As filed with the Securities and Exchange Commission on January 11, 1995
Registration No. 33-_____
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
Tucson Electric Power Company
(Exact Name of Registrant as Specified in its Charter)
_______________________
Arizona 86-0062700
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation of Organization) Identification No.)
220 West Sixth Street, Tucson, Arizona 85701
(Address of principal executive offices)
TUCSON ELECTRIC POWER COMPANY 1994 OMNIBUS STOCK AND INCENTIVE PLAN
(Full Title of the Plan)
Dennis R. Nelson, Esq.
Tucson Electric Power Company
P.O. Box 711
Tucson, Arizona 85702
(Name and Address of Agent For Service)
Telephone Number, Including Area Code of Agent For Service: (602) 571-4000
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
- ---------------- ---------- ---------------- ---------------- ------------
Common Stock, 3,000,000 $3.1875 (2) $9,562,500.00 $3,297.41
No Par Value Shares (1)
(1) In addition, this Registration Statement also covers options and
other rights under the Plan to acquire such shares and, pursuant
to Rule 416, an indeterminate amount of securities which by reason
of certain events may become subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price per share and
in the aggregate and the registration fee were calculated based
upon the average of the high and low prices of the Common Stock on
the consolidated reporting system on January 9, 1995.
The Exhibit Index included in this Registration Statement is at page 8.
Part I
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the
statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act of 1933.
Part II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of Tucson Electric Power Company (the
"Company") filed with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1993.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1994.
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1994.
(e) The description of the Company's Common Stock is contained in the
prospectus dated January 11, 1995 which is incorporated herein.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities and Exchange Act of 1934 ("Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be part thereof from the date of filing of such
documents. Any statement contained herein or in a document, all or a portion
of which is incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or amended,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
The Company's Common Stock, no par value, is registered pursuant
to Section 12 of the Exchange Act, and, therefore, the description of
securities is omitted.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Arizona corporate law generally authorizes, on a non-exclusive basis,
indemnification of officers and directors who have acted or failed to act, in
good faith, in a manner believed to be in or not opposed to the best interest
of the Company (with certain limitations in the case of actions by or in the
right of the Company) and mandates such indemnification in the case of an
officer or director who is successful on the merits or otherwise in defense of
claims by reason of the fact or such status as an officer or director.
Section 17.1 of the Plan provides that each person who is or shall have
been a member of the Committee or the Board shall be indemnified and held
harmless by the Company against and from any loss, cost, liability, or expense
that may be imposed upon or reasonably incurred by him in connection with or
resulting from any claim, action, suit, or proceeding to which he may be a
party or in which he may be involved by reason of any action taken or failure
to act under the Plan and against and from any and all amounts paid by him in
settlement thereof, with the Company's approval, or paid by him in
satisfaction of any judgment in any such action, suit, or proceeding against
him, provided he shall give the company an opportunity, at its own expense, to
handle and defend the same before he undertakes to handle and defend it on his
own behalf. The foregoing right of indemnification shall not be exclusive of
any other rights or indemnification to which such person may be entitled under
the Company's Articles of Incorporation, Bylaws, as a matter of law,or
otherwise, or any power that the Company may have to indemnify them or hold
them harmless.
Article SEVENTH of the Restated Articles of Incorporation of the Company
provides, in relevant part, that:
(B) No director of the Corporation shall be personally liable for
monetary damages for breach of fiduciary duty as a Director; provided,
however, that nothing herein shall be deemed to eliminate or limit any
liability which may not be so eliminated or limited under the laws of the
State of Arizona, as in effect at the effective date of this paragraph (B) of
Article SEVENTH or as thereafter amended. No amendment, modification or
repeal of this paragraph (B) shall eliminate or limit the protection afforded
by this paragraph (B) to a director with respect to any act or omission
occurring before the effective date thereof.
(C) (1) The Corporation shall, to the maximum extent permitted by
applicable law, as from time to time in effect, indemnify any person who was
or is a party to or otherwise involved in (or threatened to be made a party to
or otherwise involved in) any threatened, pending or completed action, suit or
proceeding (hereinafter called an "Action"), whether civil, criminal,
administrative or investigative (including without limitation any Action by or
in the right of the Corporation to procure a judgment in its favor) by reason
of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer of
another corporation, of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or any other entity
or enterprise, against expenses, including attorneys' fees, and against
judgments, fines and amounts paid in settlement incurred by him in connection
with such Action or any appeal therein.
(2) The Corporation shall pay any expenses incurred by a director
or officer of the Corporation in defending any such Action in advance of the
final disposition thereof upon receipt of any understanding by or on behalf of
such person to repay such advances to the extent of the amount to which such
person shall ultimately be determined not to be entitled.
(3) The Corporation, by resolution of the Board of Directors, may
extend the benefits of this paragraph (C) of Article SEVENTH to employees,
agents and other representatives of the Corporation (each director, officer,
employee, agent and other representative entitled to benefits under this
paragraph (C) being hereinafter sometimes called an "Indemnified Person").
(4) All rights to indemnification and to the advancement of
expenses granted under or pursuant to this paragraph (C) shall be deemed to
arise out of a contract between the Corporation and each person who is an
Indemnified Person at any time while this paragraph (C) is in effect and may
be evidenced by a separate contract between the Corporation and each
Indemnified Person; and such rights shall be effective in respect of all
Actions commenced after the effective date of this paragraph (C), whether
arising from acts or omissions occurring before or after such date. No
amendment, modification or repeal of this Article shall affect any rights or
obligations theretofore existing.
(5) The Corporation may purchase and maintain insurance on behalf
of, or insure or cause to be insured, any person who is an Indemnified Person
against any liability asserted against him and incurred by him in any capacity
in respect of which he is an Indemnified Person, or arising out of his status
in such capacity, whether or not the Corporation would have the power to
indemnify him against such liability under this Article. As used in this
Section, "insurance" includes retrospectively rated and self-insured programs;
provided, however, that no such programs shall provide coverage for directors
and officers which is prohibited by applicable law. The Corporation's
indemnity of any person who is an Indemnified Person shall be reduced by any
amounts such person may collect with respect to such liability (a) under any
policy of insurance purchased and maintained on his behalf by the Corporation
or (b) from any other entity or enterprise served by such person.
(6) The rights to indemnification and to the advancement of
expenses and all other benefits provided by, or granted pursuant to this
Article shall continue as to a person who has ceased to serve in the capacity
in respect of which such person was an Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such person.
(7) The Board of Directors shall have the power and authority to
make, alter, amend and repeal such procedural rules and regulations relating
to indemnification and the advancement of expenses as it, in its discretion,
may deem necessary or expedient in order to carry out the purposes of this
Article, such rules and regulations, if any, to be set forth in the Bylaws of
the Corporation or in a resolution of the Board of Directors.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See the attached Exhibit Index.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933 (the
"Securities Act");
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to
such information in the Registration Statement;
however, paragraphs (a)(1)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on behalf of the undersigned, thereunto
duly authorized in the City of Tucson, State of Arizona, on January 11, 1995.
