EXHIBIT 10.75
PNM RESOURCES, INC.
EXECUTIVE SAVINGS PLAN
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...........................................1
1.1. "Committee"...............................................1
1.2. "Benefits Department".....................................1
1.3. "Board"...................................................1
1.4. "Code"....................................................1
1.5. "Company".................................................1
1.6. "Company Stock"...........................................2
1.7. "Company Stock Fund"......................................2
1.8. "Compensation"............................................2
1.9. "Distribution Election Form"..............................2
1.10. "Investment Fund".........................................2
1.11. "MESP"....................................................2
1.12. "MESP Employer Contribution"..............................2
1.13. "MESP Employer Contribution Account"......................2
1.14. "MESP Matching Contribution"..............................2
1.15. "Participant".............................................2
1.16. "Plan"....................................................2
1.17. "Plan Administrator"......................................2
1.18. "Plan Year"...............................................2
1.19. "Recordkeeper"............................................2
1.20. "Supplemental Deferral Account"...........................3
1.21. "Supplemental Deferral Agreement".........................3
1.22. "Supplemental Deferrals"..................................3
1.23. "Supplemental Employer Account"...........................3
1.24. "Supplemental Employer Credits"...........................3
1.25. "Supplemental Matching Credits"...........................3
1.26. "Valuation Date"..........................................3
ARTICLE II ELIGIBILITY; ADOPTION BY AFFILIATES...................3
2.1. The Eligible Class........................................3
2.2. Selection of Participants.................................3
2.3. Discontinuance of Participation...........................3
2.4. Adoption by Affiliates....................................4
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TABLE OF CONTENTS
(Continued)
Page
ARTICLE III SUPPLEMENTAL DEFERRALS AND CREDITS....................4
3.1. Supplemental Deferral Agreement...........................4
3.2. Supplemental Deferrals....................................4
3.3. Supplemental Matching and Employer Credits................5
3.4. Benefits Not Contingent...................................5
3.5. Allocation Among Affiliates...............................5
ARTICLE IV INVESTMENT OF ACCOUNTS................................5
4.1. Adjustment of Accounts....................................5
4.2. Investment Direction......................................6
4.3. Special Company Stock Fund Provisions.....................7
4.4. Compliance with Securities Laws...........................7
ARTICLE V DISTRIBUTIONS.........................................7
5.1. Right to Receive Distribution.............................7
5.2. Form of Distribution......................................7
5.3. Amount of Distribution....................................8
5.4. Limits on Distributions of Company Stock..................9
5.5. Timing of Distribution....................................9
5.6. Accelerated Withdrawals...................................9
5.7. Beneficiary Designation..................................10
5.8. Withholding..............................................10
5.9. Deductibility............................................10
ARTICLE VI ADMINISTRATION OF THE PLAN...........................10
6.1. Appointment of Committee.................................10
6.2. Majority Rule and Delegation of Ministerial Acts.........10
6.3. Meetings.................................................11
6.4. General Powers and Duties................................11
6.5. Claims...................................................12
6.6. Appeals..................................................12
6.7. Right to Examine Plan Documents and to Submit Materials..13
6.8. Relevance................................................14
6.9. Decisions Final; Procedures Mandatory....................14
6.10. Time For Filing Legal Or Equitable Action................14
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TABLE OF CONTENTS
(Continued)
Page
ARTICLE VII AMENDMENT OR TERMINATION..............................14
7.1. Amendment or Termination..................................14
7.2. Effect of Amendment or Termination........................14
ARTICLE VIII GENERAL PROVISIONS....................................15
8.1. Participant's Rights Unsecured............................15
8.2. Funding Upon A Change In Control..........................15
8.3. No Guaranty of Benefits...................................15
8.4. No Enlargement of Employee Rights.........................15
8.5. Spendthrift Provision.....................................15
8.6. Applicable Law............................................15
8.7. Incapacity of Recipient...................................16
8.8. Successors................................................16
8.9. Unclaimed Benefit.........................................16
8.10. Limitations on Liability..................................16
8.11. Headings for Convenience Only.............................16
8.12. Severability..............................................16
8.13. Conflicts.................................................16
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SECOND RESTATED AND AMENDED
PNM RESOURCES, INC.
EXECUTIVE SAVINGS PLAN
The Public Service Company of New Mexico Executive Savings Plan was
originally effective as of July 1, 1998. Most recently, the Plan was amended and
restated in its entirety, effective as of November 16, 2001. PNM Resources, Inc.
