Registration No.________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PUBLIC SERVICE COMPANY OF NEW MEXICO
New Mexico 85-0019030
Alvarado Square
Albuquerqe, New Mexico 87158
(505) 241-2700
FIRST RESTATED AND AMENDED
PUBLIC SERVICE COMPANY OF NEW MEXICO
DIRECTOR RETAINER PLAN
MAX MAERKI
Senior Vice President and Chief Financial Officer
PUBLIC SERVICE COMPANY OF NEW MEXICO
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2700
The Commission is requested to mail signed copies of all orders,
notices and communications to :
C. L. MOORE
KELEHER & McLEOD, P.A.
414 Silver Avenue, S. W.
Albuquerque, New Mexico 87103
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share (1) Price (1) Fee
Common Stock
$5.00 par value........ 88,488 Shares $17.4375 $1,543,010 $532.07
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee on the basis of the average of high and low sale price
of the Registrant's Common Stock on the New York Stock Exchange Composite
Transaction Tape on April 30,1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The following documents previously filed with the Securities
and Exchange Commission by the Company (File No. 1-6986) are incorporated by
reference in the Registration Statement:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as filed on February 23, 1996 (the "1995 10-K Report").
2. The Company's Current Report on Form 8-K dated March 13,
1996.
3. The description of the Company's Common Stock contained in
a registration statement filed under the Securities Exchange Act of 1934, as
amended, including any amendment or report filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after
the filing date of the 1995 10-K Report and prior to the filing of a
post-effective amendment which indicates that all securities have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
ITEM 4. Description of Securities.
Not Applicable
ITEM 5. Interests of Named Experts and Counsel.
Not Applicable. It is currently contemplated that the
securities will not be original issuance securities. If that situation should
change, an appropriate opinion of counsel will be filed.
ITEM 6. Indemnification of Directors and Officers.
Section 8 of Article II of the Company's By-Laws contains the
following provisions with respect to indemnification of directors and officers.
Each person who shall have served as a director or an officer
of the Company, or, at the request of the Company, as a
director or an officer of any other corporation, partnership
or joint venture, whether profit or not profit, in which the
Company (a) owns shares of capital stock, (b) has an ownership
interest, (c) is a member, or (d) is a creditor, and
regardless of whether or not such person is then in office,
and the heirs, executors, administrators and personal
representatives of any such person shall be indemnified by the
Company to the full extent of the authority of the Company to
so indemnify as authorized by the law of New Mexico.
<PAGE>
Section 53-11-4.1 of the Business Corporation Act of the State
of New Mexico provides that a corporation shall have power to indemnify any
person made (or threatened to be made) a party to any proceeding (whether
threatened, pending or completed) by reason of the fact that the person is or
was a director (or, while a director, is or was serving in any of certain other
capacities) if: (1) the person acted in good faith; (2) the person reasonably
believed: (a) in the case of conduct in the person's official capacity with the
corporation, that the person's conduct was in its best interests; and (b) in all
other cases, that the person's conduct was at least not opposed to its best
interests; and (3) in the case of any criminal proceeding, the person had no
reasonable cause to believe the person's conduct was unlawful. Indemnification
may be made against judgments, penalties, fines, settlements and reasonable
expenses actually incurred by the person in connection with the proceeding, but
may be limited or unavailable with respect to certain proceedings. In some
instances, indemnification of a director may be mandatory or, upon the
application of a director, may be ordered by a court. Reasonable expenses
incurred by a director may, under certain circumstances, be paid or reimbursed
in advance of a final disposition of a proceeding. Unless limited by its
articles of incorporation, a corporation may (or, as the case may be, shall)
indemnify and advance expenses to an officer of the corporation to the same
extent as to a director under Section 53-11-4.1. Also, unless limited by its
articles of incorporation, a corporation has (1) the power to indemnify and to
advance expenses to an employee or agent of the corporation to the same extent
that it may indemnify and advance expenses to directors under the statute and
(2) additional power to indemnify and to advance reasonable expenses to an
officer, employee or agent who is not a director to such further extent,
consistent with law, as may be provided by its articles of incorporation,
bylaws, general or specific action of its Board of Directors, or contract.
Section 53-11-4.1 was amended in 1987 to provide that the
indemnification authorized thereunder shall not be deemed exclusive of any
rights to which those seeking indemnification may be entitled under the articles
of incorporation, the by-laws, an agreement, a resolution of shareholders or
directors or otherwise. At the Company's 1987 Annual Meeting of Stockholders,
the stockholders approved certain agreements with the Company's directors and
officers relating to indemnification of directors and officers. Such agreements
have been entered into with each director and officer. The agreements provide
for indemnification of directors and officers to the fullest extent permitted by
law, including advancement of litigation expenses where appropriate. The
agreements provide for the appointment of a reviewing party by the Board of
Directors to make a determination whether claimed indemnification is permitted
under applicable law.
Insurance is maintained on a regular basis (and not
specifically in connection with this offering) against liabilities arising on
the part of directors and officers out of their performance in such capacities
or arising on the part of the Company out of its foregoing indemnification
provisions, subject to certain exclusions and to the policy limits.
ITEM 7. Exemption From Registration Claimed.
Not Applicable.
