EMPLOYMENT TERMINATION AND RELEASE AGREEMENT
FOR
M. PHYLLIS BOURQUE
THIS EMPLOYMENT TERMINATION AND RELEASE AGREEMENT FOR M. PHYLLIS
BOURQUE ("the "Agreement") by and between the Public Service Company of New
Mexico, a New Mexico corporation, (the "Company") and M. PHYLLIS BOURQUE
("Employee"), is effective as of the date Employee signs the Agreement as set
forth below.
R E C I T A L S
WHEREAS, Employee has been continuously employed by the Company since
March 2, 1987.
WHEREAS, Employee is resigning from the Company effective December 24,
1996 and is also resigning from all other positions she holds with Company, or
its affiliates (including any affiliated entity over which the Company, directly
or indirectly, has a controlling interest (an "Affiliate"));
WHEREAS, the parties desire to compromise all claims and disputes that
may currently exist between them; and
WHEREAS, with respect to the foregoing, the Company has agreed to
provide Employee with severance benefits, pursuant to the following terms and
conditions.
NOW, THEREFORE, in consideration of the promises and benefits set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties hereto, it is hereby agreed as
follows:
1. Employee's Termination. Employee is resigning from the Company and
hereby resigns from any and all other positions she currently holds with Company
and Affiliates thereof, including all officer, committee, and director positions
currently held with such entities, such termination and resignations to be
effective as of December 24, 1996 (the "Termination Date").
2. Severance Benefits. Company agrees to provide Employee with
severance benefits equal to Senior Management Plan severance benefits as set
forth in the PNM Non-Union Severance Pay Plan (the "Severance Plan") as follows:
(a) Severance Pay. Severance Pay totaling $208,964.15.
(b) Placement Assistance. Employee shall also receive
placement assistance benefits by reimbursement of her placement assistance
expenses during the twelve (12) month period following the Termination Date. The
amount of such reimbursement shall not exceed five percent (5%) of Employee's
base salary, for a total reimbursement not to exceed $6,750. Placement
assistance shall include, but shall not be limited to: (i) out-of-town travel
(i.e., airfare, mileage, rental cars, lodging and meals), (ii) services for out
placement, (iii) resume preparation and mailing, and (iv) recruitment or
employment agencies fees.
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(c) Health Care Coverage. Employee shall receive Health Care
Benefits for the next twelve (12) calendar months immediately following
Employee's Termination Date, with the Company paying for all such Health Care
Benefits for Employee and her enrolled eligible dependents on such terms and
conditions as was provided by the Company immediately prior to the Termination
Date. Employee will not be allowed to change her level of benefits (including
the elected family coverage) during such twelve (12) month period. If Employee
was receiving a monthly refund immediately prior to her Termination Date due to
the elected level of Health Care Benefits, she will continue to receive such
refund during such twelve (12) month period. If Employee was required to
contribute to the monthly cost of the Health Care Benefits (e.g., by payroll
withholding), she will be required to continue making any applicable monthly
premium payments to retain the level of coverage being provided immediately
prior to such Termination Date. "Health Care Benefits" as used herein shall mean
the medical and dental benefits provided to Employee under the PNM Benefit Trust
and Master Plan, maintained by the Company or a health maintenance organization
benefits sponsored by the Company, although the Company reserves the right from
time to time, in its absolute and sole discretion, to amend such plans, in any
and all respects, including the right to reduce or change the level of benefits
provided thereunder, or to provide alternative forms of benefits. The Health
Care Benefits provided hereunder for the first six (6) month period shall be tax
free, whereas the second six (6) month period (i) shall be a taxable benefit to
Employee and (ii) shall reduce by six (6) months the available Consolidated
Omnibus Budget Reconciliation Act ("COBRA") medical continuation coverage period
available to Employee.
(d) Insurance Benefits. Term life insurance, accidental death and
dismemberment coverage in the amount of $135,000 for a period of twelve (12)
calendar months immediately following the Termination Date.
3. Payment of Benefits and Health Care and Life Insurance Coverage. The
payment for the benefits described in paragraphs 2 (a) and (b) above, and the
health care and life insurance coverage shall be made to, or arranged for,
Employee at the end of the seven (7) day revocation period for this Agreement,
following Employee's timely execution of this Agreement and without the same
being revoked by Employee.
