PERFORMANCE SHARE AWARD AGREEMENT PNM RESOURCES, INC. SECOND AMENDED AND RESTATED OMNIBUS PERFORMANCE EQUITY PLAN
Exhibit
10.6
Part
II Award Agreement
PNM
RESOURCES, INC. SECOND AMENDED AND RESTATED
OMNIBUS
PERFORMANCE EQUITY PLAN
PNM
Resources, Inc., a New Mexico corporation, (“PNMR” or the “Company”) hereby
awards to «First» «Last», (the “Participant”) a
Participant in the PNM Resources, Inc. Second Amended and Restated Omnibus
Performance Equity Plan (the “Plan”), as it may be amended, a Performance Share
Award (the “Award”) for shares of Common Stock of Company
(“Stock”). The grant is made effective as of April 27,
2009.
Capitalized
terms used in this Performance Share Award Agreement (the “Agreement”) and not
otherwise defined in this Agreement shall have the meanings given to such terms
in the Plan.
1.
Grant. Company
hereby awards to Participant the opportunity to earn Performance Shares in an
amount equal to the Threshold, Target or Maximum Award levels listed in
Section 4(a) and (b), based upon Company’s performance over the Performance
Period (defined in Section 3), in accordance with and subject to the terms
and conditions set forth in this Agreement. In no event will the
Award exceed the Maximum Award levels indicated in Section 4(a) and
(b). If Participant is a Covered Employee, the Award is intended to
be a Performance-Based Award granted pursuant to Section 12 of the
Plan.
2.
Award
Subject to Plan. This Award is granted pursuant to the Plan,
the terms of which are hereby incorporated by reference.
3.
Performance
Period. The Performance Period for this Award began on
April 1, 2009 and ends on December 31, 2011.
4.
Performance
Goals; Amount of Award. The amount of the Award to which
Participant is entitled pursuant to this Agreement, if any, is based upon the
level of Company’s achievement with respect to the two Performance Goals
described in this Section. Each of the Performance Goals described in
this Section will account for fifty percent of the Participant’s total Award
opportunity.
(a)
Funds
from Operations to Debt (“FFO to Debt”) Ratio Goal: Fifty
percent of Participant’s Award will be determined based upon Company’s FFO to
Debt Ratio during the Performance Period (the “FFO to Debt Ratio Portion”) as
set forth in this Section 4(a).
(i)
FFO to
Debt Ratio Defined. For purposes of this Agreement, the term
FFO to Debt Ratio means Company’s funds from operations (as determined
conclusively by Company) for the fiscal year ending on the last day of the
Performance Period divided by Company’s total debt outstanding, including any
long-term leases and unfunded pension plan obligations, as of the last day of
the Performance Period.
(ii)
FFO to
Debt Ratio Award Levels: Company’s achievement of
the FFO to Debt Ratio Goal will determine the amount of the FFO to Debt Ratio
Portion of the Award to which Participant is entitled as set forth
below:
|
If
Company’s FFO to Debt Ratio over the Performance Period
is:
|
The
FFO to Debt Ratio Portion of the Award to Participant will
be
|
|
Greater
than 15.0% but does not exceed 15.5%
|
[_______]
(the Threshold Award), adjusted as described below.1
|
|
Greater
than 15.5% but does not exceed 16%
|
[_______]
(the Target Award), adjusted as described below.2
|
|
Greater
than 16.0%
|
[_______]
(the Maximum Award), adjusted as described below.3
|
If
Company’s FFO to Debt Ratio for the Performance Period is equal to or less than
15.0% no payment will be due with respect to the FFO to Debt Ratio Portion of
the Award. If Company’s FFO to Debt Ratio for the Performance Period
exceeds 15.0% but does not exceed 15.5%, the FFO to Debt Ratio Portion of
Participant’s Award will be interpolated between the Threshold and Target Award
levels. If Company’s FFO to Debt Ratio for the Performance Period
exceeds 15.5% but does not exceed 16.0%, the FFO to Debt Ratio Portion of
Participant’s Award also will be interpolated between the Target and Maximum
Award levels.
(b)
Environmental
Goal: Fifty percent of Participant’s Award will be determined
based upon Company’s attainment of the Environmental Goal (the “Environmental
Goal Portion”), as set forth in this Section 4(b).
