s Retirement, and if such termination
occurs on or after the Date of Grant, any unvested Restricted Stock
Units will remain outstanding and will continue to vest in
accordance with the vesting schedule described in Section 3 of
this Agreement.
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4.3
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Definitions. For purposes of this Agreement,
(a) “Retirement” shall mean termination of
employment after attaining age 60 with at least ten (10) years
of service (as defined in the Company’s qualified retirement
plans) other than by death, Disability or for Cause and
(b) the word “terminate” or
“termination” in connection with the Grantee’s
employment shall mean the Grantee’s “separation from
service,” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”)
and Treasury Regulation Section 1.409A-1(h).
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4.4
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Trading Policies and Transfer
of Shares. For a period
of six (6) months following a termination of employment,
whether under Section 4, 5, or 6 of this Agreement, Grantee
shall continue to be subject to the Company’s insider trading
and window trading policies and must follow all pre-clearance
procedures, and all other requirements, included in those policies.
In the case of Retirement, a termination due to Disability, or
death, Grantee or Grantee’s estate or legal representative,
as the case may be, shall take all reasonable steps to transfer all
Shares received under this Agreement (and all other Shares that
have vested and are maintained by the Plan Administrator (as
defined in Section 7) in a brokerage account for the benefit
of Grantee) from the Plan Administrator within five (5) years
following the Grantee’s termination of employment. For
terminations arising for any reason other than death, Disability,
or Retirement, Grantee shall transfer all Shares
received
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under this Agreement (and all other
Shares that have vested and are maintained by the Plan
Administrator in a brokerage account for the benefit of Grantee)
from the Plan Administrator within one (1) year following the
Grantee’s termination of employment.
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5.
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Effect of
Change in Control.
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In the event of a Change in Control,
which also constitutes a change in ownership or effective control
of the Company or a change in the ownership of a substantial
portion of its assets, in each case within the meaning of
Section 409A of the Code and Treasury Regulation
Section 1.409A-3(i)(5), at any time on or after the Date of
Grant, all Restricted Stock Units which have not become vested in
accordance with Section 3 or 4 hereof shall vest
immediately.
Except as otherwise provided in this
Agreement, any and all Restricted Stock Units which have not become
vested in accordance with Section 3, 4 or 5 hereof shall be
forfeited upon:
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(a)
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the termination
of the Grantee’s employment with the Co
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