4. Release Provisions. Various state and federal statutes (laws)
prohibit employment discrimination based on age, sex, race, color, national
origin, religion, ancestry, physical or mental handicap and disability, mental
condition or veteran status. These statutes are enforced through state, federal
and local agencies, including the EEOC and the New Mexico Department of Labor,
Human Rights Division. Employee should carefully consider this Agreement and the
Release provisions of this Section 4, and thoroughly understand its effect
before signing it. Employee is strongly encouraged to consult with her own
attorney before signing this Agreement. Employee understands that the decision
to consult with an attorney is solely the decision of Employee. Employee
acknowledges that she has been given a period of at least twenty-one (21) days
(the "Review Period") to review and consider this Agreement before signing it.
Employee understands that she may use as much of this Review Period as she
wishes prior to signing. Employee may revoke this Agreement within seven (7)
days after signing it and this Agreement will become effective and enforceable
only after this revocation period has expired. Revocation will be made by
returning a copy of this Agreement to JUDY ZANOTTI of the Company with a written
signature in the space provided at the end of the Agreement indicating that
Employee has elected to revoke this Agreement. For this revocation to be
effective, written notice must be received by the Company no later than the
close of business on the seventh (7th) day after Employee signs this Agreement.
If Employee does not sign the Agreement during the Review Period or if she
revokes this Agreement during the seven (7) day revocation period, it shall not
be effective nor enforceable and Employee will not receive the benefits provided
under this Agreement.
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(a) Release of the Company. By signing this Agreement, Employee agrees
to release and discharge the Company and Affiliates, their directors, officers,
agents, supervisors, employees, subsidiaries and successors from any and all
claims which Employee has or may have arising out of or related to Employee's
relationship, in any capacity, with the Company or Affiliates or the termination
of employment with the Company or Affiliates ("Claims"). This Agreement
includes, but is not limited to any Claims arising under Title VII of the Civil
Rights Act, as amended, which prohibits discrimination based on race, color,
national origin, religion, or sex; the Age Discrimination in Employment Act,
which prohibits discrimination based on age; the Equal Pay Act, which prohibits
paying men and women unequal pay for equal work; the Rehabilitation Act of 1973,
which prohibits discrimination based on handicap; the Americans with
Disabilities Act, which prohibits discrimination based upon disability; the
Vietnam Era Veterans Readjustment Act of 1974, which prohibits discrimination
against veterans; the Family Medical Leave Act of 1993 which provides certain
employee's rights with respect to employee absences; the Employee Retirement
Income Security Act of 1974 ("ERISA"), which governs rights in employee benefit
plans; the New Mexico Human Rights Act, which prohibits discrimination based on
race, color, national origin, religion, ancestry, sex, or mental or physical
handicap; or any of these statutes, as amended, as of the date of signing of
this Agreement, or any other federal, state, or local statute, law, executive
order or regulation. This Agreement also includes a release by Employee for any
Claims arising from state or federal common law or statute including any claims
relating to the Company's right to terminate its employees, including but not
limited to any claims for wrongful discharge, retaliatory discharge, breach of
covenant of good faith and fair dealing or breach of employment contract.
Employee also releases the Company, by way of illustration, but not limitation,
for any personal injury or stress damages in connection with her treatment by
the Employer or arising out of her termination. Employee agrees not to file any
lawsuit or assert any Claim, without limitation, based upon the foregoing state
or federal common laws or statutes.
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This Agreement does not extend to a release of the Company for any
benefits payable pursuant to the Agreement, nor to any benefits that Employee
might otherwise be entitled pursuant to any of the Company's pension plans (as
that term is defined in Section 3(2)(A) of ERISA), benefits pursuant to the then
applicable PNM health insurance plans, any health maintenance organization, or
Benefits My Way. Pursuant to 29 U.S.C. ss. 626, this Agreement does not extend
to any claims or rights under the federal Age Discrimination in Employment Act
which may arise out of the actions of the Company or an Affiliate after the date
of this Agreement. Notwithstanding anything herein to the contrary, nothing
herein shall be construed as to abrogate or supersede any obligation or
agreement of the Company or Affiliates that may exist outside of this Agreement,
pursuant to applicable bylaw provisions of the Company or Affiliates, to
indemnify Employee, or to provide Employee with director and officer liability
insurance. This Agreement shall not increase or adversely impact any such rights
or obligations to which Employee may be entitled under such indemnification or
directors and officers liability insurance referred to in the immediately
preceding sentence.
