EXHIBIT 99.02
EL PASO ELECTRIC COMPANY
RESTRICTED STOCK AWARD AGREEMENT
El Paso Electric Company, a Texas corporation (the "Company"), hereby
grants to James S. Haines, Jr. (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 100,000 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 (a) the Holder shall accept this Agreement by executing it in the
space provided below and returning it to the Company and execute and return one
or more irrevocable stock powers, (b) the Plan is approved by the affirmative
vote of a majority of the shares of Stock present in person or represented in
proxy at the Special Meeting of Shareholders on November 14, 1996 and (c) the
Plan is approved by all necessary regulatory authorities. 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. During the Restriction Period as to any
shares of Stock, cash dividends which would otherwise be payable on any such
shares of will be credited to the Holder in the form of additional unvested
shares of Stock as if the dividend had purchased additional shares at the
closing market price on the date such dividend is paid, and such additional
shares (including shares received as stock dividend or stock split), 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 Company
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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 Section 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. (a) The restrictions on the Award
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shall lapse on the earliest of the following: (i) with respect to one-fifth of
the aggregate number of
shares of Stock subject to the Award on January 1, 1997, and as to an additional
one-fifth of such aggregate number of shares on each anniversary thereof during
the years 1998 through 2001, inclusive, or (ii) in accordance with Section 6.8
of the Plan, or (iii) upon the occurrence of a "Triggering Event" under the
Employment Agreement dated as of April 30, 1996 between the Holder and the
Company (the "Restriction Period").
(b) If the Employment Agreement is terminated during the Restriction Period
for "cause" or by reason of the Holder's "Total Disability" (as such terms are
defined in the Employment Agreement), or by reason of the Holder's voluntary
resignation or retirement or his death, then any shares of Stock as to which
restrictions have not lapsed shall be forfeited.
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. 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 Kayser Building, 100
North Stanton, El Paso, Texas 79901, Attention: Corporate Secretary, and if to
the Holder, to 720 Wakefield, El Paso, Texas 79922. 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/ KENNETH R. HEITZ
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Name: Kenneth R. Heitz
Title: Director
Accepted this 17th day of
January, 1997
/s/ JAMES S. HAINES, JR.
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Holder