Exhibit 10.17
Black Hills
Corporation
2005 Omnibus
Incentive Plan
Restricted Stock
Unit Agreement
(Effective for Awards granted on or after
January 1, 2009)
Dear _______________________:
Congratulations on your award under the Black
Hills Corporation 2005 Omnibus Incentive Plan (the “Omnibus
Plan”) and your participation in the Black Hills Corporation
Nonqualified Deferred Compensation Plan (the “NDC
Plan”) (collectively, the “Plans”). This
Agreement and the Plans together govern your rights to the award
and set forth all of the conditions and limitations affecting such
rights. Copies of the Plans have been delivered to you. All
capitalized terms shall have the meanings ascribed to them in the
respective Plan unless specifically set forth otherwise herein. If
there is any inconsistency between the terms of this Agreement and
the terms of the Plans, the Plans’ terms shall supersede and
replace the conflicting terms of this Agreement. By signing below,
you agree to be bound by all the provisions of the Plans and this
Agreement.
Overview of Your Award.
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1 .
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Number of Restricted Stock Units
Granted. _______ Restricted Stock Units ("RSUs”), each unit
corresponding to one share of Black Hills Corporation Common Stock.
Each RSU constitutes only an unsecured promise of the Company to
deliver a share of Common Stock to the Participant under the terms
of the NDC Plan. As a holder of RSUs, the Participant has only the
rights of a general unsecured creditor of the Company.
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2.
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Date of Grant.
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_____________
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3 .
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Date of Vesting. Subject to continued employment under Section 4
below, the RSUs shall vest and become nonforfeitable in accordance
with the following schedule (each date is a “Vesting
Date”):
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Shares
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Date
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_____
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_______
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_____
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_______
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_____
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_______
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4.
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Employment by the Company.
This Restricted Stock Unit Award is
conditioned on the Participant’s remaining as an employee of
Black Hills Corporation and its Affiliates (the
“Company”) from the Date of Grant through (and
including) the Vesting Dates. The Award of these RSUs, however,
shall not impose upon the Company any obligations to retain the
Participant in its employ for any given period or upon any specific
terms of employment.
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5.
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Termination of Employment by Reasons of Death or
Disability, and Vesting in Connection with a Change in
Control. In the event the
Participant’s employment is terminated by reason of Death or
Disability, or in the event of a Change in Control prior to any one
of the Vesting Dates, all RSUs then unvested and outstanding shall
immediately vest one hundred percent (100%), and, as soon as is
administratively practicable, the awards shall be settled in
accordance with Section 7.
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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
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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
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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Notwithstanding the above provisions
of this definition, to the extent that any payment under the
Agreement due to a Change in Control is subject to Code Section
409A for deferred compensation, then the term Change in Control
shall be construed in a manner that is consistent with Code Section
409A(a)(2)(A)(v), but only to the extent inconsistent with the
above provisions as determined by the Board.
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6.
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Forfeiture and Repayment.
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(a)
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In the event the Participant’s employment
is terminated for reasons other than those described in Section 5
herein prior to the Vesting Dates, then all outstanding RSUs
granted hereunder that are unvested shall immediately be forfeited
by the Participant.
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(b)
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Without limiting the generality of Section 6(a),
the Company reserves the right to cancel all Restricted Stock Units
awarded hereunder, whether
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