ITEM 8. Exhibits.
Exhibit No. Description
4.1 Restated Articles of Incorporation of the Company as
amended through May 10, 1985 (incorporated by reference
to Exhibit 4-(b) to Registration Statement No. 2-99990
of the Company).
<PAGE>
4.2 Indenture of Mortgage and Deed of Trust dated as of
June 1, 1974, between the Company and The Bank of New
York (formerly Irving Trust Company), as Trustee,
together with the Ninth Supplemental Indenture dated as
of January 1, 1967, the Twelfth Supplemental Indenture
dated as of September 15, 1971, the Fourteenth
Supplemental Indenture dated as of December 1, 1974, and
the Twenty-second Supplemental Indenture dated as of
October 1, 1979 thereto relating to First Mortgage Bonds
of the Company (incorporated by reference to Exhibit
4-(d) to Registration Statement No. 2-99990 of the
Company).
4.3 Portions of sixteen supplemental indentures to the
Indenture of Mortgage and Deed of Trust dated as of June
1, 1947, between the Company and The Bank of New York
(formerly Irving Trust Company), as Trustee, relevant to
the declaration or payment of dividends or the making of
other distributions on or the purchase by the Company of
shares of the Company's Common Stock (incorporated by
reference to Exhibit 4-(e) to Registration Statement No
2-99990 of the Company).
4.4 U. S. $100,000,000 Revolving Credit Agreement dated
as of December 14, 1993 among the Company and the banks
and co-agents named therein (incorporated by reference
to Exhibit 10.57 to Annual Report of the Registrant on
Form 10-K for fiscal year ended December 31, 1993).
4.4.1 Amendment No. 1, dated June 7, 1995 to the U. S.
$100,000,000 Revolving Credit Agreement dated as of
December 14, 1993 among the Company and the banks and
co-agents named therein (incorporated by reference to
Exhibit 10.57.1 to the Quarterly Report of the
Registrant on Form 10-Q for the quarter ended June 30,
1995).
4.5 Reimbursement Agreement, dated as of November 1, 1992
between Public Service Company of New Mexico and
Canadian Imperial Bank of Commerce, New York Agency
(incorporated by reference to Exhibit 4.5 to
Registration Statement No. 33-65418 of the Company).
4.5.1 Amendment No. 1 dated as of July 1, 1994, to the
Reimbursement Agreement dated as of November 1, 1992
between Public Service Company of New Mexico and
Canadian Imperial Bank of Commerce, New York Agency
(incorporated by reference to Exhibit 10.60.1 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1994).
4.5.2 Amendment No. 2 dated as of October 1, 1995, to the
Reimbursement Agreement dated as of November 1, 1992
between Public Service Company of New Mexico and
Canadian Imperial of Commerce, New York Agency
(incorporated by reference to Exhibit 10.60.2 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1995).
23.1 Consent of Arthur Andersen LLP
99.1 First Restated and Amended Public Service Company
of New Mexico Director Retainer Plan
<PAGE>
ITEM 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers of 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 1993;
(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;
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and 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
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
(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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous offering.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by 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 Act and will be governed by the final
adjudication of such issue.
<PAGE>
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 its behalf by the undersigned, thereunto
duly authorized, in the City of Albuquerque, State of New Mexico, on May 06,
1996.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /s/ Benjamin F. Montoya
------------------------------
(Benjamin F. Montoya, President
and Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following persons in
the capacities and on the date indicated. Each person whose signature appears
below hereby authorizes Benjamin F. Montoya, Max Maerki, and Donna Burnett, and
each of them, as attorneys-in fact, to sign in his or her name and behalf,
individually and in each capacity designated below, and to file any amendments,
including post-effective amendments, to this registration statement.
Signature Capacity Date
/s/B. F. Montoya Principal Executive Officer May 06, 1996
-----------------------------
B. F. Montoya and Director
President and Chief
Executive Officer
/s/M. H. Maerki Principal Financial Officer May 06, 1996
-----------------------------
M. H. Maerki
Senior Vice President
and Chief Financial Officer
/s/D. M. Burnett Principal Accounting Officer May 06, 1996
-----------------------------
D. M. Burnett
Corporate Controller
and Chief Accounting Officer
/s/J. T. Ackerman Director May 06, 1996
-----------------------------
J. T. Ackerman
/s/R. G. Armstrong Director May 06, 1996
- ------------------------------
R. G. Armstrong
/s/J. A. Godwin Director May 06, 1996
- -----------------------------
J. A. Godwin
/s/L. H. Lattman Director May 06, 1996
- -----------------------------
L. H. Lattman
/s/M. Lujan, Jr. Director May 06, 1996
- -----------------------------
M. Lujan, Jr.
/s/R. U. Ortiz Director May 06, 1996
- -----------------------------
R. U. Ortiz
/s/R. M. Price Director May 06, 1996
- -----------------------------
R. M. Price
/s/P. F. Roth Director May 06, 1996
- -----------------------------
P. F. Roth
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 13, 1996
included in Public Service Company of New Mexico's Form 10-K for the year ended
December 31, 1995.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Albuquerque, New Mexico
May 6, 1996
EXHIBIT 99.1
FIRST RESTATED AND AMENDED
PUBLIC SERVICE COMPANY OF NEW MEXICO
DIRECTOR RETAINER PLAN
THIS FIRST RESTATED AND AMENDED PUBLIC SERVICE COMPANY OF NEW MEXICO
DIRECTOR RETAINER PLAN is made this 30th day of April, 1996, by the Public
Service Company of New Mexico (the "Company"). The capitalized terms used herein
are defined in Article II.
