EXHIBIT 10.22
PERFORMANCE UNIT AWARD AGREEMENT
This instrument is issued as of the 19th day of January, 2006, by ONEOK,
Inc., an Oklahoma corporation, (hereinafter referred to as "Corporation"), to
<> (hereinafter referred to as "Grantee"), an employeE of the
Corporation or a division or subsidiary thereof, pursuant to the terms of the
ONEOK, Inc. Equity Compensation Plan, effective February 17, 2005, (hereinafter
referred to as the "Plan").
1. Performance Unit Award. This instrument and that certain Notice of
Performance Unit Award and Agreement, dated January 19, 2006, a copy of which is
attached hereto and incorporated herein by reference (the "Notice of Performance
Unit Award and Agreement"), constitute evidence of the issuance and grant of a
Performance Unit Award (hereinafter referred to as "Award") of
<> Performance Units to the Grantee by the Corporation that
shall entitle the Grantee to receive shares of the Corporation's Common Stock
(hereinafter also referred to as "Common Stock") or cash, all pursuant and
subject to the terms, provisions, and conditions of this instrument (including,
without limitation, the conditions, restrictions and limitations stated in
paragraph 5, below) and the terms and provisions of the Plan, which are
incorporated herein by reference. This instrument, when executed by the Grantee,
together with the Notice of Performance Unit Award and Agreement constitute an
agreement between the Corporation and the Grantee. Notwithstanding the
foregoing, should there be any inconsistency between the provisions of this
instrument and the terms and provisions of the Award stated in the resolutions
and records of the Board of Directors of the Corporation providing for the Award
or provisions of the Plan, the provisions of such resolutions and records and of
the Plan shall control. The grant of such Performance Units to the Grantee shall
be effective in the manner and to the extent provided in this instrument and the
Plan as to all or any part of the shares of Common Stock subject to the grant
from time to time during the period stated herein.
2. Plan. The Award is made to the Grantee pursuant to the terms and
provisions of the Plan, as approved by the Shareholders of the Corporation,
which Plan provides that a specific aggregate number of shares of Common Stock
of the Corporation may be issued or transferred pursuant to Stock Incentives
under the Plan. The Plan specifies the authority of the Corporation, its Board
of Directors, and a committee of the Board of Directors to select employees to
be granted Stock Incentives under the Plan. The Executive Compensation Committee
of the Board of Directors (hereinafter referred to as the "Committee") is
authorized to administer the Plan with respect to this instrument and the grant
of the Award made to the Grantee pursuant to the Plan. Except where expressly
stated or clearly indicated otherwise by the terms of this instrument, all
terms, words and phrases used herein shall have the same meaning and effect as
stated in the Plan. The Grantee has been provided a complete copy of the Plan
with this instrument.
3. Grantee's Agreement Concerning Award and Employment. In consideration
of the Corporation's granting of the Award of Performance Units and entitlement
to shares of Common Stock, as incentive compensation to Grantee pursuant to this
instrument, the Grantee,
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by acceptance thereof, and signing this instrument evidencing its terms, agrees
to such terms and to continue to contribute and perform service in the employ of
the Corporation or a division or subsidiary thereof at the direction, will and
pleasure of the Corporation and the Board of Directors. Provided, however,
neither the foregoing agreement of the Grantee in this paragraph 3, nor any
other provision in this instrument shall confer on the Grantee any right to
continue in the employ of the Corporation (or a division or Subsidiary thereof),
or interfere in any way with the right of the Corporation (or such division or
Subsidiary) to terminate the Grantee's employment at any time.
4. Registration of Stock; Grantee's Representation With Respect To
Acquiring for Investment. It is intended by the Corporation that the Plan and
the shares of Common Stock covered by the Award issued and granted to the
Grantee referred to in paragraph 1, above, are to be registered under the
Securities Act of 1933, as amended, prior to the date of the grant; provided,
that in the event such registration is for any reason not made effective for
such shares, the Grantee agrees, for the Grantee, and for the Grantee's
permissible assignees, heirs and legal representatives by inheritance or
bequest, that all shares acquired pursuant to the grant will be acquired for
investment and not with a view to, or for sale or tender in connection with the
distribution of any part thereof, including any transfer or distribution of such
shares by the Grantee pursuant to the grant and this instrument or as otherwise
allowed by the Plan.
