Exhibit 10.2
_________________
Congratulations on your selection as
a Participant of Black Hills Corporation Omnibus Incentive Compensation Plan (the
“Plan”). This Agreement and the Plan together govern your rights under the Plan
and set forth all of the conditions and limitations affecting such rights. Terms used in
this Agreement that are defined in the Plan shall have the meanings ascribed to them in
the Plan. If there is any inconsistency between the terms of this Agreement and the terms
of the Plan, the Plan’s terms shall supersede and replace the conflicting terms of
this Agreement.
Overview of Your Award
1. Number of Restricted Shares Granted. ____ Shares
2. Date of Grant.
__________
3. Date of Lapse of
Restrictions.
| 4. |
Employment by the Company. This Restricted Stock is awarded on the
condition that the Participant remain in the employ of Black Hills Corporation
(the “Company”) from the Date of Grant through (and including) the
Dates of Lapse of Restrictions. The Award of this Restricted Stock, 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. |
| 5. |
Certificate Legend. Shares of Restricted Stock granted pursuant to the
Plan shall be held by the Company in book entry form and shall be designated to
have the following legend: |
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“The
sale or other transfer of the shares of stock represented by this certificate, whether
voluntary, involuntary, or by operation of law, is subject to certain restrictions on
transfer set forth in the Black Hills Corporation Omnibus Incentive Compensation Plan and
in a Restricted Stock Award Agreement. A copy of the Plan and such Restricted Stock
Agreement may be obtained from the Secretary of Black Hills Corporation.” |
| 6. |
Removal of
Restrictions. Except as otherwise provided in the Plan, each of the Shares of
Restricted Stock granted under this Agreement shall become freely transferable by the
Participant on each of the “Dates of Lapse of Restrictions” set forth on
Paragraph 3 herein. |
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Once
the shares are released from the restrictions, the Participant shall be entitled to
receive certificates representing the Shares of stock which have been vested, without the
restrictive legend required by Paragraph 5 of this Agreement. |
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Notwithstanding
the terms of this Agreement, no stock shall be issued by the Corporation while its stock
transfer books are closed. |
| 7. |
Voting Rights and Dividends. During the Period of Restriction, the
Participant may exercise full voting rights and is entitled to receive all
dividends and other distributions paid with respect to the Shares of Restricted
Stock while they are held. If any such dividends or distributions are paid in
shares of Common Stock of the Company, the Shares shall be subject to the same
restrictions on transferability as the Shares of Restricted Stock with respect
to which they were paid. |
| 8. |
Termination of Employment By Reasons of Death, Disability, Retirement, and
Vesting in Connection with a Change in Control. In the event the
Participant’s employment is terminated by reason of Death, Disability,
Retirement, or in the event of a Change in Control prior to the Dates of Lapse
of Restrictions, all Shares of Restricted Stock then outstanding shall
immediately vest one hundred percent (100%), and as soon as is administratively
practicable, the stock certificates representing the Shares of Restricted Stock
without any restrictions or legend thereon, shall be delivered to the
Participant’s beneficiary or estate. |
| 9. |
Beneficiary Designation. The Participant may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit under this Agreement is to be paid in case of his or her death
prior to the Dates of Lapse of Restrictions. Each such designation shall revoke
all prior designations by the Participant, shall be in a form prescribed by the
Company, and will be effective only when filed by the Participant in writing
with the Company during the Participant’s lifetime. In the absence of any
such designation, benefits remaining unpaid at the Participant’s death
shall be paid to the Participant’s estate. |
| 10. |
Termination of Employment for Other Reasons. In the event the
Participant’s employment is terminated for reasons other than those
described in Section 8 herein prior to the Dates of the Lapse of Restrictions,
all outstanding Shares of unvested Restricted Stock granted hereunder shall
immediately be forfeited by the Participant. |
| 11. |
Transferability. This Restricted Stock is not transferable by the
Participant, whether voluntarily or involuntarily, by operation of laws or
otherwise, during the Restriction Period, except as provided in the Plan. If any
assessment, pledge, transfer, or other disposition, voluntary or involuntary, of
this Restricted Stock shall be made, or if any attachment, execution,
garnishment, or client shall be issued against or placed upon the Restricted
Stock, then the Participant’s right to the Restricted Stock shall
immediately cease and terminate and the Participant shall promptly forfeit to
the Company all Restricted Stock awarded under this Agreement. |
| 12. |
Tax Treatment.