R E C I T A L S
WHEREAS, the Original Plan was adopted by the Company effective as of
the 1992 Annual Meeting Date and, consistent with the authority of the Board,
the Original Plan was subsequently amended by the First and Second Amendments;
WHEREAS, the primary change resulting from the Second Amendment was to
allow the Directors to receive cash in lieu of Restricted Stock;
WHEREAS, the Board believes it would be appropriate to further change
the Original Plan, subject to shareholder approval, to allow the Directors to
elect to receive Stock Options in addition to Restricted Stock or cash; and
WHEREAS, in order to (i) simplify the Plan document, (ii) incorporate
the changes made by the First and Second Amendments, and (iii) change the Plan
to allow for Stock Options, the Original Plan is being restated.
NOW, THEREFORE, the Original Plan, as amended, is hereby further
amended and restated in its entirety as follows:
ARTICLE I
Purpose
The purpose of the Plan is to provide additional incentives for the
non-employee Directors to perform in the best interests of PNM, its
shareholders, customers and employees, as well as provide a means for members of
the Board to increase their proprietary interest in PNM and respond to
shareholders' concerns about stock ownership by Directors.
ARTICLE II
Definitions
The following words and phrases, when used herein with an initial
capital letter, shall have the same meaning set forth below unless the context
clearly indicates otherwise:
2.1 "Annual Meeting" or "Annual Meeting Date" shall mean the date
established for the annual meeting of the Company's shareholders pursuant to the
Company's Bylaws.
2.2 "Board" shall mean the Board of Directors of Public Service Company
of New Mexico.
2.3 "Cash Election" shall mean an irrevocable election filed with the
Company on or before the Election Date to receive all (but not less than all) of
the Retainer in cash.
<PAGE>
2.4 "Change in Control" shall mean, subject to the exceptions and
modifications set forth at the end of this Section 2.4., those circumstances in
which any of the following shall occur:
(a) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act (as hereinafter defined)) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 20%
or more of the combined voting power of the Company's then outstanding
securities;
(b) during any period of two consecutive years the following
individuals cease, for any reason, to constitute the majority of the
Board:
(i) those directors who at the beginning of such period
constitute the Board, plus
(ii) any new directors whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds (2/3rds) of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved (such new directors being referred to as
"Approved New Directors");
(c) upon the merger or consolidation of the Company with any
other corporation; or
(d) upon the complete liquidation of the Company or the sale
or disposition by the Company of all or substantially all of the
Company's assets.
Section 2.4(a) shall not apply if the "person" as referred to therein
is, or shall be (i) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or (ii) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
In Section 2.4(b), the Approved New Director shall not include a
director designated by a person who has entered into an agreement with the
Company to effect a transaction described in Section 2.4(a), 2.4(c), or 2.4(d)
hereof.
Section 2.4(c) shall not apply to a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 80% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation.
2.5 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
2.6 "Committee" shall mean the Management Development and Compensation
Committee of the Board or any such other committee as may be designated by the
Board to administer the Plan, the membership of such committee not being less
than three members of the Board. All Committee members must be "disinterested
persons", if required to meet the conditions for exemption of the grants under
the Plan from Section 16(b) of the Exchange Act.
2.7 "Company" shall mean Public Service Company of New Mexico.
<PAGE>
2.8 "Director" shall mean any member of the Board who, as of the Grant
Date, is not an employee of the Company.
2.9 "Disability" shall mean the inability of a Director to engage in
any substantially gainful activity by reason of any medically determinable
physical or mental impairment that 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. The permanence and degree of such impairment shall be
supported by medical evidence.
2.10 "Election Date" shall mean the date as described below, on or
before which a Director must make his or her election to receive (i) cash, (ii)
Restricted Stock or (iii) Stock Options. The Election Date shall be the earlier
of:
(a) the date that is six (6) months and one (1) day prior to the
Grant Date to which the election applies; or
(b) the last day of a Director's tax year, immediately preceding
the tax year including the Grant Date to which the election applies.
2.11 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as it may be amended from time to time.
2.12 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
2.13 "Exercise Date" shall mean the date a Recipient holding Stock
Options elects to exercise any or all such Stock Options.
2.14 "Exercise Price" shall mean the Exercise Price of the Stock
Options granted hereunder, which shall be determined by dividing the Retainer by
the number of Stock Options granted to each Recipient and subtracting this
result from the Fair Market Value of one share of Stock on the Grant Date.
Notwithstanding the foregoing, the Exercise Price shall not be less than the
Minimum Exercise Price.