(i)
Environmental
Goal Defined. For purposes of this Agreement, the term
“Environmental Goal” means the reduction in the emission levels of
(1) nitrous oxide, (2) sulfur dioxide, (3) particulate matter,
and (4) mercury (the “Pollutants”) at Company’s San ▇▇▇▇ Generating Station
(“SJGS”) during the Performance Period to levels that are less than the limits
on the emissions of such Pollutants set forth in the Consent Decree entered by
the United States District Court for the District of New Mexico on May 10,
2005 in the case of Grand
Canyon Trust and Sierra Club v. Public Service Company of New Mexico,
Case No. CIV 02-552 (the “Consent Decree”). The Consent Decree limits
are set forth in the following table.
|
Pollutant
|
Consent
Decree Limit
|
|
Nitrous Oxide
|
3.24
pounds/megawatt hour
|
|
Sulfur Dioxide
|
1.51
pounds per megawatt hour
|
|
Mercury
|
90%
removal efficiency4
|
|
Particulates
|
0.16
pounds per megawatt hour
|
Company
will use the following method for determining the level of attainment of the
Environmental Goal: (A) Company will measure the emission levels
of each of the Pollutants from the SJGS over the course of the Performance
Period; (B) Company then will compare the actual emission level for each
Pollutant to the Consent Decree limit; (C) next, Company
will
______________________________
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calculate
the simple percentage variance between the emission of such Pollutant from SJGS
and the limit set forth in the Consent Decree, positive or negative (if the
actual emission level is less than the Consent Decree limit it will result in a
positive percentage variance); (D) Company will then add the percentage
variances for all four Pollutants and divide the sum of such percentage
variances by four to calculate the average variance for the
Pollutants. The average variance for the Pollutants will determine
the level of Company’s attainment of the Environmental Goal.
(ii)
Environmental
Goal Award Levels. Company’s achievement of the Environmental
Goal will determine the amount of the Environmental Goal Portion of the Award to
which Participant is entitled as set forth below:
|
If
the average variance between the level of emission of the Pollutants at
SJGS and the limits set forth in the Consent Decree over the Performance
Period is:
|
The
Environmental Goal Portion of Participant’s Award will
be:
|
|
Greater
than or equal to 10%
|
[______]
Performance Shares (the Threshold Award), adjusted as described
below.5
|
|
Greater
than or equal to 12%
|
[______]
Performance Shares (the Target Award), adjusted as described below.6
|
|
Greater
than or equal to 14%
|
[______]
Performance Shares (the Maximum Award) adjusted as described below.7
|
If the
level of attainment of the Environmental Goal is not greater than or equal to
10%, no payment of the Environmental Goal Portion of the Award will be due
pursuant to this Agreement. If the level of attainment of the
Environmental Goal is greater than 10% but less than 12%, the amount of the
Environmental Goal Portion of the Award to which Participant is entitled will be
interpolated between the Threshold and Target Award levels. If the
level of attainment of the Environmental Goal is greater than 12% but less than
14%, the amount of the Environmental Goal Portion of the Award to which
Participant is entitled also will be interpolated between the Target and Maximum
Award levels.
(iii)
Discretion
to Reduce Environmental Goal Portion of Award. The Committee,
in its sole discretion, may reduce (but not increase) the Environmental Goal
Portion of the Award, if any, to which Participant is entitled based on such
factors as the Committee determines to be appropriate.
5.
Determination
of Performance Goals and Awards Payable. The Committee will
determine the FFO to Debt Ratio and the Environmental Goals for the Performance
Period and the amount of the Award to which Participant is entitled, if any, on
or before February 28, 2012. If payment of an Award to
Participant requires approval of the Board of Directors, the Committee will
submit its recommendation with respect to Participant’s Award to the Board of
___________________________
7 Insert
50% of the total Maximum Award set by the Committee.
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Directors
for approval. No amount will be payable to Participant in the absence
of approval by the Board of Directors.
6.
Vesting
on Termination of Employment.
(a)
Termination
of Employment Due to Death, Disability, Retirement, Impaction or Change in
Control. Upon Participant’s Termination of Employment due to
death, Disability, Retirement, Impaction or Change in Control prior to the end
of the Performance Period, Participant shall vest in a pro rata portion of the
Award to which Participant is entitled at the end of the Performance Period as
described in Section 13.1(a)(iv)(2) of the Plan. The amount of the
Award to which Participant is entitled hereunder shall be determined at the
conclusion of the Performance Period based upon actual performance during the
Performance Period.