(the "Company" or "PNM") became the parent holding company for Public Service
Company of New Mexico as of December 31, 2001. Effective as of November 27,
2002, the Company assumed the sponsorship of the Public Service Company of New
Mexico Executive Savings Plan and renamed it as the PNM RESOURCES, INC.
EXECUTIVE SAVINGS PLAN (the "Plan"). The Plan is maintained solely for the
purpose of permitting certain key employees of the Company and its affiliates
who participate in the PNM Resources, Inc. Master Employee Savings Plan (the
"MESP") to defer compensation and receive credits under this Plan without
reference to the limitations on contributions in the MESP or those imposed by
the Internal Revenue Code of 1986, as amended. By this document, the Company
amends and restates the Plan in its entirety, effective as of January 1, 2003.
ARTICLE I
DEFINITIONS
When a word or phrase appears in this Plan with the initial letter
capitalized, and the word or phrase does not begin a sentence, the word or
phrase shall generally be a term defined in this Article I. The following words
and phrases used in the Plan with the initial letter capitalized shall have the
meanings set forth in this Article I, unless a clearly different meaning is
required by the context in which the word or phrase is used:
1.1. "Committee" means the committee appointed pursuant to Section 6.1 to assume
certain designated responsibilities in connection with the Plan.
1.2. "Benefits Department" means the organizational unit of the Company with
responsibility for administering benefit programs.
1.3. "Board" means the Board of Directors of the Company, or any authorized
committee of the Board.
1.4. "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any regulations promulgated thereunder.
1.5. "Company" means PNM Resources, Inc., or any affiliate of the Company that
is authorized by the Board of Directors to adopt the Plan and which has adopted
the Plan, and, to the extent provided in Section 8.8 below, any successor
corporation or other entity resulting from a merger or consolidation into or
with the Company or a transfer or sale of substantially all of the assets of the
Company. Affiliates that adopted the Plan prior to the assumption of the
sponsorship of the Plan by the Company, including Public Service Company of New
Mexico, shall continue to participate in the Plan.
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1.6. "Company Stock" means common stock issued by the Company.
1.7. "Company Stock Fund" means the Investment Fund described in Section 4.3.
1.8. "Compensation," for purposes of determining the Supplemental Matching and
Employer Credits, means the Participant's base salary and other elements of
compensation that are considered under the MESP (as it may be amended from time
to time) for purposes of calculating the Participant's MESP Employer and
Matching Contributions, respectively. For purposes of determining the amount of
a Participant's permissible Supplemental Deferrals, "Compensation" means the
Participant's base salary and other elements of compensation that are considered
under the MESP (as it may be amended from time to time) for purposes of
calculating the Participant's MESP pre-tax contributions.
1.9. "Distribution Election Form" means the election form by which a Participant
elects the manner in which his accounts shall be distributed pursuant to Section
5.2(b).
1.10. "Investment Fund" means the hypothetical investment fund or funds
established by the Plan Administrator pursuant to Article IV.
1.11. "MESP" means the PNM Resources, Inc. Master Employee Savings Plan
established effective January 1, 1975, as it may be amended from time to time.
1.12. "MESP Employer Contribution" means the Employer (Nonelective)
Contributions made by the Company for the benefit of a Participant under and in
accordance with the terms of the MESP in any Plan Year.
1.13. "MESP Employer Contribution Account" means the Matching Contributions
Account and/or the Employer Contributions Account established for a Participant
under the MESP.
1.14. "MESP Matching Contribution" means the Matching Contributions made by the
Company for the benefit of a Participant under and in accordance with the terms
of the MESP in any Plan Year.
1.15. "Participant" means an employee of the Company or any affiliate who has
been designated or selected for participation in the Plan pursuant to Section
2.2 and to whom or with respect to whom amounts may be credited under the Plan.
1.16. "Plan" means the PNM Resources, Inc. Executive Savings Plan, as adopted
herein.
1.17. "Plan Administrator" means the Company. Any action to be taken by the Plan
Administrator may be taken by the Company's senior human resources officer.
1.18. "Plan Year" means the calendar year.
1.19. "Recordkeeper" means the entity selected by the Company to keep Plan
records and to adjust accounts pursuant to Section 4.1 of the Plan.
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1.20. "Supplemental Deferral Account" means the account maintained under the
Plan to record amounts deferred under Section 3.2 of the Plan.
1.21. "Supplemental Deferral Agreement" means the written deferral agreement
described in Section 3.1 that is entered into by a Participant with the Company
pursuant to this Plan.
1.22. "Supplemental Deferrals" means the deferrals made by a Participant in
accordance with Section 3.2.