5. Terms and Conditions of Award; Transfer of Stock to Grantee. The issue
and grant of the Award of Performance Units to the Grantee stated in paragraph
1, above, shall be subject to the following terms and conditions:
(a) The right to ownership and transfer of the Performance Units
granted to the Grantee shall be subject to the Award during the period beginning
January 19, 2006, the date of the grant thereof (hereinafter referred to as
"Grant Date") and ending on January 19, 2009, (which period is hereinafter
referred to as "Performance Period"), as herein provided.
(b) The Grantee shall earn and become entitled to receive a
percentage of the number of Performance Units granted under paragraph 1, above,
at the expiration of the Performance Period as provided for in Table A and Table
B, attached hereto, based upon the Corporation's ranking for Total Stockholder
Return in the ONEOK Peer Group listed in Table C attached hereto, all as
determined by the Committee, in its sole discretion.
(c) Upon expiration of the Performance Period, the Grantee shall be
entitled to receive one (1) share of Common Stock for each Performance Unit that
becomes earned by and vested in the Grantee pursuant to the Award; provided, no
fractional shares shall be issued and any fractional shall be paid to the
Grantee in cash.
(d) The Grantee shall not be entitled to vote any shares of Common
Stock of the Corporation, or otherwise have any right or interest as a Common
Stock shareholder by reason of the Performance Unit Award granted under the
Award during the Performance Period, and prior to the actual transfer of Common
Stock to the Grantee pursuant to the Award.
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(e) No dividends or any similar amounts shall be payable or paid
with respect to Performance Units, Common Stock earned under the Award, or the
Award during or for the Performance Period.
(f) The Grantee shall have no right to receive cash or acquire
shares of Common Stock of the Corporation under the Award other than the cash
and Common Stock attributable to the Performance Units earned by the Grantee to
the extent provided for herein.
(g) The Common Stock or cash to which the Grantee becomes entitled
shall be paid and transferred to the Grantee only upon the determination of the
Performance Units earned by the Grantee at the expiration of the Performance
Period. The payment and transfer of such Common Stock or cash to the Grantee
shall be made as soon as reasonably practicable after the expiration of the
Performance Period, as determined and directed by the Committee, in its sole
discretion.
(h) The Performance Units or any Common Stock or cash to be paid or
transferred to Grantee pursuant to the Award may not be sold, assigned,
transferred, pledged, encumbered or otherwise disposed of by Grantee or any
other person except as provided in the Award and the Plan until the expiration
of the Performance Period and payment and transfer of Common Stock or cash
pursuant to the Agreement and Plan.
(i) The Grantee shall become entitled to receive Performance Units
earned, and shall become owner of the shares of Common Stock or cash paid and
transferred to the Grantee pursuant to the Award free and clear of all terms,
conditions and restrictions imposed by the Award if the Grantee's employment by
the Corporation does not terminate during the Performance Period; provided, that
the Grantee shall become entitled to a prorated amount of Performance Units and
the terms and conditions imposed by the Award shall partially cease to apply in
certain events to the extent described in paragraph 6(d), below.
(j) If the Grantee's employment with the Corporation (or a division
or Subsidiary thereof) terminates prior to the end of the Performance Period
other than by reason of retirement, Total Disability or death, the Grantee shall
forfeit all of the Grantee's right, title or interest in the Performance Units;
and the Grantee shall forfeit such right, title and interest in the Performance
Units regardless of the reason for such termination of employment. Any such
termination of employment of the Grantee described in the preceding sentence
shall not be deemed to occur by reason of transfer of employment of the Grantee
by or between the Corporation and any division or Subsidiary of the Corporation.
Upon a forfeiture the Performance Units forfeited shall be cancelled for all
purposes.
6. Transferability of Performance Units; Termination of Employment.
(a) Except as provided in subparagraph (b) of this paragraph 6,
below, the Award, the Grantee's rights and obligations hereunder and the
Performance Units granted hereunder shall not be transferable by the Grantee
otherwise than by will or the laws of descent and distribution which apply to
the Grantee's estate.