2.15 "Fair Market Value" or "FMV" shall mean:
(a) if Stock for a Restricted Stock Grant is authorized but
unissued Stock, or in the case of a Stock Option Grant, the closing
price of one share of Stock pursuant to the "New York Stock Exchange
Composite Transactions," as reported in the Western Edition of the Wall
Street Journal, on the date such value is determined (or, if Stock is
not traded on such date, on the first immediately preceding business
day on which Stock was so traded); or
(b) if Stock for a Restricted Stock Grant is purchased on the
open market, the average per share price paid to acquire all such Stock
provided to the Directors pursuant to such Restricted Stock Grant.
2.16 "First Amendment" shall mean the first amendment, dated April 16,
1993, to the Original Plan.
2.17 "Grant Date" shall mean the date a Stock Right is granted or cash
is to be distributed pursuant to an Election, with all Grant Dates being on each
Annual Meeting Date, beginning with the 1996 Annual Meeting Date, so long as
Stock Rights continue to be granted pursuant to Section 6.1 and 6.2.
<PAGE>
2.18 "Minimum Exercise Price" shall mean thirty percent (30%) of the
FMV of the Stock on the Grant Date.
2.19 "Original Plan" shall mean the Public Service Company of New
Mexico Director Restricted Stock Retainer Plan as approved at the 1992 Annual
Meeting Date. The Original Plan was further amended by the First and Second
Amendments.
2.20 "Plan" shall mean the First Restated and Amended Public Service
Company of New Mexico Director Retainer Plan, as set forth herein, and as may
hereafter be amended.
2.21 "Recipient" shall mean a Director who receives a Stock Right
pursuant to the terms and conditions of the Plan. Such Director shall remain a
Recipient with respect to a Restricted Stock Grant until all such Restricted
Stock held is either forfeited pursuant to Section 9.4 or such restrictions
lapse pursuant to Section 9.1 hereof. Such Director shall remain a Recipient
with respect to a Stock Option until the Option is exercised or is either
forfeited, pursuant to Section 9.4, or is canceled pursuant to Section 8.6.
2.22 "Restricted Stock Grant" shall mean a grant of Restricted Stock.
2.23 "Restricted Stock" shall mean stock which is granted to a
Recipient pursuant to Section 6.1(c) hereof, to which restrictions are imposed
pursuant to Section 7.2, which restrictions have not yet lapsed pursuant to
Article IX hereof.
2.24 "Restricted Stock Election" shall mean the election by a Recipient
to receive a Restricted Stock Grant.
2.25 "Retainer" shall mean the annual retainer to which each Director
is entitled as a Director of the Company, as may be determined by the Board from
time to time, in effect on the Grant Date.
2.26 "Retirement" shall mean a Recipient's retirement and related
resignation from the Board pursuant to the Board's established "Age 72 Policy"
as set forth in a Board resolution adopted at the special Board meeting on April
30, 1991.
2.27 "Second Amendment" shall mean the second amendment, dated April
27, 1994, to the Original Plan.
2.28 "Stock" shall mean the common stock of the Company.
2.29 "Stock Equivalent" shall mean the number of shares to which Stock
Options can be converted through the exercise thereof. Generally, one Stock
Option can be converted to one share of Stock.
2.30 "Stock Option" shall mean the option to acquire Stock of the
Company granted to Directors pursuant to Section 6.1(b), which is a
non-qualified stock option and shall not qualify as an "incentive stock option"
as defined in the Code.
2.31 "Stock Option Election" shall mean the election by a Recipient to
receive a grant of Stock Options.
2.32 "Stock Option Grant" shall mean a grant of Stock Options.
2.33 "Stock Right" shall mean Restricted Stock or Stock Options.
2.34 "Stock Right Grant" shall mean the granting of a Stock Right.
<PAGE>
2.35 "Termination of Directorship" shall mean the termination of a
Director's membership on the Board, for any reason, including but not limited to
voluntary or involuntary resignation, removal, death, Disability, or failure to
be renominated or reelected.
2.36 "Trust" shall mean the trust established by the Company on April
27, 1994, primarily for the purpose of purchasing and holding the Restricted
Stock granted pursuant to Section 6.1(c), and subsequently distributing such
shares to the (i) Director upon the lapse of restrictions pursuant to Section
9.1 or (ii) Company upon the forfeiture of such shares pursuant to Section 9.4.
The Trust may also be used to acquire Stock, upon the exercise of a Stock
Option, if deemed the most appropriate method to satisfy applicable law.
2.37 "Trustee" shall mean the Trustee, or its successor, serving as the
Trustee of the Trust.
ARTICLE III
Administration of Plan
3.1 Plan Administration. The Plan shall be administered by the
Committee. Subject to the provisions of the Plan, the Committee shall have the
sole and exclusive power, discretion and authority to:
(a) conclusively interpret the provisions of this Plan and
decide all questions of fact arising in its application, including but
not limited to, the right to determine whether an individual satisfies
the requirements to receive Stock Right Grants, and the right to
determine the application of the rights, conditions, restrictions and
forfeitures, set forth herein, if any, with respect to the Stock Right
Grants;
(b) adopt, amend and rescind rules and regulations relating to
this Plan; and
(c) make any other determinations it deems necessary or
advisable, subject only to those determinations which may be reserved
to the Board.
3.2 Quorum and Voting Requirements. A majority of the Committee shall
constitute a quorum. The acts of a majority of the members present at a meeting
at which a quorum is present, or acts unanimously approved in writing by the
Committee, shall be deemed the acts of the Committee.
