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Form of Restricted Stock Unit Award Agreement
(with
related Dividend Equivalent Rights) for
Named
Executive Officers, other than Donald B.
Schroeder (2008 Award)
Exhibit 10(c)
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RESTRICTED STOCK UNIT AWARD
AGREEMENT
(with related Dividend Equivalent
Rights)
Tim Hortons Inc.
Grant Year: 20
[Date]
THIS AGREEMENT, made
effective as of the day of
, 20 (the “Date of
Grant”), is among Tim Hortons Inc., a Delaware corporation
(the “Company”), The TDL Group Corp., a Nova Scotia
unlimited liability company (the “Employer”) and
(the “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; 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
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 20
an award (the “Award”)
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 execution and return of this Agreement by the Grantee (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
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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, the Restricted Stock Units granted hereunder shall vest
in their entirety on
, 20 . Fractional Restricted Stock
Units may be generated and/or adjusted upon the vesting 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. As used in this Agreement, (a) “
Retirement ” shall mean termination of employment
after attaining age 60 with at least 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 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 in the Plan Administrator’s system in a brokerage
account for the benefit of Grantee) from the Company’s Plan
Administration system 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 under this Agreement (and all
other Shares that have vested and are maintained in the Plan
Administrator’s system in a brokerage account for the benefit
of Grantee) from the Company’s Plan Administration system
within one 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
contr
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