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(b) Notwithstanding the foregoing, the Grantee may transfer any part
or all of the Grantee's rights in and to the Performance Units to members of the
Grantee's immediate family, or to one or more trusts for the benefit of such
immediate family members, or partnerships in which such immediate family members
are the only partners if the Grantee does not receive any consideration for the
transfer. In the event of any such transfer, Performance Units shall continue to
be subject to the same terms and conditions otherwise applicable hereunder and
under the Plan immediately prior to its transfer, except that this stock shall
not be further transferable by the transferee inter vivos, except for transfer
back to the original Grantee. For any such transfer to be effective, the Grantee
must provide prior written notice thereof to the Committee, unless otherwise
authorized and approved by the Committee, in its sole discretion; and the
Grantee shall furnish to the Committee such information as it may request with
respect to the transferee and the terms and conditions of any such transfer. For
purposes of transfer of this grant under this subparagraph (b), "immediate
family" shall mean the Grantee's spouse, children and grandchildren.
(c) Notwithstanding anything to the contrary expressed or implied
herein (including without limitation, the restrictions stated in paragraph 5,
above, applicable to the Performance Units), all rights and interest of the
Grantee in the Performance Units shall become invalid and wholly terminated and
forfeited upon the termination of the Grantee's employment with the Corporation
(or a division or Subsidiary), during the Performance Period other than a
termination by reason of retirement, Total Disability or death of the Grantee.
(d) Notwithstanding the foregoing provisions, in the event of
termination of the Grantee's employment with the Corporation (or a division or
Subsidiary) during the Performance Period by reason of (i) the retirement of the
Grantee, (ii) the Total Disability of the Grantee, or (iii) the Grantee's death
while still employed by the Corporation (or a division or Subsidiary), then an
adjusted and prorated entitlement to Performance Units shall be allowed as
provided in this paragraph 6(d). The Grantee shall become vested in and entitled
receive, in the event of any such retirement or Total Disability, and the
legatees, or personal representatives or heirs of the Grantee shall be vested in
and entitled to receive, in the event of the Grantee's death, a prorated award
of Performance Units earned in the Performance Period following such retirement,
Total Disability or death. The award shall be a prorated amount of Performance
Units equal to the total of Performance Units earned under the Award at the end
of the Performance Period for the Grantee, multiplied by a fraction of which the
numerator shall be the number of full months which have elapsed under the
Performance Period at the time of such termination of employment by reason of
retirement, Total Disability or death, and the denominator of which shall be the
total number of months in the Performance Period. The Grantee, or personal
representatives or heirs of the Grantee, as the case may be, shall become
entitled to receive such prorated award at the expiration of the Performance
Period and following application of the performance criteria as provided in the
Award and determined by the Committee.
(e) The Grantee may designate a Beneficiary to receive any rights of
the Grantee which may become vested in the event of the death of the Grantee
under procedures and
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in the form established by the Committee; and in the absence of such designation
of a Beneficiary, any such rights shall be deemed to be transferred to the
estate of the Grantee.
(f) For purposes of the Award and this instrument, "Total
Disability" shall mean that the Grantee is permanently and totally disabled and
unable to engage in any substantial gainful activity by reason of a medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months, and has established such disability to the
extent and in the manner and form as may be required under the provisions of
Section 22(e) of the Internal Revenue Code of 1986, as amended (or corresponding
section of any future federal tax code), and regulations thereunder.