1.23. "Supplemental Employer Account" means the account maintained under the
Plan to record the amounts credited to a Participant in accordance with Section
3.3.
1.24. "Supplemental Employer Credits" means the Employer Credits allocated to a
Participant's Supplemental Employer Account in accordance with Section 3.3.
1.25. "Supplemental Matching Credits" means the Matching Credits allocated to a
Participant's Supplemental Employer Account in accordance with Section 3.3.
1.26. "Valuation Date" shall mean each business day of the Plan Year.
ARTICLE II
ELIGIBILITY; ADOPTION BY AFFILIATES
2.1. The Eligible Class. The purpose of the Plan is to provide deferred
compensation to a select group of management or highly compensated employees.
This group of eligible employees is sometimes referred to as the "top hat
group."
2.2. Selection of Participants. Any employees of the Company or an adopting
affiliate who are Participants in the Plan on the date of adoption of this
amended and restated Plan document will continue as such, subject to the
provisions of Section 2.3. Effective January 1, 2002 (or such later date as may
be established by the Plan Administrator), any employee who is classified as an
"officer" of the Company or an adopting affiliate, shall be a Participant. For
this purpose, an "officer" is someone who occupies the position of Vice
President or higher. The Plan Administrator, in the exercise of its discretion,
and with the concurrence of the Company and/or its Board of Directors, may
select as Participants any other employees of the Company or an adopting
affiliate who the Plan Administrator concludes, in the exercise of its
discretion, are properly included in the top hat group. As noted in Section 2.1,
this Plan is intended to provide benefits only to members of the top hat group.
The Company has determined that all of the current officers are properly
includible in the top hat group.
2.3. Discontinuance of Participation. As a general rule, once an individual is a
Participant, he will continue as such for all future Plan Years until his
retirement or other termination of employment. The Plan Administrator shall
discontinue an individual's participation in the Plan if the Plan Administrator
concludes, in the exercise of its discretion, that the individual is no longer
properly included in the top hat group. If an individual's participation is
discontinued, the individual will no longer be eligible to make deferrals or
receive credits under this Plan. The individual will not be entitled to receive
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a distribution, however, until the termination of his employment, unless the
Plan Administrator, in the exercise of its discretion, directs that a
distribution be made as of an earlier date, in which case the individual's
accounts shall be distributed on the same basis as if the individual's
employment had been terminated. The Participant's accounts will continue to be
adjusted to reflect hypothetical investment earnings or losses in accordance
with Section 4.1 until the accounts are distributed.
2.4. Adoption by Affiliates. An employee of an affiliate may not become a
Participant in the Plan unless the affiliate has previously adopted the Plan. An
affiliate of the Company may adopt this Plan only with the approval of the
Board. By adopting this Plan, the affiliate shall be deemed to have agreed to
assume the obligations and liabilities imposed upon it by this Plan, agreed to
comply with all of the other terms and provisions of this Plan, delegated to the
Plan Administrator, the Benefits Department, and the Committee the power and
responsibility to administer this Plan with respect to the affiliate's
employees, and delegated to the Company the full power to amend or terminate
this Plan with respect to the affiliate's employees.
ARTICLE III
SUPPLEMENTAL DEFERRALS AND CREDITS
3.1. Supplemental Deferral Agreement. In order to make Supplemental Deferrals, a
Participant must execute a Supplemental Deferral Agreement in the form
prescribed by the Benefits Department from time to time. In the Supplemental
Deferral Agreement, the Participant shall agree to reduce his Compensation in
exchange for a Supplemental Deferral in the same amount. The Supplemental
Deferral Agreement shall be delivered to the Benefits Department by the time
specified in Section 3.2(b).
3.2. Supplemental Deferrals.
(a) Amount. Any Participant may elect to defer, pursuant to a Supplemental
Deferral Agreement, the receipt of all or any portion (designated in whole
percentages) of the Compensation otherwise payable to him or her by the Company
or an adopting affiliate in any Plan Year. The amount deferred pursuant to this
paragraph (a) shall be allocated to the Supplemental Deferral Account maintained
for the Participant for such Plan Year.