3.3 Consistency of Grants and Conditions. Notwithstanding any of the
above, all Restricted Stock Grants as of a Grant Date shall be at the same
average per share Fair Market Value, and all Stock Rights shall be subject to
the same conditions, with respect to each and every Director receiving the
particular form of such Stock Right at the same time.
ARTICLE IV
Shares Subject to Plan
4.1 Maximum Shares Available. The aggregate maximum number of shares of
Stock and Stock Equivalents which may be granted under the Plan shall not exceed
100,000 shares, subject to adjustment pursuant to Section 4.3. Shares of Stock
issued shall be authorized and unissued shares or shares purchased on the open
market. If such Stock granted is authorized but unissued Stock, the Committee
shall obtain an opinion of counsel that such issuance pursuant to this Plan
conforms with applicable law and regulatory requirements.
<PAGE>
4.2 Forfeiture of Restricted Stock or Stock Options. Subject to the
limitation set forth in Section 6.2(c), if, for any reason:
(a) any shares of Restricted Stock granted under the Plan are
forfeited under circumstances in which the Recipient received no
benefits of ownership of such Restricted Stock; or
(b) nonvested Stock Options are forfeited,
an equivalent number of shares shall again be available for new granting of
Stock Rights in accordance with the terms hereof. Vested Stock Options that are
canceled for failure to exercise shall not increase the number of shares
available for the granting of new Stock Rights.
4.3 Adjustments. The shares of Stock Rights granted hereunder, and, if
and to the extent allowed by Rule 16b-3 or applicable state law without further
shareholder approval, the aggregate maximum number of shares of Stock subject to
the Plan pursuant to Section 4.1 and 4.2 above, shall be adjusted by the
Committee, as is necessary to prevent dilution or enlargement of such grants in
the event of a stock dividend, stock split-up or share combination, exchange of
shares, recapitalization, merger, consolidation, acquisition of property or
shares, reorganization, liquidation, or the like of or by the Company. For
purposes of any such adjustment, the then outstanding shares of Restricted
Stock, or Stock Equivalents, shall be treated like any other then outstanding
Stock.
ARTICLE V
Effective Date and Term of Plan
Subject to the approval of this Plan by the shareholders of the
Company, the Plan, as restated and amended, shall be effective as of the 1996
Annual Meeting. Stock Right Grants may be made as provided herein for a period
of six years following such effective date. The Plan shall continue in effect
until all matters relating to the Stock Right Grants and administration of the
Plan have been settled.
ARTICLE VI
Cash Elections and Granting of Stock Rights
A Director shall have the right to select among three different
alternatives as to the form in which to receive the Retainer with respect to a
Grant Date. The three alternatives (cash, Stock Options or Restricted Stock) and
various aspects and restrictions with respect to each are set forth in this
Article VI.
6.1 Election Date. On or before the Election Date, each Director is
hereby given the right to make either a Cash Election, Stock Option Election or
a Restricted Stock Election as follows:
(a) Cash Election. If the Director makes a Cash Election, he
or she shall receive all of the Retainer in the form of cash, payable
to the Director by the Company within an administratively reasonable
period of time following the Grant Date.
(b) Stock Option Election. If a Director elects to receive
Stock Options, he or she shall be entitled to receive Stock Options as
set forth in Section 8.1, subject to the terms, conditions and
restrictions as set forth in this Article VI, and Article VIII and IX
hereof.
<PAGE>
(c) Restricted Stock Election. If a Director does not make a
Cash Election or a Stock Option Election as described above, and he or
she either makes a Restricted Stock Election or makes no election at
all, he or she shall be given a Restricted Stock Grant granting such
Director shares of Stock determined pursuant to the remaining
provisions of this Article VI as may be appropriate and Article VII and
IX below.
6.2 Limitations and Procedures.
(a) Generally. Only one alternative form can be elected
pursuant to Section 6.1 (a), (b) or (c) and once elected such form
shall apply to all, but not less than all, of the electing Director's
Retainer due at the immediately following Annual Meeting. Once a form
is elected, it is irrevocable, with respect to the Retainer to which it
applies.
(b) Limitation on Disposition of Stock. Notwithstanding any
contrary provisions herein, any Stock held by a Recipient, obtained
hereunder, whether Restricted Stock, upon which restrictions have
lapsed, or Stock acquired through the exercise of a Stock Option
granted hereunder, shall not be sold, transferred, assigned, pledged,
encumbered or otherwise alienated or hypothecated unless and until six
(6) months has elapsed since the acquisition date of such Stock Rights.
The restriction in this Section 6.2 shall apply only if required to
satisfy the conditions for exemption from Section 16(b) of the Exchange
Act pursuant to Rule 16b-3 promulgated thereunder.
(c) Limitation on the Grant of Stock Rights.
(i) Subject to the limitations set forth in Section
6.2(c)(ii) and (iii) below and in Articles IV and V above, the
Stock Rights shall be granted as of the Grant Date until the
cumulative total of shares of Stock and Stock Equivalents is
no longer available for the granting of Stock Rights as set
forth in Article IV above.