7. Administration of Performance Unit Award. The grant of the Award shall
be subject to such other rules and requirements as the Committee, in its sole
discretion, may determine to be appropriate with respect to administration
thereof and the terms and conditions made applicable to the Grantee and the
Performance Units during the Performance Period. The Award, this instrument, and
the rights and obligations of the parties thereto shall be subject to
interpretation and construction by the Committee to the same extent and with the
same effect as the Committee actions under pertinent provisions of the Plan. The
Grantee shall take all actions and execute and deliver all documents as may from
time to time be requested by the Committee in connection with such restrictions
and in furtherance hereof. The Grantee agrees to pay to the Corporation any
applicable federal, state, or local income, employment, social security,
medicare, or other withholding tax obligation arising in connection with the
grant of the Award to the Grantee; and the Corporation shall have the right,
without the Grantee's prior approval or direction, to satisfy such withholding
tax by withholding all or any part of the shares of Common Stock or cash that
would otherwise be paid and transferred to the Grantee, with any shares of
Common Stock so withheld to be valued at the Fair Market Value (as defined in
the Plan) on the date of such withholding. The Grantee, with the consent of the
Corporation, may satisfy such withholding tax by delivery and transfer to the
Corporation of shares of Common Stock previously owned by the Grantee, with any
shares so delivered and transferred to be valued at the Fair Market Value on the
date of such delivery.
8. Adjustment Provisions. It is understood that, prior to the expiration
of the Performance Period certain changes in capitalization of the Corporation
may occur. It is, therefore, understood and agreed with respect to changes in
capitalization that:
(a) If a stock dividend is declared on the Common Stock of the
Corporation, there shall be added to the number of Performance Units provided
for under the Award and stated in paragraph 1 of this instrument, the number of
Performance Units equal to the number of Performance Units which would have been
granted to the Grantee had the Grantee been the fully vested and unrestricted
owner of the number of Performance Units then provided for under the Award
granted, but not theretofore received without restriction; provided, however,
that the additional Performance Units shall be subject to all terms and
provisions of this instrument (including, without limitation, the terms and
conditions stated in paragraph 5, above), and in making such adjustments, no
fractional units, shares, or scrip certificates in lieu thereof, shall be
granted or issuable by the Corporation, and the Grantee shall be entitled to
only the number of
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full Performance Units to which the Grantee may be entitled by reason of such
adjustment at the adjusted grant.
(b) In the event of an increase in the outstanding shares of Common
Stock of the Corporation, effectuated for the purpose of acquiring properties or
securities of another corporation or business enterprise, there shall be no
increase in the number of Performance Units which are the subject matter of the
Award under this instrument as a result of such acquisition.
(c) In the event of an increase or decrease in the number of
outstanding shares of Common Stock of the Corporation through recapitalization,
reclassification, stock split-ups, consolidation of shares, changes in par value
and the like, an appropriate adjustment shall be made in the number of
Performance Units provided for under the Award and stated in Section 1 of this
instrument, by increasing or decreasing the number of Performance Units, as may
be required to enable the Grantee to acquire the same proportionate
stockholdings as the grant of the Award would originally have provided.
Provided, however, that any additional Performance Units shall be subject to all
terms and provisions of this instrument (including, without limitation, the
restrictions stated in paragraph 5, above), and that in making such adjustments,
no fractional Performance Units shall be awarded, and the Grantee shall be
entitled to receive only the number of full Performance Units to which the
Grantee may be entitled by reason of such adjustment.
(d) Notwithstanding any provision to the contrary stated herein, to
the extent Performance Units are still not vested in Grantee at the time of a
Change in Control with respect to the Corporation, then pursuant to the
provisions of the Plan, they shall become fully vested and completely free and
clear of any conditions or restrictions stated herein at that time; provided,
that if such Change in Control occurs less than six (6) months after the date of
the grant of the Award hereunder to the Grantee, then Performance Units shall
become fully vested and completely free and clear of any conditions or
restrictions stated herein at the time of such Change in Control only if the
Grantee agrees in writing, if requested by the Corporation in writing, to remain
in the employ of the Corporation or a division or subsidiary of the Corporation
at least through the date which is six (6) months after the date the grant was
made with substantially the same title, duties, authority, reporting
relationships, and compensation as on the day immediately preceding the Change
in Control. The provisions of this subparagraph (d) shall be applied in addition
to, and shall not reduce, modify, or change any other obligation or right of the
Grantee otherwise provided for in paragraph 3, above, concerning the Grantee's
continued employment with the Corporation or the termination thereof. If the
Performance Units become subject to this subparagraph (d), they shall become
fully vested in the Grantee and nonforfeitable. The Performance Units are
subject to the provisions of the Plan authorizing the Corporation, or a
committee of its Board of Directors, to provide in advance or at the time of a
Change in Control for cash to be paid in actual settlement of the shares of
Common Stock for earned Performance Units, all subject to such terms and
conditions as the Corporation or the Committee, in its sole discretion, may
determine and impose. For purposes of this subparagraph (d), the term "Change in
Control" shall have the same meaning as provided in the definition of that term
stated in the Plan, including any amendments thereof which may be made from time
to time in the future
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pursuant to the provisions of the Plan, with any amended definition of such term
to apply to all events thereafter coming within the amended meaning.