TUCSON ELECTRIC POWER COMPANY
By: IRA R. ADLER
------------------------
Ira R. Adler
Its: Senior Vice President and
Chief Financial Officer
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned President,
Chief Executive Officer and Chairman of the Board, the Senior Vice President
and Chief Financial Officer, the Vice President and Controller, officers
and/or directors of Tucson Electric Power Company, an Arizona corporation,
which corporation proposes to file with the Securities and Exchange Commission
a Registration Statement on Form S-8 for the Company's 1994 Omnibus Stock and
Incentive Plan, under the Securities Act of 1933, as amended, does each for
himself and not for one another, hereby constitute and appoint Ira R. Adler,
Dennis R. Nelson and Karen G. Kissinger and each of them, his true and lawful
attorneys, in his name, place and stead, to sign his name to said proposed
Registration Statement and any and all amendments thereto, and to cause the
same, together with all exhibits and other documents in connection therewith,
to be filed with the Securities and Exchange Commission, it being intended to
grant and hereby granting to said attorneys, and each of them, full power and
authority to do and perform any act and thing necessary and proper to be done
in the premises as fully and to all intents and purposes as the undersigned
could do if personally present; and each of the undersigned for himself hereby
ratifies and confirms all that said attorneys, or any one of them, shall
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on this 11th day of January, 1995.
/S/ CHARLES E. BAYLESS
- ----------------------------
Charles E. Bayless, President,
Chief Executive Officer and
Chairman of the Board of Directors
IRA R. ADLER
- ----------------------------
Ira R. Adler
Senior Vice President and
Chief Financial Officer
KAREN G. KISSINGER
- ----------------------------
Karen G. Kissinger
Vice President and Controller
/S/ JOSE L. CANCHOLA
- ----------------------------
Jose L. Canchola, Director
/S/ KATHRYN N. DUSENBERRY
- ----------------------------
Kathryn N. Dusenberry, Director
/S/ JOHN JETER
- ----------------------------
John Jeter, Director
/S/ R.B. O'RIELLY
- ----------------------------
R.B. O'Rielly, Director
/S/ DR. MARTHA R. SEGER
- ----------------------------
Dr. Martha R. Seger, Director
/S/ DONALD G. SHROPSHIRE
- ----------------------------
Donald G. Shropshire, Director
/S/ H. WILSON SUNDT
- ----------------------------
H. Wilson Sundt, Director
/S/ J. BURGESS WINTER
- ----------------------------
J. Burgess Winter, Director
EXHIBIT INDEX
Exhibit
Number Description
4.1 Tucson Electric Power Company 1994 Omnibus Stock and Incentive Plan
4.2 Forms of Option Agreement
5 Opinion of Counsel (re legality)
15 Awareness Letter of Independent Accountants' regarding Unaudited
Interim Financial Information
23 Independent Auditors' Consent
24.1 Power of Attorney (included in this Registration Statement under
"Signatures" at page 6)
24.2 Consent of Counsel (included in Exhibit 5)
EXHIBIT 4.1
TUCSON ELECTRIC POWER COMPANY
1994 OMNIBUS STOCK AND INCENTIVE PLAN
TUCSON ELECTRIC POWER COMPANY
1994 Omnibus Stock and Incentive Plan
Table of Contents
Page
Section 1
Establishment, Purpose, and Effective Date of Plan
1.1 Establishment. . . . . . . . . . . . . . . . . . . . A-1
1.2 Purpose. . . . . . . . . . . . . . . . . . . . . . . A-1
1.3 Effective Date . . . . . . . . . . . . . . . . . . . A-1
Section 2
Definitions
2.1 Definitions. . . . . . . . . . . . . . . . . . . . . A-1
2.2 Gender and Number. . . . . . . . . . . . . . . . . . A-3
Section 3
Eligibility and Participation
3.1 Eligibility and Participation. . . . . . . . . . . . A-3
Section 4
Administration
4.1 Administration . . . . . . . . . . . . . . . . . . . A-3
Section 5
Stock Subject to Plan
5.1 Number . . . . . . . . . . . . . . . . . . . . . . . A-4
5.2 Lapsed Awards. . . . . . . . . . . . . . . . . . . . A-4
5.3 Adjustment in Capitalization . . . . . . . . . . . . A-4
Section 6
Duration of Plan
6.1 Duration of Plan . . . . . . . . . . . . . . . . . . A-4
Section 7
Stock Options
7.1 Grant of Options . . . . . . . . . . . . . . . . . . A-4
7.2 Option Agreement . . . . . . . . . . . . . . . . . . A-5
7.3 Exercise Price . . . . . . . . . . . . . . . . . . . A-5
7.4 Duration of Options. . . . . . . . . . . . . . . . . A-5
7.5 Exercise of Options. . . . . . . . . . . . . . . . . A-5
7.6 Payment. . . . . . . . . . . . . . . . . . . . . . . A-5
7.7 Restrictions on Stock Transferability. . . . . . . . A-5
7.8 Termination of Employment Due to Death,
Disability, or Retirement. . . . . . . . . . . . . . A-6
7.9 Termination of Employment Other than for
Death, Disability, or Retirement . . . . . . . . . . A-6
7.10 Non-Transferability of Options . . . . . . . . . . . A-6
Page
Section 8
Stock Appreciation Rights
8.1 Grant of Stock Appreciation Rights . . . . . . . . . A-6
8.2 Payment of SAR Amount. . . . . . . . . . . . . . . . A-6
8.3 Form and Timing of Payment . . . . . . . . . . . . . A-7
8.4 Rule 16b-3 Requirements. . . . . . . . . . . . . . . A-7
8.5 Term of SAR. . . . . . . . . . . . . . . . . . . . . A-7
8.6 Termination of Employment. . . . . . . . . . . . . . A-7
8.7 Non-Transferability of SARs. . . . . . . . . . . . . A-7
Section 9
Restricted Stock
9.1 Grant of Restricted Stock. . . . . . . . . . . . . . A-7
9.2 Transferability. . . . . . . . . . . . . . . . . . . A-7
9.3 Other Restrictions . . . . . . . . . . . . . . . . . A-7
9.4 Voting Rights. . . . . . . . . . . . . . . . . . . . A-8
9.5 Dividends and Other Distributions. . . . . . . . . . A-8
9.6 Termination of Employment Due to Retirement. . . . . A-8
9.7 Termination of Employment Due to Death or
Disability . . . . . . . . . . . . . . . . . . . . . A-8
9.8 Termination of Employment for Reasons Other
Than Death, Disability, or Retirement. . . . . . . . A-8
Section 10
Performance Units and Performance Shares
10.1 Grant of Performance Units or Performance Shares . .A-9
10.2 Value of Performance Units and Performance Shares. .A-9
10.3 Form and Timing of Payment . . . . . . . . . . . . .A-9
10.4 Termination of Employment Due to Death,
Disability, or Retirement. . . . . . . . . . . . . .A-9
10.5 Termination of Employment for Other Reasons. . . . .A-9
10.6 Non-Transferability. . . . . . . . . . . . . . . . .A-9
Section 11
Discounted Stock Options
11.1 Grant of Discounted Stock Options. . . . . . . . . .A-10
11.2 Pricing of Discounted Stock Options. . . . . . . . .A-10
Section 12