The following is a brief summary of the principal federal income tax consequences related
to grants of restricted stock. This summary is based on the Company’s understanding
of present federal income tax law and regulations. The summary does not purport to be
complete or applicable to every specific situation. |
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The
value of restricted stock granted to the Participant will be taxable to the Participant in
the year in which it is no longer subject to substantial risk of forfeiture (i.e., when
the restrictions lapse). When the restrictions lapse, there is an ordinary income tax
event to the Participant equal to the number of shares multiplied by the market price of
the shares at the time the restrictions lapse. The Participant must satisfy federal and
state withholding requirements and may do so by having the Company sell sufficient shares
to meet the withholding requirements. |
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The
Participant has the option to make a Code Section 83(b) election on a grant of restricted
stock. Code Section 83(b) allows the Participant to choose to be taxed immediately on the
amounts received in connection with a substantially “nonvested” right (i.e.,
compensation that has not been constructively received). This is accomplished by the
Participant filing an election with the IRS stating that he or she will pay ordinary
income on the value as measured at the time of grant. Any future appreciation in the stock
property will be treated as capital gain when sold. This election must be made within 30
days after the stock is received. |
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If
the Participant elects Section 83(b) treatment and later forfeits the subject stock, he or
she will not be entitled to any refund for the taxes paid; however, he or she will be
entitled to treat the forfeiture as a sale of the stock at a loss (i.e., capital loss)
(limited to the amount paid for shares — typically zero). |
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Tax
Withholding. The Company shall have the power and the right to deduct or withhold, or
require the Participant to remit to the Company, an amount sufficient to satisfy federal,
state and local taxes (including Participant’s FICA obligation), domestic or foreign,
required by law or regulation to be withheld with respect to any taxable event arising as
a result of this Plan. |
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Share
Withholding. With respect to withholding required upon the lapse of restrictions or
upon any other taxable event arising as a result of the Awards granted hereunder, the
Participants may elect, subject to the approval of the Board, to satisfy the withholding
requirement, in whole or in part, by having the Company withhold shares having a Fair
Market Value on the date the tax is to be determined equal to the minimum statutory total
tax that could be imposed on the transaction. All such elections shall be irrevocable,
made in writing, signed by the Participant, and shall be subject to any restrictions or
limitations that the Committee, in its sole discretion, deems appropriate. |
| 14. |
Requirements of Law. The issuance of Shares under the Plan shall be
subject to all applicable laws, rules, and regulations, and to such approvals by
any governmental agencies or national securities exchanges as may be required. |
| 15. |
Inability to Obtain Authorization. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company’s counsel to be necessary to the lawful issuance of
any Shares hereunder, shall relieve the Company of any liability in respect of
the failure to issue such Shares as to which such requisite authority shall not
have been obtained. |
| 16. |
Severability. In the event any provision of this Agreement shall be held
to be illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of this Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included. |
| 17. |
Continuation of Employment. This Agreement shall not confer upon the
Participant any right to continuation of employment by the Company, nor shall
this Agreement interfere in any way with the Company’s right to terminate
the Participant’s employment at any time. |
| 18. |
Applicable Laws and Consent to Jurisdiction. The validity, construction,
interpretation and enforceability of this Agreement shall be determined and
governed by the laws of the State of South Dakota without giving effect to the
principles of conflicts of law. For the purpose of litigating any dispute that
arises under this Agreement, the parties hereby consent to exclusive
jurisdiction in South Dakota and agree that such litigation shall be conducted
in the courts of ▇▇▇▇▇▇▇▇▇▇ County or the federal courts of the United States
for the District of South Dakota, Western Division. |
| 19. |
Miscellaneous. The Plan may be amended at any time, and from time to
time, by a written instrument approved by the Board of Directors of Black Hills
Corporation. No termination, amendment or modification of the Plan shall
adversely affect in any material way any Award previously granted under the
Plan, without the written consent of the Participant holding such Award. |
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The
Plan and this Agreement are binding upon Participant, as well as his/her heirs, executors,
personal representatives, trustees, attorneys, agents, administrators, and successors. |
Please refer any questions you may
have regarding your restricted stock to _________________. Once again, congratulations on
receipt of your restricted stock.
Sincerely,
__________________________________________
Please acknowledge your agreement to
participate in the Plan and this Agreement, and to abide by all of the governing terms and
provisions, by signing the following representation:
Agreement to
Participate
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By
signing a copy of this Agreement and returning it to ________________, of Black Hills
Corporation, I acknowledge that I have read the Plan, and that I fully understand all of
my rights under the Plan, as well as all of the terms and conditions which may limit my
eligibility to exercise this Award. Without limiting the generality of the preceding
sentence, I understand that my right to exercise this Award is conditioned upon my
continued employment with Black Hills Corporation or its Subsidiaries. |
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___________________________________________________
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