(b) No Release of Employee. The Company and Affiliates do not release
Employee from any claim which the Company or an Affiliate has or may have
against Employee arising out of or relating to Employee's relationship, in any
capacity, with the Company or Affiliates. This Agreement also does not release
Employee for expressly contracted debts or loans due the Company or Affiliates,
evidenced by written notes or agreements, or for willful, wanton or
intentionally wrongful acts, nor does this Agreement extend to matters or events
occurring after the date of this Agreement.
5. Confidential Information.
(a) Employee Acquired Confidential Information. Except as required by
law, Employee agrees to keep confidential all "Confidential Information" (as
defined in this Agreement) obtained during the course of employment with the
Company and the positions she has held with Affiliates. Employee agrees that she
will not reveal any Confidential Information to any other person, corporation or
entity, without the prior written consent from an authorized Company
representative. The term "Confidential Information" as used in this Agreement
means information, written or otherwise, which Employee has received in the
course of her relationship, in any capacity with the Company or Affiliates and
includes, without limitation, all reports, forecasts, contracts, customer
information, confidential commercial information, trade secrets, business
secrets, personnel information or any information that is not available to the
general public. Any information, analysis or interpretation which is public
information as a result of (A) a public filing made by the Company or Affiliates
or (B) information supplied by the Company or Affiliates pursuant to formal
discovery procedures (unless such information, analysis or interpretation is
public as a result of a breach of this Agreement) shall not be considered
Confidential Information.
(b) Confidential Employment Information. PNM and Affiliates agree that,
consistent with current policy, they will only release information confirming
dates of employment and positions held by Employee.
(c) This Agreement Confidential. The parties, and each of them, agree
that this Agreement has been entered into with the understanding that all of the
terms and conditions hereof will remain confidential and that they or their
legal representatives will not, except as provided herein, disclose to any Third
Party the terms and conditions of this Agreement unless the other party hereto
consents in writing to such disclosure. As used herein, "Third Party" means any
person, corporation, partnership, firm, consultant, or governmental entity, or
representatives of any of the foregoing, other than officers, employees and
attorneys of the parties to this Agreement.
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(d) Protective Order. In the event that Employee is requested or
required to disclose the Confidential Information pursuant to Section 5(a), (b)
or (c) above, it is agreed that Employee shall provide the Company with prompt
written notice of such request(s) at least ten (10) days prior to making any
such disclosure and advise whether or not Employee intends to seek an
appropriate protective order to preclude disclosure of such information. If
Employee seeks a protective order, the Company or any Affiliate may join in such
action. If Employee does not seek a protective order, then the Company or an
Affiliate shall have such right to seek a protective order. The parties to the
Agreement agree to cooperate in seeking a protective order if any party hereto
so requests.
If Employee seeks such protective order, without the Company or the
Affiliate joining such action, or if the Company and/or the Affiliate commences
such action, without Employee seeking or joining in such action, then the party
seeking such protective order shall pay the attorney fees and expenses
associated therewith, including the reasonable attorney fees and costs of any
other party to this Agreement who requires such legal counsel to protect her or
its interest pursuant to such action. If Employee or the Company (and/or
Affiliate) both join in such action, then each shall be responsible for her or
its respective attorney fees and costs. If, in the absence of a protective order
or the receipt of a waiver hereunder, a party is legally bound, in the written
opinion of its counsel, to disclose the Confidential Information, it may legally
do so without a breach of this Agreement. PNM and Affiliates shall instruct
their directors, officers, employees, agents and attorneys to maintain the
confidentiality provisions hereof. Notwithstanding the foregoing, all parties
hereby consent to the disclosure of information contained in or related to this
Agreement to the extent required, in the opinion of counsel to a party hereto,
to comply with applicable securities laws and regulations or the laws and
regulations administered by the NMPUC which bind such party.
6. Agreement to Assist Company. Employee agrees to assist the Company
when requested from time to time in the future, such as in providing testimony
or providing information to the Company or its counsel.
7. Accord and Satisfaction. Employee agrees that the payments and
benefits provided for pursuant to this Agreement and the provisions included
hereunder constitute full settlement and satisfaction of all claims released by
Employee as described in Section 4(a), and agrees that this Agreement and the
benefits provided pursuant to this Agreement are not to be construed as an
admission of liability by the Company, Affiliates, or their directors, officers,
supervisors, agents, employees or any other persons or entities being released.
Employee further agrees that acceptance of the payments and benefits provided
under this Agreement constitute a waiver of all rights Employee may have to
pursue any rights and privileges under any internal grievance procedure or
policy.