Beneficiary Designation
12.1 Beneficiary Designation. . . . . . . . . . . . . . .A-10
Section 13
Rights of Employees
13.1 Employment . . . . . . . . . . . . . . . . . . . . .A-10
13.2 Participant. . . . . . . . . . . . . . . . . . . . .A-10
Page
Section 14
Change in Control
14.1 In General . . . . . . . . . . . . . . . . . . . . .A-11
14.2 Definition . . . . . . . . . . . . . . . . . . . . .A-11
Section 15
Amendment, Modification, and Termination of Plan
15.1 Amendment, Modification, and Termination of Plan . .A-12
Section 16
Tax Withholding
16.1 Tax Withholding. . . . . . . . . . . . . . . . . . .A-12
16.2 Disposition of Shares. . . . . . . . . . . . . . . .A-12
Section 17
Indemnification
17.1 Indemnification. . . . . . . . . . . . . . . . . . .A-12
Section 18
Requirements of Law
18.1 Requirements of Law. . . . . . . . . . . . . . . . .A-13
18.2 Governing Law. . . . . . . . . . . . . . . . . . . .A-13
Section 19
Funding
19.1 Funding of Plan. . . . . . . . . . . . . . . . . . .A-13
<PAGE>
TUCSON ELECTRIC POWER COMPANY
1994 Omnibus Stock and Incentive Plan
Section 1
Establishment, Purpose, and Effective Date of Plan
1.1 Establishment. Tucson Electric Power Company, an
Arizona corporation, hereby establishes the "Tucson Electric
Power Company 1994 OMNIBUS STOCK AND INCENTIVE PLAN" (the "Plan")
for Employees. The Plan permits the grant of stock options,
dividend equivalents, stock appreciation rights, restricted
stock, performance units, and performance shares.
1.2 Purpose. The purpose of the Plan is to advance the
interests of the Company, by encouraging and providing for the
acquisition of an equity interest in the success of the Company
by Employees, by providing additional incentives and motivation
toward superior performance of the Company, and by enabling the
Company to attract and retain the services of Employees upon
whose judgment, interest, and special effort and successful
conduct of its operations is largely dependent.
1.3 Effective Date. The Plan shall become effective
immediately upon its adoption by the Board of Directors of the
Company subject to its ratification by the shareholders of the
Company and the receipt of any necessary governmental approvals.
Section 2
Definitions
2.1 Definitions. Whenever used herein, the following terms
shall have their respective meanings set forth below:
(a) "Award" means any Option, Stock Appreciation Right,
Restricted Stock, Performance Unit or Performance Share
granted under this Plan.
(b) "Board" means the Board of Directors of the
Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Committee" means the non-Employee independent
directors of the Company serving on the Compensation
Committee of the Board of Directors. No person, while a
member of the Committee, shall be eligible for participation
in the Plan, and no person shall become a member of the
Committee unless such person meets the requirements for
disinterested administration set forth in Rule 16b-3 of the
Securities Exchange Act of 1934, as amended.
(e) "Company" means Tucson Electric Power Company, an
Arizona Corporation.
(f) "Discounted Stock Option" means an Option granted
pursuant to Section 11 of the Plan.
(g) "Disability" means a condition of total and
permanent disability whereby one is unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months, as defined by
Section 22(e) of the Internal Revenue Code of 1986, as
amended.
(h) "Employee" means any full-time or part-time
employee of the Company or one of its subsidiaries
(including any officer or director who is also an employee)
that was not hired for a specific job of limited duration,
or for a position slotted for students.
(i) "Fair Market Value" means the average of the
highest and lowest sales prices of the Stock as reported on
the consolidated tape for securities listed on the New York
Stock Exchange on a particular date. In the event that there
are no Stock transactions on such date, the Fair Market
Value shall be determined by utilization of the above
formula as of the immediately preceding date on which there
were Stock transactions.
(j) "Option" means the right to purchase Stock at a
stated price for a specified period of time. For purposes of
the Plan an Option may be either (i) an "incentive stock
option" within the meaning of Section 422 of the Code, (ii)
a "nonstatutory stock option" (an option which is not an
incentive stock option) including a Discounted Stock Option,
or (iii) any other type of option encompassed by the Code.
(k) "Participant" means any Employee designated by the
Committee to participate in the Plan.
(l) "Performance Unit" means a right to receive a
payment equal to the value of a Performance Unit as
determined by the Committee.
(m) "Performance Share" means a right to receive a
payment equal to the value of a Performance Share as
determined by the Committee.
(n) "Period of Restriction" means the period during
which shares of Restricted Stock are subject to restrictions
pursuant to Section 9 of the Plan.
(o) "Restricted Stock" means Stock granted to a
Participant pursuant to Section 9 of the Plan.
(p) "Retirement" (including "Early Retirement" and
"Normal Retirement") means termination of employment on or
after such Employee's early, normal or late retirement date
or age as applicable under the terms of the Company's
Salaried Employees Retirement Plan or the Pension Trust Plan
for Employees of Tucson Electric Power Company represented
by IBEW Local 1116.
(q) "Stock" means the Common Stock of the Company, no
par value.
(r) "Stock Appreciation Right" and "SAR" mean the right
to receive a payment from the Company equal to the excess of
the Fair Market Value of the share of Stock at the date of
exercise over a specified price fixed by the Committee,
which shall not be less than 100% of the Fair Market Value
of the Stock on the date of grant. In the case of a Stock
Appreciation Right which is granted in conjunction with an
Option, the specified price shall be the Option exercise
price.
2.2 Gender and Number. Except when otherwise indicated by
the context, words in the masculine gender when used in the Plan
shall include the feminine gender, the singular shall include the
plural, and the plural shall include the singular.
Section 3
Eligibility and Participation
3.1 Eligibility and Participation. All Employees are
eligible to participate in the Plan. The Committee shall select
and determine, in its sole discretion, those Employees who will
participate in the Plan and the extent of their participation.