(b)
Involuntary
or Voluntary Termination of Employment for Other
Reasons. Subject to Section 6(c), upon Participant’s
involuntary or voluntary Termination of Employment for any reason other than
those set forth in Section 6(a), the Award, if not previously vested, shall be
canceled and forfeited immediately.
(c)
Termination
of Employment for Cause. Upon Participant’s Termination of Employment for
Cause, Participant’s right to any Award hereunder shall be canceled and
forfeited immediately.
7.
Form and
Timing of Delivery of Certificate. On or before March 15,
2012, Participant shall receive a Stock certificate evidencing Participant’s
ownership of the number of Performance Shares, if any, to which Participant is
entitled pursuant to Sections 4 and 5.
8.
Withholding
and Deductions. Company shall have the right to deduct from
any payments made by Company to the Participant, or to require that the
Participant remit to Company, an amount sufficient to satisfy any federal, state
or local taxes of any kind as are required by law to be withheld with respect to
the Performance Shares granted hereunder. Company also shall have the right to
take such other actions as may be necessary in the opinion of Company to satisfy
the tax withholding and payment obligations related to the Performance Shares
granted hereunder. Company may, in its sole discretion, permit the
Participant to elect to satisfy the Participant’s minimum statutory tax
withholding obligation which may arise in connection with the Performance Shares
by requesting that Company withhold shares of Stock having a Fair Market Value
of the Stock equal to the minimum statutory tax withholding. Any such
election shall be subject to the provisions of applicable law and to any
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. Any shares of Stock deliverable to the Participant under the
terms of this Agreement also are subject to offset by Company, and the
Participant hereby authorizes such offset, to liquidate and reduce any
outstanding debt or unpaid sums owed by the Participant to Company or its
successor.
9.
Non-Assignability. The
Award and Participant’s rights under this Agreement shall not be transferable
other than by will or by the laws of descent and distribution. The
Performance Share Award is otherwise non-assignable. (See
Section 14 of the Plan). The terms
4
of this
Agreement and the Plan shall be binding on the executors, administrators, heirs
and successors of Participant.
10.
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
Participant and Company and (b) unless otherwise expressed or provided, in
writing and by an authorized officer, the employment relationship between
Participant and Company shall be defined as “employment at will” wherein either
party, without prior notice, may terminate the relationship with or without
cause.
11.
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 Participant and
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.
12.
Waiver
and Modification. The provisions of this Agreement may not be
waived or modified unless such waiver or modification is in writing signed by
Company.
13.
Validity
and Construction. The validity and construction of this Agreement shall
be governed by the laws of the State of New Mexico.
14. Dividend
Equivalents. Participant is not entitled to receive a dividend
equivalent with respect to the Performance Shares awarded pursuant to this
Agreement.
15.
Compliance
with Exchange Act. If Participant is subject to Section 16 of
the Exchange Act, Performance Shares granted pursuant to this Award are intended
to comply with all applicable conditions of Rule 16b-3 or its successors under
the Exchange Act.
16.
Voting
Rights. Participant will have no voting rights with respect to
the Performance Shares until delivery of the Stock certificate in accordance
with Section 8.
17.
Tax
Issues. Pursuant to Section 83 of the Code, the value of
the Performance Shares will be taxed as ordinary income as of the date
distributed to Participant.
18.
Regulatory
Approvals and Listing. Company shall not be required to issue
any certificate for shares of Stock 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.
19. Adjustments. Neither
the existence of the Plan nor the Award shall affect, in any way, the right or
power of Company to make or authorize any or all adjustments, recapitalizations,
reorganizations, or other changes in Company’s capital structure or its
5
business;
or any merger or consolidation of Company; 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 described in
Section 5.3 of the Plan.
20.
Participant
Representation. As a condition to the receipt of any shares of
Stock hereunder, Company may require a representation from the Participant that
the Stock is being acquired only for investment purposes and without any present
intention to sell or distribute such shares.
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, Company has caused this Performance Share Award Agreement to be
executed on ____________ ___, 2009, by its duly authorized
representative.
PNM
RESOURCES, INC.
By
▇▇▇▇▇ ▇. ▇▇▇▇
Senior
Vice President and
Chief
Administrative Officer