(ii) If, as of any Grant Date, the number of shares
available (including Stock Equivalents) pursuant to Article IV
is less than the total number of Stock Rights that would
otherwise be granted, pursuant to Section 6.1 above, the
Retainer amount pertaining to the said Grant Date shall be
paid in cash, and no further Stock Rights shall be granted
hereunder.
(iii) If:
-the restriction on the number of shares of
Stock and Stock Equivalents granted, pursuant to
Section 6.2(c)(ii) occurs, or
-as of any Grant Date, no shares are
available for a grant pursuant to Article IV, no
Stock Right will thereafter be granted under the
Plan, notwithstanding that forfeitures would
otherwise, in the absence of this restriction, result
in additional shares subsequently becoming available
for such grants pursuant to the provisions of Section
4.2.
6.3 Notice. The Committee shall promptly provide each Recipient with
written notice setting forth:
(a) the number of shares of Restricted Stock granted, or Stock
Options granted,
(b) the Fair Market Value of the shares granted on the
applicable Grant Date, or the Exercise Price of Stock Options so
granted, and
<PAGE>
(c) such other terms and conditions relevant thereto
consistent with the terms and conditions of this Plan, which may be
considered appropriate by the Committee.
6.4 Government and Other Regulatory Requirements. The obligations of
the Company to issue or transfer Stock Rights granted pursuant hereto are
subject to:
(a) compliance with all applicable laws, government rules and
regulations and administrative actions;
(b) the effectiveness of a registration statement under the
Securities Act of 1933, as amended, if deemed necessary or appropriate
by the Company; and
(c) the satisfaction of any listing requirements (or authority
for listing upon official notice of issuance) for each stock exchange
on which outstanding shares of the same class may then be listed.
The Plan is intended to be construed so that participation in the Plan
will be exempt from Section 16(b) of the Exchange Act, pursuant to Rule 16b-3 as
promulgated thereunder, as may be further amended or interpreted by the
Securities and Exchange Commission. In the event that any provision of the Plan
shall be deemed not to be in compliance with such rules, in order to enjoy the
exemption from the Exchange Act, such provision shall be deemed of no force or
effect and the remaining provisions of the Plan shall remain in effect.
6.5 Cash Retainer. Notwithstanding any other contrary provisions in
this Plan, in the event the Company is unable to grant Stock Rights to a
Director pursuant to this Article VI, due to regulatory, legal or contractual
restrictions on the issuing or repurchasing of Stock for the Plan, the Directors
shall receive an appropriate cash retainer in lieu of such Stock Right elected.
ARTICLE VII
Grant of Restricted Stock
7.1 Grant of Restricted Stock. If a Restricted Stock Election is made,
the Retainer amount (if the shares of Stock are not funded through authorized
but unissued shares) shall be paid by the Company to the Trustee (to be held in
trust) within an administratively reasonable period of time following the Grant
Date. The Trustee shall purchase, on behalf of the Director, the number of
shares of Stock equal to the result obtained by dividing the Retainer in effect
on the Grant Date by the Fair Market Value of the Stock (determined pursuant to
Section 2.15(a)) on the date of purchase. If the calculation of shares granted
would result in a fractional share interest, the number of shares shall be
rounded up to the highest number of full shares. The Company shall contribute
such additional cash to the Trust necessary to acquire full shares of Restricted
Stock to be granted. Such Stock shall be purchased by the Trustee within an
administratively reasonable period of time following the Grant Date. Each
Restricted Stock Grant shall be evidenced by a written notice pursuant to
Section 6.3. Restricted Stock shall be subject to the restrictions set forth in
Sections 7.2 through 7.4 and in Article IX.
7.2 Restrictions on Transfer. Restricted Stock shall not be sold,
transferred, assigned, pledged, encumbered or otherwise alienated or
hypothecated, until the date these restrictions set forth in Section 7.2 hereof
lapse in accordance with Article IX.
<PAGE>
7.3 Issuing of Certificates.
(a) The certificates of shares of Restricted Stock granted
pursuant to this Plan shall be issued in the sole name of the
Recipient, but until such restrictions shall have lapsed in accordance
herewith, such certificates shall either be held by:
(i) the Company;
(ii) a custodian designated by the Company; or
(iii) the Trustee.
The Company shall issue, or the custodian or Trustee, as may be
applicable, shall issue, a receipt evidencing any Restricted Stock held
by it issued in the name of the Recipient.
(b) No certificates for Restricted Stock shall be issued in
the name of a Recipient until such Recipient has executed a stock power
in a form acceptable to the Company, authorizing the transfer of the
Restricted Stock. The transfer shall occur only upon the forfeiture of
the Restricted Stock, pursuant to Section 9.4.
7.4 Rights as a Shareholder. Upon issuance of any certificate with
respect to Restricted Stock in the name of the Recipient, the Recipient shall
have all of the rights of a shareholder with respect to the Restricted Stock,
including the right to vote the shares and receive all dividends or other
distributions paid or made with respect to the Restricted Stock, subject to the
restrictions set forth in Section 7.2 and the other terms and conditions of this
Plan. Such rights with respect to such Restricted Stock shall continue unless
and until such shares shall be forfeited in accordance with Section 9.4.