Section 4
Administration
4.1 Administration. The Committee shall be responsible for
the administration of the Plan. The Committee, by majority action
thereof, is authorized to interpret the Plan, to prescribe,
amend, and rescind rules and regulations relating to the Plan, to
provide for conditions and assurances deemed necessary or
advisable to protect the interests of the Company, and to make
all other determinations necessary or advisable for the
administration of the Plan, but only to the extent not contrary
to the express provisions of the Plan. Determinations,
interpretations, or other actions made or taken by the Committee
in good faith pursuant to the provisions of the Plan shall be
final, binding and conclusive for all purposes and upon all
persons whomsoever.
The Committee shall have the authority, in its discretion,
to determine the Employees to whom Awards shall be granted, the
times when such Awards shall be granted, the number of Awards,
the purchase price or exercise price, the period(s) during which
such Awards shall be exercisable (whether in whole or in part),
the restrictions applicable to Awards, and the other terms and
provisions thereof (which need not be identical). The Committee
shall have the authority to modify existing Awards, subject to
Section 15.1.
Section 5
Stock Subject to Plan
5.1 Number. The total number of shares of Stock subject to
Awards under the Plan may not exceed eight million, subject to
adjustment upon occurrence of any of the events indicated in
Section 5.3. The shares to be delivered under the Plan may
consist, in whole or in part, of authorized but unissued Stock or
treasury Stock, not reserved for any other purpose.
5.2 Lapsed Awards. Subject to the express provisions of the
Plan, if any Award granted under the Plan terminates, expires or
lapses for any reason, or is paid in cash, any Stock subject to
such Award again shall be Stock available for the grant of an
Award. With respect to Awards made to Section 16 insiders, shares
of such Stock may be reused to the maximum extent permitted under
Section 16 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
5.3 Adjustment in Capitalization. In the event of any
change in the outstanding shares of Stock by reason of a Stock
dividend or split, recapitalization, merger, consolidation,
combination, exchange of shares, or other similar corporate
change, the aggregate number of shares of Stock available under
the Plan and subject to each outstanding Award, and its stated
exercise price, or the basis upon which the Award is measured
shall be adjusted appropriately by the Committee, whose
determination shall be conclusive; provided, however, that
fractional shares shall be rounded to the nearest whole share.
Any adjustment to an incentive stock option shall be made
consistent with the requirements of Section 424(b) of the Code.
Section 6
Duration of Plan
6.1 Duration of Plan. The Plan shall remain in effect, subject
to the Board's right to earlier terminate the Plan pursuant to
Section 15 hereof, until all Awards hereunder shall have expired
or terminated or shall have been exercised or fully vested, and
any Stock subject thereto shall have been purchased or acquired
pursuant to the provisions thereof. Notwithstanding the
foregoing, no Award may be granted under the Plan after February
3, 2004.
Section 7
Stock Options
7.1 Grant of Options. Subject to the provisions of Sections
5 and 6, Options may be granted to Participants at any time and
from time to time as shall be determined by the Committee. The
Committee shall have complete discretion in determining the
number of Options granted to each Participant. The Committee may
grant any type of Option to purchase Company Stock that is
permitted by law at the time of grant. To the extent the
aggregate Fair Market Value (determined at the time the Option is
granted) of the Stock with respect to which incentive stock
options are exercisable for the first time by a Participant in
any calendar year (under this Plan and any other plans of the
Company) exceeds $100,000, such Options shall not be deemed
incentive stock options. In determining which Options may be
treated as non-qualified Options under the preceding sentence,
Options will be taken into account in the order of their dates of
grant. No incentive stock option may be granted to any person who
owns, directly or indirectly, more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Company. Nothing in this Section 7 of the Plan shall be deemed to
prevent the grant of nonstatutory stock options in amounts which
exceed the maximum established by Section 422 of the Code.
7.2 Option Agreement. Each Option shall be evidenced by an
Option agreement that shall specify the type of Option granted,
the Option price, the duration of the Option, the number of
shares of Stock to which the Option pertains, and such other
provisions as the Committee shall determine.
7.3 Exercise Price. No Option shall be granted pursuant to
the Plan at an Exercise price that is less than the Fair Market
Value of the Stock on the date the Option is granted, except
Discounted Stock Options described in Section 11.
7.4 Duration of Options. Each Option shall expire at such
time or times as the Committee shall determine at the time it is
granted, provided, however, that no Option shall be exercisable
later than ten years from the date of its grant.
7.5 Exercise of Options. Options granted under the Plan
shall be exercisable at such times and be subject to such
restrictions and conditions as the Committee shall in each
instance approve, which need not be the same for all
Participants.
7.6 Payment. The purchase price of Stock upon exercise of
any Option shall be paid in full either (i) in cash, (ii) in
Stock valued at its Fair Market Value on the date of exercise, or
(iii) by a combination of (i) and (ii) at the discretion of the
Committee. The Committee in its sole discretion may also permit
payment of the purchase price upon exercise of any Option to be
made by (i) having shares withheld from the total number of
shares of common stock to be delivered upon exercise or (ii)
delivering a properly executed notice together with irrevocable
instructions to a broker to promptly deliver to the Company the
amount of sale or loan proceeds to pay the exercise price. The
proceeds from payment of option prices shall be added to the
general funds of the Company and shall be used for general
corporate purposes.
7.7 Restrictions on Stock Transferability. The Committee
shall impose such restrictions on any shares of Stock acquired
pursuant to the exercise of an Option under the Plan as it may
deem advisable, including, without limitation, restrictions under
applicable Federal securities law, under the requirements of any
stock exchange upon which such shares of Stock are then listed
and under any blue sky or state securities laws applicable to
such shares.
7.8 Early Termination of Options on Employment Due to
Death, Disability, or Retirement. If a Participant holds any
outstanding Option upon a termination of employment due to death,
Disability or Retirement, such Option shall remain exercisable
and shall continue to vest following such termination of
employment in accordance with its terms until the earlier of (i)
the expiration date of the term of the Option, or (ii) the last
date on which such Option is exercisable as specified below,
after which date such Option shall terminate.
(a) Death or Disability. If the termination of
employment is due to the Participant's death or Disability, any
outstanding Option then held by such Participant shall continue
to be exercisable (subject to clause (c) below) until twelve (12)
months following the Participant's termination of employment.
(b) Retirement. If the Participant's termination of
employment is due to Retirement, any outstanding Option then held
by such Participant shall continue to be exercisable (subject to
clause (c) below) for three (3) years after such Participant's
termination of employment.
