EXHIBIT 99.05
EL PASO ELECTRIC COMPANY
DIRECTORS' RESTRICTED STOCK AWARD AGREEMENT
El Paso Electric Company, a Texas corporation (the "Company"), hereby
grants to Xxxxxx X. Xxxxxxx, Xx. (the "Holder"), pursuant to the provisions of
the El Paso Electric Company 1996 Long-Term Incentive Plan (the "Plan"), a
restricted stock award (the "Award") of 25,000 shares of the Company's Common
Stock, no par value ("Stock"), upon and subject to the restrictions, terms and
conditions set forth below. Capitalized terms not defined herein shall have the
meanings specified in the Plan.
1. Award Subject to Acceptance of Agreement. The Award shall be null and
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void unless the Holder shall (a) accept this Agreement by executing it in the
space provided below and returning it to the Company and (b) execute and return
one or more irrevocable stock powers. As soon as practicable after the Holder
has executed this Agreement and such stock power or powers and returned the same
to the Company, the Company shall cause to be issued in the Holder's name a
stock certificate or certificates representing the total number of shares of
Stock subject to the Award.
2. Rights as a Stockholder. The Holder shall have the right to vote the
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shares of Stock subject to the Award and to receive dividends and other
distributions thereon; provided, however, that a dividend or other distribution
with respect shares of Stock (including, without limitation, a stock dividend or
stock split), other than a regular cash dividend, shall be delivered to the
Company (and the Holder shall, if requested by the Company, execute and return
one or more irrevocable stock powers related thereto) and shall be subject to
the same restrictions as the shares of Stock with respect to which such dividend
or other distribution was made.
3. Custody and Delivery of Certificates Representing Shares. The
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Company shall hold the certificate or certificates representing the shares of
Stock subject to the Award until the restrictions on such Award shall have
lapsed, in whole or in part, pursuant to Paragraph 4 hereof, and the Company
shall as soon thereafter as practicable, subject to Section 5.3, deliver the
certificate or certificates for such shares to the Holder and destroy the stock
power or powers relating to such shares. If such stock power or powers also
relates to shares as to which restrictions remain in effect, the Company may
require, as a condition precedent to delivery of any certificate pursuant to
this Section 3, the execution and delivery to the Company of one or more stock
powers relating to such shares.
4. Restriction Period and Vesting. The restrictions on the Award shall
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lapse (i) with respect to all of the shares of Stock subject to the Award on May
2, 1997, or (ii) earlier in accordance with Section 6.8 of the Plan (the
"Restriction Period").
5. Additional Terms and Conditions of Award.
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5.1. Nontransferability of Award. During the Restriction Period, the
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shares of Stock subject to the Award as to which restrictions remain in effect
may not be transferred by the Holder other than by will, the laws of descent and
distribution or pursuant to beneficiary designation procedures approved by the
Company. Except to the extent permitted by the foregoing, during the
Restriction Period, the shares of Stock subject to the Award as to which
restrictions remain in effect may not be sold, transferred, assigned, pledged,
hypothecated, encumbered or otherwise disposed of (whether by operation of law
or otherwise) or be subject to execution, attachment or similar process. Upon
any attempt to so sell, transfer, assign, pledge, hypothecate or encumber, or
otherwise dispose of such shares, the Award shall immediately become null and
void.
5.2. Investment Representation. The Holder hereby represents and
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covenants that (a) any share of Stock acquired upon the lapse of restrictions
will be acquired for investment and not with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), unless such acquisition has been registered under the Securities Act and
any applicable state securities law; (b) any subsequent sale of any such shares
shall be made either pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws, or pursuant to an
exemption from registration under the Securities Act and such state securities
laws; and (c) if requested by the Company, the Holder shall submit a written
statement, in form satisfactory to the Company, to the effect that such
representation (x) is true and correct as of the date of acquisition of any
shares hereunder or (y) is true and correct as of the date of any sale of any
such shares, as applicable. As a further condition precedent to the delivery to
the Holder of any shares subject to the Award, the Holder shall comply with all
regulations and requirements of any regulatory authority having control of or
supervision over the issuance of the shares and, in connection therewith, shall
execute any documents which the Board or any committee authorized by the Board
shall in its sole discretion deem necessary or advisable.
5.3. Withholding Taxes. (a) As a condition precedent to the delivery to
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the Holder of any shares of Stock subject to the Award, the Holder may, upon
request by the Company, pay to the Company such amount of cash as the Company
may be required, under all applicable federal, state, local or other laws or
regulations, to withhold and pay over as income or other withholding taxes (the
"Required Tax Payments") with respect to the Award. If the Holder shall fail to
advance the Required Tax Payments after request by the Company, the Company may,
in its discretion, deduct any Required Tax Payments from any amount then or
thereafter payable by the Company to the Holder.