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8. Entire Agreement. The benefits provided hereunder are in lieu of any
other benefits to which Employee may be eligible under (i) severance plans
(including employment option programs) or agreements maintained by Company or
Affiliates thereof (including any right to receive a notice of position
impaction under Company or Affiliates severance plans, which right is hereby
specifically waived), (ii) executive or employee retention plans or similar type
change in control plans or agreements maintained by Company or Affiliates
thereof, or (iii) any other benefit plan of the Company or its Affiliates not
otherwise mentioned in the following sentence of this paragraph. The benefits
provided hereunder are not, however, in lieu of nor is the Agreement intended to
increase or decrease or in any way impact the benefits otherwise provided to
Employee under plans that are specifically not released by Section 4(a).
9. Payroll Taxes. Any amounts due pursuant to this Agreement shall be
reduced by applicable federal, social security (FICA) (Employee's portion only)
and state payroll withholding taxes.
10. Interpretation and Appeals. The interpretation, administration and
appeals of any dispute regarding this Agreement shall be resolved under the
interpretation, administration and appeal provision of the Severance Plan,
Articles VI and XI thereof, which are incorporated herein by reference.
11. Controlling Laws. This Agreement shall be interpreted under the
laws of the State of New Mexico.
12. Headings. The headings and subheadings in this Agreement are
inserted for convenience and reference only and are not to be used in construing
this Agreement or any provision thereof.
13. Revocation Contingency. It is hereby agreed that the benefits
provided hereunder are contingent upon the Employee properly completing and
delivering this Agreement without revoking the same as otherwise provided in
Section 4 hereof.
14. Signature by Employee. Employee has twenty-one (21) days from the
date this Agreement is delivered to her to sign and return it to the Company. If
she does not sign, as provided below, and return the same within the twenty-one
(21) day period, this Agreement shall no longer be of any force or effect.
Following the signing of the Agreement by Employee, she shall have seven (7)
days to revoke the same by returning a revoked copy of the Agreement to the
Company. The date of the signature and delivery by Employee shall be determined
by the date set forth in the notarial acknowledgment with respect to such
signature.
EMPLOYEE HAS CAREFULLY READ AND FULLY UNDERSTANDS ALL OF THE PROVISIONS
OF THIS TERMINATION AND RELEASE AGREEMENT WHICH SETS FORTH THE ENTIRE AGREEMENT
BETWEEN (I) THE COMPANY AND EMPLOYEE WITH REGARD TO EMPLOYEE'S EMPLOYMENT WITH
THE COMPANY, AND HER TERMINATION AND (II) AFFILIATES AND EMPLOYEE WITH REGARD TO
EMPLOYEE'S EMPLOYMENT WITH AFFILIATES AND TERMINATION. EMPLOYEE HEREBY
ACKNOWLEDGES THAT EMPLOYEE HAS NOT RELIED UPON ANY REPRESENTATION OR STATEMENTS,
WRITTEN OR ORAL, NOT SET FORTH IN THIS DOCUMENT, WITH RESPECT TO THIS AGREEMENT
OR (I) AND (II) ABOVE.
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IN WITNESS WHEREOF, the parties hereto, have signed this Agreement to
be effective as of the date signed and delivered by Employee.
PUBLIC SERVICE COMPANY OF NEW
MEXICO, INC.
By
-------------------------------
BENJAMIN F. MONTOYA,
President and Chief Executive Officer
EMPLOYEE
-----------------------------------
M. PHYLLIS BOURQUE
STATE OF NEW MEXICO )
) ss:
COUNTY OF BERNALILLO )
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1996, by Benjamin F. Montoya, its President and Chief Executive
Officer, on behalf of Public Service Company of New Mexico.
---------------------------------
NOTARY PUBLIC
My commission expires:
---------------------------------
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STATE OF NEW MEXICO )
) ss:
COUNTY OF BERNALILLO )
The foregoing instrument was acknowledged before me this ____
day of _______________, 1996, by M. PHYLLIS BOURQUE.
---------------------------------
NOTARY PUBLIC
My commission expires:
---------------------------------
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REVOCATION
I, M. PHYLLIS BOURQUE, do hereby revoke the attached
Employment Termination and Release Agreement.
--------------------------------
M. PHYLLIS BOURQUE
STATE OF NEW MEXICO )
) ss:
COUNTY OF BERNALILLO )
The foregoing instrument was acknowledged before me this ____
day of ______________, 1996, by M. PHYLLIS BOURQUE.
---------------------------------
NOTARY PUBLIC
My commission expires:
---------------------------------
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