(c) ISO Limit. Notwithstanding the foregoing, in the
case of an incentive stock option, the favorable tax treatment
described in Section 422 of the Code shall not be available if
such Option is exercised after three (3) months following a
termination of employment due to Retirement
7.9 Early Termination of Options on Termination of
Employment Other than for Death, Disability, or Retirement. If a
Participant holds any outstanding Option upon termination of
employment due to a reason other than death, Disability or
Retirement, such Option shall remain exercisable and shall
continue to vest following such termination of employment until
the earlier of (i) the expiration of the term of the Option, or
(ii) the last date on which such Option is exercisable as
specified below, after which date such Option shall terminate.
(a) Resignation, Layoff and Other Events. If the
Participant's termination of employment is due to any reason
other than the Participant's death, Disability, Retirement or the
action of the company for cause, as determined (either before or
after such event) by the Committee in its sole discretion, any
outstanding Option then held by such Participant shall continue
to be exercisable for three (3) months following such
Participant's termination of employment.
(b) Termination by the Company For Cause. If the
Participant's employment is terminated by action of the Company
for cause, as determined (either before or after such event) by
the Committee in its sole discretion, any outstanding Option held
by such Participant shall terminate immediately upon such
Participant's termination of employment. Termination for cause
is defined as termination for conduct that would be punishable as
a felony if such conduct occurred outside the workplace, or
conduct that could be damaging to either the Company's reputation
or financial status. The Committee has the authority to make the
final determination as to whether a termination is for cause for
purposes of the Plan.
7.10 Non-Transferability of Options. No Option granted under
the Plan may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, otherwise than by will or by
the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the rules thereunder. Further, all incentive stock
options granted to a Participant under the Plan shall be
exercisable only by such Participant during his lifetime.
Section 8
Stock Appreciation Rights
8.1 Grant of Stock Appreciation Rights. Subject to the
provisions of Sections 5 and 6, Stock Appreciation Rights
("SARs") may be granted to Participants at any time and from time
to time as shall be determined by the Committee. An SAR grant
shall be in writing.
8.2 Payment of SAR Amount. Upon exercise of the SAR, the
holder shall be entitled to receive payment of an amount
determined by multiplying:
(a) The difference between the Fair Market Value of a
share of Stock at the date of exercise over the price fixed
by the Committee at the date of grant, by
(b) The number of shares with respect to which the SAR
is exercised.
8.3 Form and Timing of Payment. At the sole discretion of
the Committee, payment for SARs may be made in cash or Stock, or
in a combination thereof.
8.4 Rule 16b-3 Requirements. Notwithstanding any other
provision of the Plan, the Committee may impose such conditions
on exercise of an SAR (including, without limitation, the right
of the Committee to limit the time of exercise to specified
periods) as may be required to satisfy the requirements of Rule
16b-3 (or any successor rule), under the Exchange Act.
8.5 Term of SAR. The term of an SAR granted under the Plan
shall not exceed ten years.
8.6 Termination of Employment. In the event the employment
of a Participant is terminated by reason of death, Disability,
Retirement, or any other reason, any SARs outstanding shall
terminate in the same manner as specified for Options under
Sections 7.8 and 7.9 herein.
8.7 Non-Transferability of SARs. No SAR granted under the
Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, otherwise than by will or by the laws
of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code or Title I of ERISA, or
the rules thereunder. Further, all SARs granted to a Participant
under the Plan shall be exercisable only by such Participant
during his lifetime.
Section 9
Restricted Stock
9.1 Grant of Restricted Stock. Subject to the provisions of
Sections 5 and 6, the Committee, at any time and from time to
time, may grant shares of Restricted Stock under the Plan to such
Participants and in such amounts as it shall determine. Each
grant of Restricted Stock shall be in writing.
9.2 Transferability. Except as provided in Section 9.6 and
9.7 hereof, or pursuant to a qualified domestic relations order
as defined by the Code or Title I of ERISA, or the rules
thereunder, the shares of Restricted Stock granted hereunder may
not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated for such period of time as shall be
determined by the Committee and shall be specified in the
Restricted Stock grant, or upon earlier satisfaction of other
conditions as specified by the Committee in its sole discretion
and set forth in the Restricted Stock grant.
9.3 Other Restrictions. The Committee shall impose such
other restrictions on any shares of Restricted Stock granted
pursuant to the Plan as it may deem advisable including, without
limitation, restrictions under applicable Federal or state
securities law, and may legend the certificates representing
Restricted Stock to give appropriate notice of such restrictions.
9.4 Voting Rights. Participants holding shares of
Restricted Stock granted hereunder may exercise full voting
rights with respect to those shares during the Period of
Restriction.
9.5 Dividends and Other Distributions. During the Period of
Restriction, Participants holding shares of Restricted Stock
granted hereunder shall be entitled to receive all dividends and
other distributions paid with respect to those shares while they
are so held. If any such dividends or distributions are paid in
shares of Stock, the shares shall be subject to the same restric-
tions on transferability as the shares of Restricted Stock with
respect to which they were paid.
9.6 Termination of Employment Due to Retirement. In the
event that a Participant attains normal retirement age under the
Company's Salaried Employees Retirement Plan or the Pension Trust
Plan for Employees of Tucson Electric Power Company represented
by IBEW Local 1116, the Period of Restriction applicable to the
Restricted Stock pursuant to Subsection 9.2 hereof shall
automatically terminate and, except as otherwise provided in
Subsection 9.3, the shares of Restricted Stock shall thereby be
free of restrictions and freely transferable. In the event that a
Participant terminates his employment with the Company because of
Early Retirement under the Salaried Employees Pension Plan, any
shares of Restricted Stock still subject to restrictions shall be
forfeited and returned to the Company; provided, however, that
the Committee in its sole discretion may waive the restrictions
remaining on any or all shares of Restricted Stock or add such
new restrictions to those shares of Restricted Stock as it deems
appropriate.
9.7 Termination of Employment Due to Death or Disabili-
ty. In the event a Participant terminates his employment with the
Company because of death or Disability during the Period of
Restriction, the restrictions applicable to the shares of
Restricted Stock pursuant to Section 9.2 hereof shall terminate
automatically with respect to that number of shares (rounded to
the nearest whole number) equal to the number of shares of
Restricted Stock granted to such Participant multiplied by the
number of full months which have elapsed since the date of grant
divided by the maximum number of full months of the Period of
Restriction. All remaining shares still subject to restrictions
shall be forfeited and returned to the Company; provided,
however, that the Committee in its sole discretion, may waive the
restrictions remaining on any or all such remaining shares.
9.8 Termination of Employment for Reasons Other Than Death,
Disability, or Retirement. In the event that a Participant
terminates his employment with the Company for any reason other
than those set forth in Sections 9.6 and 9.7 hereof during the
Period of Restriction, then any shares of Restricted Stock still
subject to restrictions at the date of such termination automati-
cally shall be forfeited and returned to the Company; provided,
however, that, in the event of an involuntary termination of the
employment of a Participant by the Company, the Committee in its
sole discretion may waive the automatic forfeiture of any or all
such shares and/or may add such new restrictions to such shares
of Restricted Stock as it deems appropriate.