ARTICLE VIII
Granting of and Exercise of Stock Options
8.1 Granting of Stock Options. If a Director elects to receive Stock
Options, he or she shall be entitled to acquire one share of Stock upon exercise
of each Stock Option at the Exercise Price, subject to the limitations of
Article IV and Section 6.2 and the vesting and forfeiture provisions in Article
IX. The number of Stock Options granted to each Director electing to receive
Stock Options on the 1996 Annual Meeting Date shall be one thousand (1,000), and
increased to two thousand (2,000) for grants on each Annual Meeting Date
thereafter. The terms of the Stock Options, and the applicable conditions and
restrictions with respect thereto, shall be set forth in a certificate provided
to the Recipient thereof, within an administratively reasonable period of time
following the Grant Date of such Stock Option.
8.2 Cash Out of Retainer - Impact of Minimum Exercise Price. If a
Director elects Stock Options and if, due to the applicability of the Minimum
Exercise Price, the computed Exercise Price (before applying the Minimum
Exercise Price) is less than the Minimum Exercise Price, the difference between
the Minimum Exercise Price and the computed Exercise Price times the number of
Options granted, shall be paid to the Director within an administratively
reasonable period of time following the Grant Date.
8.3 Timing of Exercise. The Stock Options shall be exercisable at any
time following the vesting as set forth in Article IX hereof, and on or before
the earlier of (i) one (1) year after the date of the Recipient's Termination of
Directorship; or (ii) the tenth anniversary date of the Grant Date of the
Options.
8.4 Time and Method of Payment. The Stock Options shall be exercised by
the Recipient giving written notice to the Company of his or her intent to
exercise the Stock Options, along with the tendering of cash in full payment of
the Exercise Price of the Stock Options being exercised, times the number of
such Stock Options being exercised. Alternatively, in lieu of cash, the Exercise
Price may be paid, in full or in part by the Recipient by assignment and
delivery to the Company of either Stock Options (other than those being
exercised) or Stock of the Company owned by the Recipient, over which he or she
is authorized to transfer, and over which the restrictions imposed by Article
VII, if applicable, have lapsed. The amount credited against the Exercise Price
for Stock being assigned and delivered to the Company shall equal the Fair
Market Value of the Stock (determined pursuant to Section 2.15(a)) on the date
of transfer times the number of shares being assigned and delivered. For the
Stock Options being assigned and delivered to the Company, the credit amount
shall equal the Fair Market Value of the Stock (pursuant to Section 2.15(a)) on
the date of transfer, less the Exercise Price of such Stock Options being
assigned and delivered, times the number of such Stock Options.
<PAGE>
8.5 Exercise Following Recipient's Death. If a Recipient of Stock
Options dies, without having fully exercised his or her Stock Options, the
personal representative or the person receiving such Stock Options from the
Recipient or his or her estate shall have the right to exercise the Stock
Options, that have vested pursuant to Article IX, provided, however, that in no
event may the Stock Options be exercised later than the earlier of (i) ten (10)
years from the Grant Date of such Options or (ii) one (1) year following the
Recipient's Termination of Directorship with the Company.
8.6 Cancellation of Stock Options. Any Stock Options not exercised
within the time periods specified in Sections 8.3 and 8.5 shall be canceled.
8.7 Cash Out Right. Notwithstanding any other contrary provisions in
this Plan, subject to the provisions of applicable law and to conditions the
Committee may determine to be necessary in order to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act, the
Committee, in its sole discretion, may elect to settle all or a portion of a
Stock Option following the exercise thereof by a Recipient, in cash, in lieu of
delivering Stock. Such cash shall be determined based upon the FMV of the Stock
on the date such Stock Option is exercised less the Exercise Price.
ARTICLE IX
Vesting of Stock Options and Lapse of Restrictions on Restricted Stock
9.1 Lapse of Restrictions - Restricted Stock. The restrictions on
Restricted Stock set forth in Section 7.2 hereof shall continue until such
restrictions lapse as set forth in this Section 9.1. Except as set forth in
Section 6.2(b), upon the lapse of such restrictions, such Stock shall cease to
be Restricted Stock and shall be free from all terms and conditions of this Plan
and no longer subject to the restrictions and conditions of Section 7.2 and this
Article IX. Subject to the provisions of Section 9.3, below, the lapse of
restrictions shall occur with respect to one-third of the shares granted
pursuant to a Restricted Stock Grant on the first Annual Meeting Date following
the Grant Date and an additional one-third on each successive Annual Meeting
Date thereafter, until all such restrictions pertaining to a Restricted Stock
Grant shall lapse, but only if the Recipient has remained as a Director of the
Company continuously from the Grant Date of such Restricted Stock to the date of
such lapse. If calculation of one-third of the shares granted would result in a
fractional share interest, the number of shares shall be rounded up to the next
highest number of full shares for each of the first two lapses, with the balance
allocated to the third lapse date.
9.2 Vesting of Options. Subject to the provisions of Section 9.3, all
Stock Options shall vest on the immediately following Annual Meeting Date
following the Grant Date of such Stock Options, but only if the Recipient has
remained as a Director of the Company continuously from the Grant Date of such
Stock Option Grant to the next Annual Meeting Date.
