Exhibit 10(a)
NEOs, VPs 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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Expiration Date:
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Option Price:
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Total Award:
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Vest Schedule –
Options
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Vest Date
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Vest Quantity
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May 15, 2010
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33 1 / 3
%
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May 15, 2011
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33 1 / 3
%
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May 15, 2012
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33 1 / 3
%
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TIM HORTONS INC.
2006 STOCK INCENTIVE
PLAN
NONQUALIFIED STOCK OPTION AWARD
AGREEMENT
(with related Stock Appreciation
Right)
Grant Year: 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);
WHEREAS, pursuant to Sections 6 and
7 of the Plan, the Human Resource and Compensation Committee (the
“Committee”) has determined to grant to the Grantee on
the Date of Grant an Option and a related Stock Appreciation Right
(“SAR”), each as provided herein, to encourage the
Grantee’s efforts toward the continuing success of the
Company and its Subsidiaries;
WHEREAS, a SAR means a right to
surrender to the Company, in whole or in part, the unexercised
Option to purchase Shares and to receive from the Company a cash
amount equal to the product of: (i) the excess of the Fair
Market Value (as defined in the
Plan) of a Share on the date of exercise of the
SAR over the Option Price (as defined below); multiplied by
(ii) the number of Shares as to which the SAR is being
exercised; 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:
1. Grant of Award . The
Company hereby grants to the Grantee, on the Date of Grant, a
Nonqualified Stock Option (the “Option”) with a related
SAR to purchase the above-noted number of Shares (the
“Award”) at the above-noted exercise price per Share
(the “Option Price”), subject to the terms and
conditions of this Agreement and the Plan. The Option is not
intended to be treated as an option that complies with
Section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”).
2. Vesting; Term of Award .
Except as otherwise provided in this Agreement, the Award shall
vest as follows:
(a) One-third (1/3) of the
total Shares covered by the Award shall vest on May 15, 2010,
subject to rounding down the Award to the nearest whole Share as of
the vesting date;
(b) One-third (1/3) of the
total Shares covered by the Award shall vest on May 15, 2011,
subject to rounding down the Award to the nearest whole Share as of
the vesting date; and
(c) One-third (1/3) of the
total Shares covered by the Award shall vest on May 15, 2012,
subject to rounding down the Award to the nearest whole Share as of
the vesting date.
The Award shall expire seven
(7) years after the Date of Grant (the “Expiration
Date”), whether or not the Award (or any portion thereof) has
been exercised, unless sooner terminated as provided in
Section 4 of this Agreement. Notwithstanding anything to the
contrary contained in this Agreement, if the Award expires outside
of a Trading Window, then the expiration of the term of the Award
shall be the later of: (i) the date the Award would have
expired by its original terms (including the terms set forth in
Section 4 of this Agreement), or (ii) the end of the
tenth trading day of the immediately succeeding Trading Window
during which the Company would allow the Grantee to trade in its
securities; provided, however, that in no event shall the Award
expire beyond the tenth anniversary of the Date of
Grant.
3. Exercise of Award .
Subject to the limitations set forth in this Agreement and in the
Plan, the vested portion of the Award may be exercised in whole or
in part by providing to the Company or its designee at its
principal office written notice of exercise;
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provided that the Award may be exercised with
respect to whole Shares only. Such notice shall specify
(i) whether the Grantee intends to exercise the Option or the
SAR and (ii) the number of Shares with respect to which the
Award is to be exercised.
(a) Exercise of SAR . If the
Grantee desires to receive cash, as opposed to Shares, upon
exercise of all or a portion of the vested amount of the Award, the
Grantee will exercise the SAR. Upon the exercise of the SAR, the
Grantee shall be entitled to receive a cash amount from the Company
equal to the product of: (i) the excess of the Fair Market
Value of a Share on the date of exercise of the SAR over the Option
Price; multiplied by (ii) the number of Shares as to which the
SAR is being exercised.
(b) Exercise of Option . If
the Grantee desires to receive Shares, as opposed to cash, upon
exercise of all or a portion of the vested amount of the Award, the
Grantee will exercise the Option. If the Option is exercised,
payment of the Option Price for the number of Shares specified in
the notice of exercise shall accompany the written notice of
exercise. The payment of the Option Price may be made, as
determined by the Committee in its sole discretion as of the time
of exercise, as follows: (i) in cash, certified check or bank
draft; (ii) by transferring Shares having a Fair Market Value
equal to the aggregate Option Price for the Shares being purchased
and satisfying such other requirements as may be imposed by the
Committee, provided that such Shares have been held by the Grantee
for at least six months (or such other period as established from
time to time by the Committee); (iii) partly in cash and
partly in Shares; (iv) by surrender of Shares that the Grantee
would have otherwise been entitled to receive upon payment of the
Option Price and exercise of the Option, equivalent in value to the
aggregate Option Price for the number of Shares specified in the
notice of exercise; or (v) through a cashless exercise,
including through a registered broker-dealer. The Committee shall
determine the means and manner by which Shares to be delivered upon
exercise of the Option shall be settled and/or satisfied, in its
sole and absolute discretion.
(c) Tandem Nature of Award .
Upon the exercise of the SAR, the Option shall be canceled (
i.e ., surrendered to the Company) to the extent of the
number of Shares as to which the SAR is exercised. Upon the
exercise of the Option, the SAR shall be canceled to the extent of
the number of Shares as to which the Option is exercised or
surrendered.
4. Termination of Employment
.
(a) Death or Disability .
Upon termination of the Grantee’s employment with the Company
and its Subsidiaries as a result of the Grantee’s death or
the Grantee becoming Disabled, the Award shall become immediately
exercisable as of the date of such termination of employment, and
the Grantee (or, to the extent applicable, the Grantee’s
legal guardian, legal representative or estate) shall have the
right to exercise the Award for a period of four (4) years
after the date of such termination or, if earlier, until the
Expiration Date.
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(b) Retirement . Upon
termination