(b) The Holder may elect to satisfy his or her obligation to advance the
Required Tax Payments by any of the following means: (1) a cash payment to the
Company pursuant to Section 5.3(a), (2) delivery to the Company of previously
owned whole shares of Stock (which the Holder has held for at least six months
prior to the delivery of such shares or which the Holder purchased on the open
market and for which the Holder has good title, free
and clear of all liens and encumbrances) having a Fair Market Value, determined
as of the date the obligation to withhold or pay taxes first arises in
connection with the Award (the "Tax Date"), equal to the Required Tax Payments,
(3) authorizing the Company to withhold from the shares of Stock otherwise to be
delivered to the Holder pursuant to the Award, a number of whole shares of Stock
having a Fair Market Value, determined as of the Tax Date, equal to the Required
Tax Payments, (4) a cash payment by a broker-dealer acceptable to the Company
through whom the Holder has sold the shares with respect to which the Required
Tax Payments have arisen or (5) any combination of (1), (2) and (3). The
Committee may disapprove an election pursuant to any of clauses (2)-(5) if the
Committee determines, based on the opinion of recognized securities counsel,
that the method so elected would result in liability to the Optionee under
Section 16(b) of the Securities Exchange Act of 1934, as amended, or the
regulations promulgated thereunder. Shares of Stock to be delivered or withheld
may have a Fair Market Value in excess of the minimum amount of the Required Tax
Payments, but not in excess of the amount determined by applying the Holder's
maximum marginal tax rate. Any fraction of a share of Stock which would be
required to satisfy such an obligation shall be disregarded and the remaining
amount due shall be paid in cash by the Holder. No certificate representing a
share of Stock shall be delivered until the Required Tax Payments have been
satisfied in full.
5.4. Adjustment. In the event of any stock split, stock dividend,
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recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of Stock other than a regular cash
dividend, the number and class of securities subject to the Award shall be
appropriately adjusted by the Committee. If any adjustment would result in a
fractional security being subject to the Award, the Company shall pay the Holder
in connection with the vesting, if any, of such fractional security, an amount
in cash determined by multiplying (i) such fraction (rounded to the nearest
hundredth) by (ii) the Fair Market Value on the vesting date. The decision of
the Committee regarding any such adjustment shall be final, binding and
conclusive.
5.5. Compliance with Applicable Law. The Award is subject to the
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condition that if the listing, registration or qualification of the shares
subject to the Award upon any securities exchange or under any law, or the
consent or approval of any governmental body, or the taking of any other action
is necessary or desirable as a condition of, or in connection with, the vesting
or delivery of shares hereunder, the shares of Stock subject to the Award may
not be delivered, in whole or in part, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained, free of
any conditions not acceptable to the Company. The Company agrees to use
reasonable efforts to effect or obtain any such listing, registration,
qualification, consent or approval.
5.6. Decisions of Board or Committee. The Board or the Committee shall
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have the right to resolve all questions which may arise in connection with the
Award. Any interpretation, determination or other action made or taken by the
Board or the Committee regarding the Plan or this Agreement shall be final,
binding and conclusive.
5.7. Agreement Subject to the Plan. This Agreement is subject to the
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provisions of the Plan and shall be interpreted in accordance therewith. The
Holder hereby acknowledges receipt of a copy of the Plan.
6. Miscellaneous Provisions.
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6.1. Successors. This Agreement shall be binding upon and inure to the
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benefit of any successor or successors of the Company and any person or persons
who shall, upon the death of the Holder, acquire any rights hereunder in
accordance with this Agreement or the Plan.
6.2. Notices. All notices, requests or other communications provided for
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in this Agreement shall be made, if to the Company, to Xxxxxx Building, 000
Xxxxx Xxxxxxx, Xx Xxxx, Xxxxx 00000, Attention: Corporate Secretary, and if to
the Holder, to 0000 Xxxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxx #000, Xxxxxx, Xxxxxxx
00000. All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to the party
entitled thereto, (b) by facsimile with confirmation of receipt, (c) by mailing
in the United States mails to the last known address of the party entitled
thereto or (d) by express courier service. The notice, request or other
communication shall be deemed to be received upon personal delivery, upon
confirmation of receipt of facsimile transmission, or upon receipt by the party
entitled thereto if by United States mail or express courier service; provided,
however, that if a notice, request or other communication is not received during
regular business hours, it shall be deemed to be received on the next succeeding
business day of the Company.
6.3. Governing Law. This Agreement, the Award and all determinations made
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and actions taken pursuant hereto and thereto, to the extent not otherwise
governed by the laws of the United States, shall be governed by the laws of the
State of Texas and construed in accordance therewith without giving effect to
conflicts of laws principles.
6.4. Counterparts. This Agreement may be executed in two counterparts
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each of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
EL PASO ELECTRIC COMPANY
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Director
Accepted this 17th day of
January, 1997
/s/ XXXXXX X. XXXXXXX, XX.
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Holder