<PAGE>
9.3 Immediate Lapse of Restrictions and Vesting of Stock Options.
Notwithstanding the provisions of Section 9.1 and 9.2 hereof, there will be a
lapse of restrictions with respect to Restricted Stock and a vesting of Stock
Options upon a Recipient's Termination of Directorship as a result of:
(i) the death of such Director;
(ii) the Disability of such Director;
(iii) the Retirement of such Director;
(iv) a Change in Control; or
(v) completion of the Director's elected term, pursuant to
circumstances in which he or she is not reelected for an ensuing term
(regardless of the reason for the Director not being reelected).
9.4 Forfeiture. Except as set forth in Section 9.3, hereof, in the
event of Termination of Directorship all Restricted Stock or nonvested Stock
Options, then owned by such terminating Director, shall be returned to or
canceled by the Company and shall be deemed to have been forfeited by the
Recipient.
9.5 Corporate Reorganization - Impact on Stock Rights. Nothing in
Section 7.2 or this Article IX shall be construed to prohibit any exchange or
conversion of Restricted Stock or Stock Options by operation of law in the event
of a merger, consolidation, reorganization or other similar transaction of or by
the Company which does not constitute a Change in Control, provided that the
stock for or into which the Restricted Stock or the stock options to which the
Stock Options shall be exchanged or converted shall thereafter constitute
Restricted Stock or Stock Options, as applicable, subject to the restrictions in
Section 7.2 and Article IX, as applicable.
ARTICLE X
Termination and Amendment
10.1 Termination and Amendments. Subject to Section 10.2, the Board may
amend, terminate or suspend the Plan at any time, in its sole and absolute
discretion; provided, however, that no such amendment or termination shall
adversely affect the Restricted Stock or Stock Options previously granted
without the written consent of the Recipients holding such Restricted Stock or
Stock Options.
10.2 Other Restrictions on Amendments. If required to satisfy the
conditions for exemption from Section 16(b) of the Exchange Act pursuant to Rule
16b-3 promulgated thereunder or applicable state law:
(a) no amendment that would change the amount, price or timing
of the Restricted Stock Grants or Stock Option Grants, other than to
comport with changes in the Code or ERISA, or the rules and regulations
promulgated thereunder, shall be made more than once every six months;
(b) no amendment shall be made without the approval of the
Company's stockholders that would:
(i) increase the maximum number of shares of Stock
available for grants under Article IV hereof;
(ii) modify the requirements as to eligibility for Stock
Rights under the Plan; or
<PAGE>
(iii) otherwise materially increase the benefits accruing
to participants under the Plan (subject, however, to the
Board's right to establish the Retainer).
The approval of the Company's stockholders for such amendments shall be
solicited in a manner which conforms to the rules and regulations in effect
under the Section 14(a) of the Exchange Act.
ARTICLE XI
Nonexclusivity of the Plan
Nothing contained herein is intended to amend, modify or rescind any
previously approved compensation plans or programs entered into by the Company,
other than the Original Plan. This Plan shall be in addition to any and all
other Company plans or programs. Neither the adoption of this Plan by the Board
nor the submission of the Plan to the Company's stockholders for approval shall
be construed as creating any limitations on the power or authority of the Board
to adopt such other additional incentive or other compensation arrangements as
the Board may deem necessary or desirable.
ARTICLE XII
Miscellaneous
12.1 Withholding Taxes. The Company shall have the right to deduct from
any payments made by the Company to the Directors, any federal, state or local
taxes of any kind required by law to be withheld with respect to Stock Rights or
related cash distributions, or the lapse of restrictions pertaining thereto, or
the Cash Election or to take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for the payment of such taxes.
12.2 No Right of Reelection. Nothing in the Plan or in any instrument
executed pursuant to the Plan will confer upon any Recipient any right to
continue as a Director of the Company, to be renominated by the Board or to be
elected or reelected by the shareholders of the Company.
12.3 Plan Administration Expenses. All expenses of administering the
Plan shall be borne by the Company.
12.4 Headings. The headings of the Articles and their Sections in this
Plan are for convenience of reading only and are not meant to be of substantive
significance and shall not add or detract from the meaning of such Article or
Section.
12.5 Gender and Use of Singular/Plural. The use of the masculine gender
herein shall also include within its meaning the feminine, and the singular
shall include the plural, and the plural shall include the singular, unless the
context clearly indicates to the contrary.
12.6 Applicable Law. The place of administration of the Plan shall be
conclusively deemed to be within the State of New Mexico, and the validity,
construction, interpretation, administration and effect of the Plan and of its
rules and regulations and the rights of any and all Directors having or claiming
to have an interest herein or hereunder shall be governed by and determined
exclusively and solely in accordance with the laws of the State of New Mexico.
12.7 Nonapplicability of ERISA. It is not intended that this Plan be
subject to the requirements of ERISA, and the reference thereto in Section
10.2(a) shall not be interpreted so as to require compliance with ERISA.
IN WITNESS WHEREOF, the Company has caused this First Restated and
Amended Public Service Company of New Mexico Director Retainer Plan to be
executed, effective as of April 30, 1996.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By: /s/ Benjamin F. Montoya
------------------------
BENJAMIN F. MONTOYA
President and Chief Executive Officer
