Exhibit 10(k)
Form of Amended and Restated
Deferred Stock Unit Award Agreement (U.S. Version)
(Compliance with Section 409A of the Internal
Revenue Code)
AMENDED AND
RESTATED
DEFERRED STOCK UNIT AWARD
AGREEMENT
(with related Dividend Equivalent
Rights)
(U.S. Directors)
Tim Hortons Inc.
[Date]
THIS AGREEMENT, made effective as of
the day of
, 20 (the “ Effective
Date ”), is between Tim Hortons Inc., a Delaware
corporation (the “ Company ”), and
(the “ Grantee ”) (collectively, the
“ Parties ”).
WHEREAS, the Company has adopted the
Tim Hortons Inc. Non-Employee Director Deferred Stock Unit Plan, as
amended from time to time (the “ Plan ”), in
order to provide an additional incentive to non-employee directors
of the Company; and
WHEREAS, pursuant to Section 4
of the Plan, the Company may grant, from time-to-time, to the
Grantee Elective DSUs, Formula DSUs, Voluntary Formula DSUs and
Discretionary DSUs (all as defined in the Plan and collectively
referred to herein as “DSUs” or, individually, a
“ DSU ”) with related Dividend Equivalent
Rights; and
WHEREAS, each grant of DSUs shall be
evidenced by this Agreement, which (together with the Plan),
describes all the terms and conditions of the respective DSU
grant.
NOW, THEREFORE, the Parties agree as
follows:
1.1 The Company hereby grants to the
Grantee awards (the “ Awards ”) of the number of
Formula DSUs, Voluntary Formula DSUs, Elective DSUs, and
Discretionary DSUs as set out on Schedule A hereto with an equal
number of related Dividend Equivalent Rights on the date(s) of
grant (each a “ Grant Date ”) set forth on
Schedule A. Grants of DSUs are subject to certain administrative
determinations to be made by the Human Resource and Compensation
Committee of the Company (the “ Committee ”)
from time-to-time, which are described on Schedule A and which,
unless otherwise specified on Schedule A, shall apply in respect of
all existing and future Awards; provided that no such
administrative determination will impair the rights of the Grantee
without the consent of the Grantee, except as may be permitted
pursuant to Sections 5 and 11 of this Agreement. Each DSU shall
have the value of one share of Company’s common stock, par
value U.S.$0.001 per share and any other securities into which such
share is changed or for which such share is exchanged (“
Share ”). Distributions and payments for DSUs and
Dividend Equivalent Rights shall be made in accordance with the
terms of Section 5 and 6 hereof, respectively. The DSUs and
related Dividend Equivalent Rights granted pursuant to the Awards
shall be subject to the execution and return of this Agreement by
the Grantee. On a quarterly basis, the Company will deliver to the
Grantee an updated Schedule A setting out the total
number of DSUs that have been granted to the
Grantee under the Plan and pursuant to this Agreement from the
Effective Date to the date of such Schedule. Grantee shall be
deemed to have (i) accepted and agreed to the terms and
conditions of the Awards and administrative determinations
described on the Schedule and (ii) confirmed their agreement
and acknowledgment that the terms of this Agreement continue to
comply in full force and effect to all such future Awards, unless
Grantee notifies the Company within 15 business days after receipt
of the respective quarterly Schedule A.
1.2 Each Dividend Equivalent Right
represents the right to receive an amount in respect of all of the
cash dividends or other distributions that are or would be payable
with respect to the number of DSUs held by the Grantee if the DSUs
were Shares. The cash value attributable to Dividend Equivalent
Rights shall be deferred and converted into additional DSUs based
on the Fair Market Value of a Share on the date such dividend is
paid. “ Fair Market Value ” or “
FMV ” on any date shall be equal to the mean of the
high and low prices at which Shares are traded on the Toronto Stock
Exchange on such date or the mean of the high and low prices at
which the Shar