RESTRICTED STOCK RIGHTS AWARD AGREEMENT PNM RESOURCES, INC. OMNIBUS PERFORMANCE EQUITY PLAN
EXHIBIT
10.2
PNM
RESOURCES, INC.
OMNIBUS
PERFORMANCE EQUITY PLAN
PNM
Resources, Inc., a New Mexico corporation, (“PNMR”
or
the
“Company”) hereby awards to «Name»
(the
“Grantee”), a Participant in the PNM Resources, Inc. Omnibus Performance Equity
Plan (the “Plan”), as it may be amended, a Restricted Stock Rights Award (the
“Award”) for the number of shares of Common Stock of the Company (“Stock”) noted
below. The grant is made effective as of the 14th day of February,
20056
(the
“Grant Date”).
Capitalized
terms used in this Restricted Stock Rights Award Agreement (the “Agreement”) and
not otherwise defined herein shall have the meanings given to such terms in
the
Plan.
1. Grant.
Grantee
is hereby granted a Restricted Stock Rights Award for «Restricted_Stock_Rights_»
shares
of Stock. This Award is granted pursuant to the Plan, the terms of which are
hereby incorporated by reference.
2. Vesting.
(a) Except
as
set forth below, these
Restricted Stock Rights
shall
vest in the following manner: (i)
on
the
first
anniversary of the Grant Date, 33%; (ii)
on
the
second anniversary of the Grant Date, 67%;
and
(ii)
on
the
third
anniversary of the Grant Date, 100%.
(b) Upon
the
termination of the Grantee’s employment due to death, Disability, Retirement, or
Impaction, the Grantee’s nonvested Restricted Stock Rights shall vest as
described in Section 12.1(a)(ii) of the Plan.
(c) Upon
a
Change in Control, the Grantee’s nonvested Restricted Stock Rights shall fully
vest.
(d) Upon
the
involuntary or voluntary termination of employment of Grantee for any reason
other than those set forth in Subparagraphs (b) and (c) above, the Restricted
Stock Rights, if not previously vested, shall be canceled and forfeited
immediately.
(e) Upon
termination of employment with the Company for Cause, all nonvested Restricted
Stock Rights shall be terminated and forfeited immediately.
3. Form
and Timing of Delivery of Certificate.
Within
an administratively reasonable period of time following the lapse of
restrictions and after satisfaction of all applicable withholding requirements,
the Grantee shall receive a stock certificate evidencing Grantee’s ownership of
the shares.
4. Adjustments.
Neither
the existence of the Plan nor this Award shall affect, in any way, the right
or
power of the Company to make or authorize: any or all adjustments,
recapitalizations, reorganizations, or other changes in the Company’s capital
structure or its
business;
or any merger or consolidation of the Company; or the dissolution or liquidation
of the Company; or any sale or transfer of all or any part of its assets or
business; or any corporate act or proceeding, whether of a similar character
or
otherwise; all of which, and the resulting adjustments in, or impact on, the
Award are more fully defined in Section 5.3 of the Plan.
5. Withholding
and Deductions.
In
accordance with Sections 17.1 and 17.2 of the Plan, the Company may
withhold, or require Grantee to remit to the Company, an amount sufficient
to
satisfy any federal, state or local withholding tax requirements.
6. Dividend
Equivalents.
During
the Restricted Period, the Grantee will be entitled to receive a dividend
equivalent for each nonvested Restricted Stock Right. The dividend equivalent
will be paid in cash at the same time as cash dividends are paid to shareholders
of record and will be subject to all applicable withholding requirements. The
amount of the dividend equivalent for each nonvested Restricted Stock Right
will
equal the cash dividend paid on one share of Stock.
7. Compliance
with Exchange Act.
If the
Grantee is subject to Section 16 of the Exchange Act, Restricted Stock Rights
granted pursuant to this Award are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act.
8. Non-Assignability.
The
Award and Grantee’s rights under this Agreement shall not be transferable other
than by will or by the laws of descent and distribution. The Restricted Stock
Rights are otherwise non-assignable. (See Section 13 of the Plan). The terms
hereof shall be binding on the executors, administrators, heirs and successors
of the Grantee.
9. Voting
Rights.
During
the Restricted Period, the Grantee will have no voting rights with respect
to
nonvested Restricted Stock Rights.
10. Grantee
Representation.
As a
condition to the receipt of any shares of Stock hereunder, the Company may
require a representation from the Grantee that the Stock is being acquired
only
for investment purposes and without any present intention to sell or distribute
such shares.
11. Tax
Issues.
Pursuant to Section 83 of the Internal Revenue Code of 1986 (the “Code”)
the value of the shares of Stock received by Grantee will be taxed as ordinary
income as of the date the restrictions lapse (i.e.,
as they
vest). Grantee understands that Grantee may elect to be taxed as of the Grant
Date, rather than as the Restricted Stock Rights vest, by filing an election
under Section 83(b) of the Code with the Internal Revenue Service within 30
days of the Grant Date. The Grantee acknowledges that Grantee should consult
a
tax advisor regarding the consequences of this Award and whether or not to
file
an election under Section 83(b) of the Code. The Grantee also acknowledges
that
the dividend equivalents represent taxable compensation income and are subject
to applicable withholding and employment taxes.
12. Employment
Agreement.
Notwithstanding anything to the contrary contained in this Agreement, (a)
neither the Plan nor this Agreement is intended to create an express or implied
contract of employment for a specified term between the Grantee and the Company
and
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(b)
unless otherwise expressed or provided, in writing, by an authorized officer,
the employment relationship between the Grantee and the Company shall be defined
as “employment at will” wherein either party, without prior notice, may
terminate the relationship with or without cause.
13. Regulatory
Approvals and Listing.
The
Company shall not be required to issue any certificate for shares of Stock
upon
the vesting of Restricted Stock Rights granted under this Agreement prior to
satisfying any regulatory approval, registration, qualification or other
requirements of the Securities and Exchange Commission, the Internal Revenue
Service or any other governmental agency which the Committee, in its sole
discretion, shall determine to be necessary or advisable. (See Section 19.1
of
the Plan).
14. Administration.
This
Agreement shall at all times be subject to the terms and conditions of the
Plan
and the Plan shall in all respects be administered by the Committee in
accordance with the terms of and as provided in the Plan. The Committee shall
have the sole and complete discretion with respect to the interpretation of
this
Agreement and the Plan, and all matters reserved to it by the Plan. The
decisions of the majority of the Committee with respect thereto and to this
Agreement shall be final and binding upon Grantee and the Company. In the event
of any conflict between the terms and conditions of this Agreement and the
Plan,
the provisions of the Plan shall control
15. Waiver
and Modification.
The
provisions of this Agreement may not be waived or modified unless such waiver
or
modification is in writing signed by the Company.
16. Validity
and Construction.
The
validity and construction of this Award shall be governed by the laws of the
State of New Mexico.
MANY
OF THE PROVISIONS OF THIS AWARD AGREEMENT
ARE
SUMMARIES OF SIMILAR PERTINENT PROVISIONS OF THE PLAN. TO THE EXTENT THIS
AGREEMENT IS SILENT ON
AN ISSUE OR THERE IS A CONFLICT BETWEEN THE PLAN AND THIS AGREEMENT, THE PLAN
PROVISIONS SHALL CONTROL.
IN
WITNESS WHEREOF, the Company has caused this Restricted Stock Rights Award
Agreement to be executed, effective as of February 14, 20056.
PNM
RESOURCES, INC.
By :
/s/ XXXXXX X. XXXXXX
XXXXXX
X. XXXXXX
Chairman,
President
and Chief Executive Officer
Grantee
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