Section 10
Performance Units and Performance Shares
10.1 Grant of Performance Units or Performance
Shares. Subject to the provisions of Sections 5 and 6,
Performance Units or Performance Shares may be granted to
Participants at any time and from time to time as shall be
determined by the Committee. The Committee shall have complete
discretion in determining the number of Performance Units or
Performance Shares granted to each Participant.
10.2 Value of Performance Units and Performance Shares. Each
Performance Unit and each Performance Share shall have a value
determined by the Committee at the time of grant. The Committee
shall set performance goals in its discretion which, depending on
the extent to which they are met, will determine the ultimate
value of the Performance Unit or Performance Share to the
Participant. The time period during which the performance goals
must be met shall be called a performance period and shall be
determined by the Committee.
10.3 Form and Timing of Payment. Payment shall be made in
cash, Stock, or a combination thereof as determined by the
Committee. Payment may be made in a lump sum or installments as
prescribed by the Committee. If any payment is to be made on a
deferred basis, the Committee may provide for the payment of
dividend equivalents or interest during the deferral period.
10.4 Termination of Employment Due to Death, Disability, or
Retirement. In the case of death, Disability, or Retirement, the
holder of a Performance Unit or Performance Share (or his
beneficiary in the event of death) shall receive pro rata payment
based on the number of months' service during the performance
period but based on the achievement of performance goals during
the entire performance period. Payment shall be made at the time
payments are made to Participants who did not terminate service
during the performance period.
10.5 Termination of Employment for Other Reasons. In the
event that a Participant terminates employment with the Company
for any reason other than death, Disability or Retirement, all
Performance Units and Performance Shares shall be forfeited;
provided, however, that in the event of an involuntary
termination of the employment of the Participant by the Company,
the Committee in its sole discretion may waive the automatic
forfeiture provisions and pay out on a pro rata basis as set
forth in Section 10.4.
10.6 Non-Transferability. No Performance Units or
Performance Shares granted under the Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or
hypothecated, otherwise than by will or by the laws of descent
and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I of ERISA, or the rules
thereunder, until the termination of the applicable performance
period. All rights with respect to Performance Units and
Performance Shares granted to a Participant under the Plan shall
be exercisable only by such Participant during his lifetime.
Section 11
Discounted Stock Options
11.1 Grant of Discounted Stock Options. Subject to the
provisions of Sections 5 and 6 of the Plan, Discounted Stock
Options may be granted to Participants hereunder. Such Discounted
Stock Options shall satisfy each of the requirements set forth in
Section 7 hereof and the other provisions of this Plan which are
applicable to Option awards which are not intended to be
incentive stock options, except Section 7.3 of the Plan (which
requires the exercise price of an Option to be not less than the
Fair Market Value of the Stock covered by the Option).
11.2 Pricing of Discounted Stock Options. The exercise price
of a Discounted Stock Option shall be determined by the Committee
and set forth in the stock option agreement with the Participant,
but in no event shall such price be less than the greater of
$1.00 or 25 percent of the Fair Market Value of the Stock covered
by the Option on the date the Discounted Stock Option is granted.
Section 12
Beneficiary Designation
12.1 Beneficiary Designation. Each Participant under the
Plan may name, from time to time, any beneficiary or
beneficiaries (who may be named contingently or successively) to
whom any benefit under the Plan is to be paid in case of his
death before he receives any or all of such benefit. Each
designation will revoke all prior designations by the same
Participant, shall be in a form prescribed by the Committee, and
will be effective only when filed by the Participant in writing
with the Committee during his lifetime. In the absence of any
such designation, benefits remaining unpaid at the Participant's
death shall be paid to his estate.
Section 13
Rights of Employees
13.1 Employment. Nothing in the Plan shall interfere with
or limit in any way the right of the Company to terminate any
Participant's employment at any time, nor confer upon any
Participant any right to continue in the employ of the Company.
13.2 Participant. No Employee shall have a right to be
selected as a Participant, or, having been so selected, to be
selected again as a Participant.
Section 14
Change in Control
14.1 In General. In the event of a change in control of the
Company as defined in Section 14.2 below, all Awards under the
Plan shall vest 100%. All Performance Units and Performance
Shares shall be paid out based upon the extent to which
performance goals during the performance period have been met up
to the date of the change in control, or at target, whichever is
higher. Restrictions on Restricted Stock shall lapse. Options and
SAR's shall be immediately exercisable by the holder.
14.2 Definition. For purposes of the Plan, a "change in
control" shall mean any of the following events:
(i) the Company receives a report on Schedule 13D filed
with the Securities and Exchange Commission pursuant to
Section 13(d) of the Exchange Act disclosing that any
person, group, corporation or other entity is the beneficial
owner directly or indirectly of thirty percent or more of
the outstanding Common Stock of the Company;
(ii) any person (as such term is defined in Section
13(d) of the Exchange Act, group, corporation or other
entity other than the Company or a wholly-owned subsidiary
of the Company, purchases shares pursuant to a tender offer
or exchange offer to acquire any common stock of the Company
(or securities convertible into common stock) for cash,
securities or any other consideration, provided that after
consummation of the offer, the person, group, corporation or
other entity in question is the beneficial owner (as such
term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of thirty percent or more of the
outstanding Common Stock of the Company (calculated as
provided in paragraph (d) of Rule 13d-3 under the Exchange
Act in the case of rights to acquire common stock);
(iii) the stockholders of the Company approve (a) any
consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or pursuant
to which shares of Common Stock would be converted into
cash, securities or other property, or (b) any sale, lease,
exchange or other transfer (in one transaction or a series
of related transactions) of all or substantially all of the
assets of the Company; or
(iv) there shall have been a change in a majority of
the members of the Board of Directors of the Company within
a 24 month period unless the election or nomination for
election by the Company's stockholders of each new director
was approved by the vote of two-thirds of the directors then
still in office who were in office at the beginning of the
24 month period.
Section 15
Amendment, Modification, and Termination of Plan
15.1 Amendment, Modification, and Termination of Plan. The
Board at any time may terminate, and from time to time may amend
or modify the Plan, provided, however, that any such action of
the Board, shall be subject to approval of the shareholders, to
the extent required by law.
No amendment, modification, or termination of the Plan or
any Award under the Plan shall in any manner adversely affect any
Award theretofore granted under the Plan, without the consent of
the holder thereof.
Section 16
Tax Withholding
16.1 Tax Withholding. The Company shall have the power to
withhold, or require a Participant to remit to the Company, an
amount sufficient to satisfy federal, state, and local
withholding tax requirements on any Award under the Plan.
