SECOND AMENDMENT TO THE
PUBLIC SERVICE COMPANY OF NEW MEXICO
DIRECTOR RESTRICTED STOCK RETAINER PLAN
THIS SECOND AMENDMENT to the Public Service Company of New
Mexico Director Restricted Stock Retainer Plan (the "Second Amendment")
is made this 27th day of April, 1994, by the Public Service Company of
New Mexico (the "Company"). If not defined in this Second Amendment,
capitalized terms contained herein have the meaning as set forth in the
Public Service Company of New Mexico Director Restricted Stock Retainer
Plan (the "Plan").
WHEREAS, the Plan was adopted by the Company, effective as of
the 1992 annual meeting of the stockholders of the Company, held on May
25, 1992;
WHEREAS, pursuant to Section 8.1 of the Plan the Board of
Directors of the Company (the "Board") reserved the right to amend the
Plan; and
WHEREAS, consistent with its authority, the Board approved
the First Amendment to the Plan, effective as of April 16, 1993 (the
"First Amendment").
NOW, THEREFORE, consistent with its authority, the Board
hereby causes the Company to adopt the following further amendments to
the Plan:
1. Article II. is hereby amended as follows:
A. New Sections 2.2A and 2.2B.
are hereby inserted following Section 2.2 and before
Section 2.3., to read as follows:
2.2A. "Cash Election" shall mean
an irrevocable election filed with the Company on or
before the Cash Election Date to receive all (but not
less than all) of the Retainer in cash, in lieu of
Restricted Stock, pursuant to Section 6.1(b).
2.2B. "Cash Election Date" shall
mean the date as described below, on or before which a
Director must make his or her Cash Election:
A. For the Cash Election with respect
to the Grant Date occurring on June 1, 1994, the Cash
Election Date shall be May 26, 1994.
B. For the first year in which a
Director is eligible to receive a Restricted Stock
Grant after the June 1, 1994 Grant Date, the Cash
Election Date shall be the first Annual Meeting Date
coincident with or immediately following the Director's
election or appointment to the Board.
C. For all other Cash Elections, the
Cash Election Date shall be the last day of a
Director's tax year, immediately preceding the tax year
including a Grant Date of a Restricted Stock Grant.
B. Section 2.12 is hereby
amended in its entirety to read as follows:
2.12 "Grant Date" shall mean the
date a Restricted Stock Grant is granted, with the
Grant Date for 1994 being June 1, 1994, and with all
subsequent Grant Dates being on each Annual Meeting
Date thereafter, so long as Restricted Stock Grants
continue to be granted pursuant to Section 6.1 and 6.2.
hereof.
C. Section 2.17 "Retainer" is
hereby amended by adding the following sentence to the
end thereof:
Notwithstanding the foregoing
provisions of this Section 2.17, for the period from
the 1994 Annual Meeting Date to the 1995 Annual Meeting
Date, none of the Retainer shall be earned before the
June 1, 1994 Grant Date.
D. New Sections 2.21 and 2.22
are added as follows:
2.21 "Trust" shall mean the
trust established by the Company of even date herewith
for the purpose of purchasing and holding the
Restricted Stock granted pursuant to Section 6.1(a),
and subsequently distributing such shares to the (i)
Director upon the lapse of restrictions pursuant to
Section 7.4 or (ii) Company upon the forfeiture of such
shares pursuant to Section 7.5.
2.22 "Trustee" shall mean the
Trustee, or its successor, serving as the Trustee of
the Trust.
2. Section 3.3 is hereby amended in its entirety to read as
follows:
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
subject to the same conditions, with respect to each
and every Director receiving such Restricted Stock
Grants.
3. The title of ARTICLE VI. is hereby amended in its
entirety to read as follows:
CASH ELECTION AND GRANT OF RESTRICTED STOCK
4. Section 6.1 is amended in its entirety to read as
follows:
6.1 Cash Election and Restricted
Stock Grants.
(a) Grant of Restricted Stock. Except as
provided for in Section 6.1(b), as of each Grant Date,
each Director shall be given a Restricted Stock Grant
granting such Director shares of Stock, with the
conditions and restrictions as set forth in Section
7.1. hereof. The Retainer amount (if it is not paid in
cash pursuant to Section 6.1(b) or funded with
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 (and not paid in cash, pursuant to
Section 6.1(b)) by the Fair Market Value of the Stock
on the date of the purchase. If the calculation of the
shares granted would result in a fractional share
interest, the number of shares shall be rounded up to
the highest number of full shares, and the Company
shall contribute such additional cash to the Trust,
necessary to acquire full shares. Such Stock shall be
purchased by the Trustee within an administratively
reasonable period of time following the Grant Date.
Each Restricted Stock Grant granted under the Plan
shall be evidenced by a written notice pursuant to
Section 6.3.
(b) Cash Election. On or
before the Cash Election Date, each Director is hereby
given the right to file an irrevocable Cash Election
with the Company electing to receive all (but not less
than all) of the Retainer in cash in lieu of Restricted
Stock. Any cash to be paid to a Director pursuant to a
Cash Election shall be paid to the Director by the
Company within an administratively reasonable period of
time following the Grant Date. If a Director fails to
file a Cash Election on or before the Cash Election
Date with respect to a Grant Date, the Director shall
receive a grant of Restricted Stock on such Grant Date
pursuant to Section 6.1(a).
5. Section 6.4 is hereby amended by adding the following
paragraph to end thereof:
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. Section 7.2(a) is hereby amended in its entirety to read
as follows:
(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.
7. Section 7.4(b) is hereby amended by deleting the term
"Annual Meeting Date" where it appears in the first sentence
and replacing the same with "Grant Date".
8. Except as amended by the First Amendment and this
Second Amendment, the Plan is otherwise unchanged.
IN WITNESS WHEREOF, the Company has caused this Second
Amendment to the Public Service Company of New Mexico Director
Restricted Stock Retainer Plan to be executed and effective, as of the
date and year first above written.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By
BENJAMIN F. MONTOYA, President