Exhibit 10.13
Black Hills
Corporation
2005 Omnibus
Incentive Plan
Option Award
Agreement
(Effective for
awards granted on or after January 1, 2009)
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Participant:
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____________
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Date of Grant:
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Number of Shares Covered by this
Option:
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____________
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Number of above Shares intended to
be
Incentive Stock Options ("ISOs")
within the meaning of Internal
Revenue
Number of above shares intended to
be
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Nonqualified Stock Options
("NQSOs"):
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____________
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Option Price for each Share:
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Date of Expiration:
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This document constitutes part of the prospectus
covering securities that have been registered under the Securities
Act of 1933.
THIS AGREEMENT, effective as of the
Date of Grant set forth above, represents the grant of stock
options by Black Hills Corporation, a South Dakota corporation (the
"Company") to the Participant named above, pursuant to the
provisions of the Black Hills Corporation 2005 Omnibus Incentive
Plan ("Plan").
This Agreement and the Plan together
govern your rights to the award and set forth all of the conditions
and limitations affecting such rights. All capitalized terms used
herein shall have the meanings ascribed to them in the Plan unless
specifically set forth otherwise herein. If there is any
inconsistency between the terms of this Agreement and the terms of
the Plan, the Plan's terms shall completely supersede and replace
the conflicting terms of this Agreement. By signing below, you
agree to be bound by all the provisions of the Plan and this
Agreement.
1.
Grant of Stock Options . The Company hereby grants to the
Participant an Option to purchase the number of Shares set forth
above, at the stated Option Price, which is 100 percent (100%) of
the Fair Market Value of a Share on the Date of Grant, in the
manner and subject to the terms and conditions of the Plan and this
Agreement.
2.
Exercise of Stock Option . Except as hereinafter provided,
the Participant may exercise this Option at any time after the end
of one year following the Date of Grant as to those Shares which
have become vested according to the vesting schedule set forth
below, provided that no exercise may occur subsequent to the close
of business on the Date of Expiration (as defined on page 1 of this
Agreement).
VESTING SCHEDULE
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Date
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Shares for Which Option Becomes
Exercisable
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Cumulative Number of
Shares Available for
Purchase
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This
Option may be exercised in whole or in part, but not for less than
100 Shares at any one time, unless fewer than 100 Shares then
remain subject to the Option, and the Option is then being
exercised as to all such remaining Shares.
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3.
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Termination of Employment
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(a)
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By death or Disability : In the event the Participant’s
employment is terminated by reason of death or disability, all
Shares under this Option shall become immediately vested (100%) and
the Shares may be purchased under the terms of this Agreement until
the earlier of: (i) the expiration date of this Option; or (ii) the
first anniversary of the date of death or Disability.
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(b)
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By Retirement : In the event of termination of employment by
reason of retirement, all unvested Shares under this Option shall
be forfeited and vested Shares may be purchased under the terms of
this Agreement until the earlier of: (i) the expiration date of
this Option; or (ii) the third anniversary date of
Retirement.
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(c)
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For other reasons : Shares which are vested as of the date of
termination of employment of the Participant for any reason other
than those reasons set forth in 3(a) or 3(b) above may be purchased
under the terms of this Agreement until the earlier of: (i) the
expiration date of this Option; or (ii) 90 days following the date
of termination of employment. Shares which are not vested as of the
date of termination shall immediately terminate, and shall be
forfeited to the Company.
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4.
Change in Control . In the event of a Change in Control, all
Shares under this Option shall become immediately vested (100%) and
shall remain exercisable for their entire term.
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"Change in Control" of the Company
shall be deemed to have occurred (as of a particular day, as
specified by the Board) upon the occurrence of any of the following
events:
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(a)
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The acquisition in a transaction or series of
transactions within a 12 month period by any Person of Beneficial
Ownership of thirty percent (30%) or more of the combined voting
power of the then outstanding shares of common stock of the
Company; provided, however, that for purposes of this Agreement,
the following acquisitions will not constitute a Change in Control:
(A) any acquisition by the Company; (B) any acquisition of
common stock of the Company by an underwriter holding securities of
the Company in connection with a public offering thereof; and (C)
any acquisition by any Person pursuant to a transaction which
complies with subsections (c) (i), (ii) and (iii),
below;
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(b)
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Individuals who, as of December 31, 2007 are
members of the Board (the "Incumbent Board"), cease for any reason
to constitute at least a majority of the members of the Board
within a 12 month period; provided, however, that if the election,
or nomination for election by the Company's common shareholders, of
any new director was approved by a vote of at least two-thirds of
the Incumbent Board, such new director shall, for purposes of this
Plan, be considered as a member of the Incumbent Board; provided
further, however, that no individual shall be considered a member
of the Incumbent Board if such individual initially assumed office
as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest;
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(c)
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Consummation, following shareholder approval, of
a reorganization, merger, or consolidation of the Company and/or
its subsidiaries, or a sale or other disposition (whether by sale,
taxable or non-taxable exchange, formation of a joint venture or
otherwise) of fifty percent (50%) or more of the assets of the
Company and/or its subsidiaries (each a “Business
Combination”), unless, in each case, immediately following
such Business Combination, (i) all or substantially all of the
individuals and entities who were beneficial owners of shares of
the common stock of the Company immediately prior to such Business
Combination beneficially own, directly or indirectly, more that
fifty percent (50%) of the combined voting power of the then
outstanding shares of the entity resulting from the Business
Combination or any direct or indirect parent corporation thereof
(including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one (1) or more
subsidiaries)(the “Successor Entity”); (ii) no Person
(excluding any Successor entity or any employee benefit plan or
related trust, of the Company or such Successor Entity) owns,
directly or indirectly, thirty percent (30%) or more of the
combined voting power of the then outstanding shares of common
stock of the Successor Entity, except to the extent that such
ownership existed prior to such Business Combination; and (iii) at
least a majority of the members of the Board of Directors of the
entity resulting from such Business Combination or any direct
or
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3
indirect parent corporation thereof
were members of the Incumbent Board at the time of the execution of
the initial agreement or action of the Board providing for such
Business Combination; or
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(d)
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Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company, except pursuant
to a Business Combination that complies with subsections (c) (i),
(ii), and (iii) above.
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(e)
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A Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Common Stock as a result of the acquisition of Common
Stock by the Company which, by reducing the number of shares of
Common Stock then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Persons, provided that if
a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Common Stock by the
Company, and after such stock acquisition by the Company, the
Subject Person becomes the Beneficial Owner of any additional
Common Stock which increases the percentage of the then outstanding
Common Stock Beneficially Owned by the Subject Person, then a
Change in Control shall occur.
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(f)
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A Change in Control shall not be deemed to occur
unless and until all regulatory approvals required in order to
effectuate a Change in Control of the Company have been obtained
and the transaction constituting the Change in Control has been
consummated.
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5.
Restrictions on Transfer . This Option may not be sold,
transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution. Further, this Option shall be exercisable during the
Participant's lifetime only by the Participant or the Participant's
legal representative.
6.
Recapitalization . In the event there is any change in the
Company's Shares through the declaration of stock dividends or
through recapitalization resulting in stock splits or through
merger, consolidation, exchange of Shares,