To the extent permissible under applicable tax, securities,
and other laws, the Company may, in its sole discretion, permit
the Participant to satisfy a tax withholding requirement by (i)
using already owned shares; (ii) through a cashless transaction;
or (iii) directing the Company to apply shares of stock to which
the Participant is entitled as a result of the exercise of an
option or the lapse of a Period of Restriction (including, for
this purpose, the filing of an election under Section 83(b) of
the Code), to satisfy such requirement.
16.2 Disposition of Shares. In the event that a Participant
shall dispose (whether by sale, exchange, gift, the use of a
qualified domestic relations order as defined by the Code or
Title I of ERISA, or the rules thereunder, or any like transfer)
of any shares of Common Stock of the Company (to the extent such
shares are deemed to be purchased pursuant to an incentive stock
option) acquired by him within two years of the date of grant of
the related option or within one year after the acquisition of
such shares, he will notify the secretary of the Company no later
than 15 days from the date of such disposition of the date or
dates and the number of shares disposed of by him and the
consideration received, if any, and, upon notification from the
Company, promptly forward to the secretary of the Company any
amount requested by the Company for the purpose of satisfying its
liability, if any, to withhold federal, state or local income or
earnings tax or any other applicable tax or assessment (plus
interest or penalties thereon, if any, caused by delay in making
such payment) incurred by reason of such disposition.
Section 17
Indemnification
17.1 Indemnification. Each person who is or shall have been
a member of the Committee or of the Board shall be indemnified
and held harmless by the Company against and from any loss, cost,
liability, or expense that may be imposed upon or reasonably
incurred by him in connection with or resulting from any claim,
action, suit, or proceeding to which he may be a party or in
which he may be involved by reason of any action taken or failure
to act under the Plan and against and from any and all amounts
paid by him in settlement thereof, with the Company's approval,
or paid by him in satisfaction of any judgment in any such
action, suit, or proceeding against him, provided he shall give
the Company an opportunity, at its own expense, to handle and
defend the same before he undertakes to handle and defend it on
his own behalf. The foregoing right of indemnification shall not
be exclusive of any other rights of indemnification to which such
persons may be entitled under the Company's Articles of
Incorporation or Bylaws, as a matter of law, or otherwise, or any
power that the Company may have to indemnify them or hold them
harmless.
Section 18
Requirements of Law
18.1 Requirements of Law. The granting of Awards and the
issuance of shares of Stock upon the exercise of an Option 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.
18.2 Governing Law. The Plan, and all agreements hereunder,
shall be construed in accordance with and governed by the laws of
the State of Arizona.
Section 19
Funding
19.1 Funding of Plan. Except in the case of Awards of
Restricted Stock, the Plan shall be unfunded. The Company shall
not be required to segregate any of its assets to assure the
payment of any Award under the Plan. Neither the Participant nor
any other persons shall have any interest in any fund or in any
specific asset or assets of the Company or any other entity by
reason of any Award, except to the extent expressly provided
hereunder. The interest of each Participant and former
Participant hereunder are unsecured and shall be subject to the
general creditors of the Company.
EXHIBIT 15
January 10, 1995
Tucson Electric Power Company
220 West Sixth Street
Tucson, Arizona 85701
We have made a review, in accordance with standards established by
the American Institute of Certified Public Accountants, of the
unaudited interim financial information of Tucson Electric Power
Company and subsidiaries for the periods ended March 31, 1994 and
1993, June 30, 1994 and 1993, and September 30, 1994 and 1993 as
indicated in our reports dated May 3, 1994, August 1, 1994 and
November 1, 1994, respectively (which included an explanatory
paragraph relating to the timing of the recovery of the costs
associated with 37.5% of Springerville Unit 2 which cannot
presently be determined); because we did not perform an audit, we
expressed no opinion on that information.
We are aware that our reports referred to above, which were
included in your Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994, June 30, 1994, and September 30, 1994, are
being incorporated by reference in this Registration Statement.
We are also aware that the aforementioned reports, pursuant to Rule
436(c) under the Securities Act of 1933, are not considered a part
of the Registration Statement prepared or certified by an
accountant or a report prepared or certified by an accountant
within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Tucson, Arizona
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Tucson Electric Power Company and subsidiaries (the
Company) on Form S-8 of the report of Deloitte & Touche dated
February 9, 1994 (which expresses an unqualified opinion and
includes an explanatory paragraph relating to the timing of the
recovery of the costs associated with 37.5% of Springerville Unit
2 which cannot presently be determined), appearing in the Annual
Report on Form 10-K of the Company for the year ended December 31,
1993.
DELOITTE & TOUCHE LLP
Tucson, Arizona
January 10, 1995
EXHIBIT 4.2
TUCSON ELECTRIC POWER COMPANY
AWARD NOTICE AND OPTION AGREEMENT
Employee Grantee
This Agreement between Tucson Electric Power Company (the "Company")
and ________________________________ (the "Grantee") contains
specific terms and benefits which apply to the Grantee under the
Tucson Electric Power Company 1994 Omnibus Stock and Incentive Plan
("Plan").
1. NOTICE OF AWARD OF STOCK OPTIONS: The Company hereby awards
options to the Grantee to purchase the Company's common stock as
follows:
Incentive Stock Option Grant No. ###
Date of Grant 06/13/1994
Total Number of Options Granted #####
Exercise Price Per Share $ 3.25
Expiration Date of Unexercised Options 06/13/2004
Options shall vest ratably and become exercisable in one-third (1/3)
increments on each anniversary of the grant date. This award is
subject to the: (a) terms and conditions of the Plan; (b) Policies and
Procedures necessary for Plan administration; and (c) provisions of
this Agreement.
2. STATUS OF THE OPTIONS: The options are intended to be
incentive stock options ("ISOs") as defined by Section 422 of the
Internal Revenue Code of 1986, as amended ("IRC"); however, the
Company does not guarantee that the options will qualify as ISOs.
3. NOTICE OF SALES UPON DISQUALIFYING DISPOSITION: The Grantee
agrees to promptly notify the Company's Shareholder Services section
if the Grantee disposes of the shares of common stock acquired through
these options: (a) within one year from the date the Grantee exercises
all or part of the options, or (b) within two years of the date of
grant. For purposes of this section, "disposes" includes holding the
stock in the name of another person as well as any sale or exchange.
During periods described above, the Company may place a legend or
legends on any stock certificate(s) for shares acquired on exercise of
the options, requesting that the Company be notified of any such
transfers. Regardless of the placement of a legend, the Grantee
remains obligated to notify the Company of any such transfer.
4. BINDING EFFECT: This Agreement shall inure to the benefit of the
successors and assigns of the Company and shall be binding upon the
Grantee and the spouse, heirs, executors, administrators, successors
and assigns of the Grantee.