9. Stock Reserved. The Corporation shall at all times during the term of
the Award reserve and keep available such number of shares of its Common Stock
as will be sufficient to satisfy the Award issued and granted to Grantee and the
requirements thereof as evidenced by this instrument, and shall pay all original
issue taxes, if any, on the transfer of Common Stock to the Grantee, and all
other fees and expenses necessarily incurred by the Corporation in connection
therewith.
10. Rights of Shareholder. Except as otherwise provided in the Award and
this instrument, the Grantee shall have no rights as a shareholder of the
Corporation in respect of the Performance Units or Common Stock for which the
Award is granted; and the Grantee shall not be considered or treated as a record
owner of shares with respect to the Common Stock until the Performance Units are
fully vested and no longer subject to any of the conditions, performance
requirements, or restrictions imposed under the Award, and Common Stock is
actually issued and transferred to the Grantee.
11. Entire Agreement. This instrument contains the entire terms of the
Award, and may not be changed orally or other than by a written instrument
issued and approved by the Corporation pursuant to the Plan. This instrument
supersedes any agreements or understandings that may previously have existed,
and there are no other agreements or understandings, relating to its subject
matter.
12. Successors and Assigns. The Award shall inure to the benefit of and be
binding upon the heirs, legatees, legal representatives, successors, and assigns
of the parties thereto.
The Grantee hereby acknowledges receipt of this instrument, the Notice of
Performance Unit Award and a copy of the Plan, and accepts the Award under the
terms and conditions stated in this instrument, subject to all terms and
provisions of the Plan, by signing this instrument in duplicate originals, as of
the date first above written.
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Date <>
Grantee
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Table A
Performance Units Criteria
2006-2009 Performance Period
Total Stockholder Return (TSR):vs. ONEOK Peer Group
ONEOK TSR Ranking vs. Percentage of
ONEOK Peer Group Performance Units Earned
------------------------- ------------------------
90th percentile and above 200%
75th - 89th percentile 150%
50th - 74th percentile 100%
30th - 49th percentile 50%
29th percentile and below 0%
Table B
Illustration of Hypothetical 2006-2009 Performance Period
Performance Unit Award Calculation
Illustration assumes 1,000 Performance Units Granted in January 2006
Total Stockholder Return (TSR) vs. ONEOK Peer Group
Hypothetical 2006-2009 ONEOK TSR Ranking = 40th percentile
A40(th) percentile TSR ranking earns 50% (from Table A)
of PUs granted (i.e., 1,000 units) - 500 units earned
Total Performance Units Earned
TR 500 Performance Units
500 performance units earned out of 1,000 units granted = 50.0% "earn-out" [50%
(500 shares) paid and distributed in the form of Common Stock as provided in
section 5.c.]
Table C
ONEOK PEER GROUP - 2006
COMPANY NAME SYM
----------------------------------- ---
AGL Resources Inc. ATG
ATMOS Energy ATO
CenterPoint Energy CNP
Enbridge ENB
KeySpan Energy Inc (Brooklyn Union) KSE
Xxxxxx Xxxxxx KMI
MDU Resources MDU
National Fuel Gas Company NFG
New Jersey Resources NJR
NICOR Inc. GAS
NiSource NI
ONEOK, INC. OKE
Peoples Energy Corporation PGL
Piedmont Natural Gas Company PNY
SEMPRA (Pacific Enterprises & ENOVA) SRE
Southern Union SUG
Southwest Gas Corporation SWX
UGI Corporation UGI
Vectren VVC
Washington Gas Light Company WGL
Wisconsin Energy Corp WEC