5. INTEGRATED AGREEMENT: This Agreement and the Plan constitute the
entire understanding and agreement of the Grantee and the Company
regarding the Plan and the award of options. There are no other
agreements, understandings, representations or warranties between the
Grantee and the Company other than those set forth or provided for
here or in the Plan. This Agreement does not constitute a contract
for continued employment with the Company. The provisions of this
Agreement and the Plan shall survive any exercise of options, and
shall remain in full force and effect until the exercise or expiration
of the options awarded.
6. SUBJECT TO PLAN: Except as may be specifically set forth herein,
the rights of the Grantee are subject to the terms and conditions of
the Plan, including Policies and Procedures established to effect its
administration. The provisions of the Plan are incorporated by
reference.
7. GOVERNING LAW: This Agreement shall be construed in accordance
with and governed by the laws of the State of Arizona.
IN WITNESS WHEREOF, the Company and Grantee have executed this
Agreement.
TUCSON ELECTRIC POWER COMPANY
Dated: ____________________ By: _________________________
The Grantee represents that he/she is familiar with the terms and
provisions of this Agreement and the Plan, hereby acknowledges receipt
of both documents, and hereby accepts the options subject to all of
the terms and provisions thereof. The Grantee hereby agrees to accept
as binding, conclusive and final all decisions or interpretations of
the Committee (including Policies and Procedures established to
administer the Plan) regarding any questions arising under this
Agreement or the Plan.
GRANTEE
Dated: _____________________ By:
__________________________
TUCSON ELECTRIC POWER COMPANY
AWARD NOTICE AND STOCK OPTION AGREEMENT
Manager/Officer Grantee
This Agreement between Tucson Electric Power Company (the "Company")
and ________________________________ (the "Grantee") contains
specific terms and benefits which apply to the Grantee under the
Tucson Electric Power Company 1994 Omnibus Stock and Incentive Plan
("Plan").
1. NOTICE OF AWARD OF STOCK OPTIONS: The Company hereby awards
options to the Grantee to purchase the Company's common stock as
follows:
Incentive Stock Option Grant No. ###
Date of Grant 06/13/1994
Total Number of Options Granted #####
Exercise Price Per Share $ 3.25
Fair Market Value of Shares on Date of Grant $ 3.18
Expiration Date of Unexercised Options 06/13/2004
Options shall vest ratably and become exercisable in one-third (1/3)
increments on each anniversary of the grant date. This award is
subject to the: (a) terms and conditions of the Plan; (b) Policies and
Procedures necessary for Plan administration; and (c) provisions of
this Agreement.
2. STATUS OF THE OPTIONS: The options are intended to be
incentive stock options ("ISOs") as defined by Section 422 of the
Internal Revenue Code of 1986, as amended ("IRC"); however, the
Company does not guarantee that the options will qualify as ISOs.
3. LIMITATION OF ISO TREATMENT: If the options qualify as ISOs as
intended, preferential tax treatment is limited to the first $100,000
in aggregate fair market value of shares underlying stock options
which are exercisable for the first time during a given calendar year.
Remaining stock options that are first exercisable during the year
will be deemed to be nonqualified stock options.
4. NOTICE OF SALES UPON DISQUALIFYING DISPOSITION: The Grantee
agrees to promptly notify the Company's Shareholder Services section
if the Grantee disposes of the shares of common stock acquired through
these options: (a) within one year from the date the Grantee exercises
all or part of the options, or (b) within two years of the date of
grant. For purposes of this section, "disposes" includes holding the
stock in the name of another person as well as any sale or exchange.
During periods described above, the Company may place a legend or
legends on any stock certificate(s) for shares acquired on exercise of
the options, requesting that the Company be notified of any such
transfers. Regardless of the placement of a legend, the Grantee
remains obligated to notify the Company of any such transfer.
5. BINDING EFFECT: This Agreement shall inure to the benefit of the
successors and assigns of the Company and shall be binding upon the
Grantee and the spouse, heirs, executors, administrators, successors
and assigns of the Grantee.
6. INTEGRATED AGREEMENT: This Agreement and the Plan constitute the
entire understanding and agreement of the Grantee and the Company
regarding the Plan and the award of options. There are no other
agreements, understandings, representations or warranties between the
Grantee and the Company other than those set forth or provided for
here or in the Plan. This Agreement does not constitute a contract
for continued employment with the Company. The provisions of this
Agreement and the Plan shall survive any exercise of options, and
shall remain in full force and effect until the exercise or expiration
of the options awarded.
7. SUBJECT TO PLAN: Except as may be specifically set forth herein,
the rights of the Grantee are subject to the terms and conditions of
the Plan, including Policies and Procedures established to effect its
administration. The provisions of the Plan are incorporated by
reference.
8. GOVERNING LAW: This Agreement shall be construed in accordance
with and governed by the laws of the State of Arizona.
IN WITNESS WHEREOF, the Company and Grantee have executed this
Agreement.
TUCSON ELECTRIC POWER COMPANY
Dated: ____________________ By: _________________________
The Grantee represents that he/she is familiar with the terms and
provisions of this Agreement and the Plan, hereby acknowledges receipt
of both documents, and hereby accepts the options subject to all of
the terms and provisions thereof. The Grantee hereby agrees to accept
as binding, conclusive and final all decisions or interpretations of
the Committee (including Policies and Procedures established to
administer the Plan) regarding any questions arising under this
Agreement or the Plan. The Grantee is aware that exercise of these
options constitutes a purchase for purposes of Section 16(b) of the
Securities Act of 1933.
GRANTEE
Dated: _____________________ By:
__________________________
EXHIBIT 5
January 9, 1995
Tucson Electric Power Company
220 West Sixth Street
Tucson, Arizona 85701
Ladies and Gentlemen:
As General Counsel of Tucson Electric Power Company (the
"Company"), I am supervising the various corporate matters and
proceedings relating to the proposed registration under the
Securities Act of 1933, as amended, of 3,000,000 shares of the
Company's common stock, no par value (the "Common Stock"). The
Common Stock is being registered in connection with the Company's
1994 Omnibus Stock and Incentive Plan as described in the Company's
Registration Statement on Form S-8 to be filed with the Securities
and Exchange Commission.
I am of the opinion that the Company is a corporation
duly organized and existing under the laws of the State of Arizona
and that the Common Stock, upon payment of the purchase price
therefor, will be authorized under the Company's Restated Articles
of Incorporation, as amended, legally issued and validly
outstanding, and fully paid and non-assessable.
I hereby consent to the use of my name in connection with
the Registration Statement and any and all amendments or
supplements thereto, and to the use of this opinion as an Exhibit
to the Registration Statement.
Very truly yours,
DENNIS R. NELSON
----------------
Dennis R. Nelson
General Counsel