(b) Timing of Elections. As a general rule, the Supplemental Deferral
Agreement shall be signed by the Participant and delivered to the Benefits
Department prior to January 1 of the Plan Year in which the Compensation to be
deferred is otherwise payable to the Participant. The Supplemental Deferral
Agreement will indicate whether it is to be effective for a single Plan Year or
will remain in effect until properly changed by the Participant. For the Plan
Year in which a Participant first becomes eligible to participate in the Plan,
the Participant may elect to make Supplemental Deferrals from Compensation
otherwise payable in the future during the then current Plan Year by signing and
delivering a Supplemental Deferral Agreement within 30 days after the date on
which he or she is notified by the Benefits Department that he or she is
eligible to participate. Subject to the following, an election made by a
Participant shall be irrevocable with respect to the Plan Year covered by the
election. One time per Plan Year, a Participant may modify or revoke the
election effective for the
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subsequent calendar quarters of the Plan Year by delivering to the Benefits
Department a written instrument prior to the first day of the next calendar
quarter of the Plan Year (i.e., April 1, July 1, or October 1) for which such
modification or revocation is to be effective. Notwithstanding the foregoing
sentence, the elections contained in a Supplemental Deferral Agreement shall be
irrevocable for the Plan Year covered by the election for purposes of the
election to defer Compensation attributable to annual bonuses, awards, or
incentive compensation paid to a Participant.
3.3. Supplemental Matching and Employer Credits. Each Plan Year (or more
frequently), the Recordkeeper shall allocate Supplemental Matching and Employer
Credits to the Participant's Supplemental Employer Account.
(a) Supplemental Matching Credit. The Supplemental Matching Credit shall be
in an amount equal to 75% of the first six percent of Compensation deferred by
the Participant to the Plan pursuant to a Supplemental Deferral Agreement.
(b) Supplemental Employer Credit. The Supplemental Employer Credit shall
equal (i) the MESP Employer Contribution that would have been made on the
Participant's behalf to the MESP for the Plan Year if the contributions were not
limited by the Code (including, particularly, the limitations imposed by
Sections 401(a)(17) and 415 of the Code), reduced by (ii) the MESP Employer
Contributions actually made to the MESP on behalf of the Participant in the Plan
Year.
3.4. Benefits Not Contingent. Deferrals and credits for any Participant under
this Plan are not increased or decreased to the extent a Participant makes or
does not make deferrals under the MESP. The Plan should be interpreted and
administered in a manner that is consistent with this Section 3.4.
3.5. Allocation Among Affiliates. Each affiliate that participates in the Plan
shall bear the costs and expenses of providing benefits accrued by its
employee-Participants during periods while they are employed by that affiliate.
Such costs and expenses shall be allocated among the participating affiliates in
accordance with (a) agreements entered into between the Company and any
participating affiliate, or (b) in the absence of such an agreement, procedures
adopted by the Company.
ARTICLE IV
INVESTMENT OF ACCOUNTS
4.1. Adjustment of Accounts. Except as otherwise provided elsewhere in the Plan,
as of each Valuation Date, each Participant's accounts will be adjusted to
reflect deferrals and credits under Article III and the positive or negative
rate of return on the Investment Funds selected by the Participant pursuant to
Section 4.2(b). The rate of return will be determined by the Recordkeeper
pursuant to Section 4.2(f) and will be credited or charged in accordance with
written policies applied to all Participants. While the accounts will be
adjusted as of each Valuation Date, the Recordkeeper shall only post the
adjustments as of the last business day of each month.
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4.2. Investment Direction.
(a) Investment Funds. Each Participant may direct the hypothetical
investment of amounts credited to his accounts in one or more of the Investment
Funds. The Investment Funds shall include a Company Stock Fund and such other
investment funds as may be available under the MESP. The Investment Funds may be
changed from time to time by the Administration Committee, in its discretion.
(b) Participant Directions. Upon becoming a Participant in the Plan, each
Participant may direct that all of the amounts attributable to his accounts be
invested in a single Investment Fund or may direct that fractional (percentage)
increments of his accounts be invested in such fund or funds as he shall desire
in accordance with such procedures as may be established by the Committee.
Unless the Committee prescribes otherwise, such procedures shall mirror the
procedures established under the MESP for participant investment direction. A
Participant's ability to direct investments into or out of the Company Stock
Fund shall be subject to such procedures as the Company's General Counsel (or
his delegate) may prescribe from time to time to assure compliance with Rule
16b-3 promulgated under Section 16(b) of the Securities Exchange Act of 1934, as
amended, and other applicable requirements. Such procedures also may limit or
restrict a Participant's ability to make (or modify previously made) elections.
(c) Changes and Intra-Fund Transfers. Participant investment directions may
be changed, and amounts may be transferred from one hypothetical Investment Fund
to another, in accordance with the procedures established by the Committee (or,
in the case of the Company Stock Fund, the General Counsel) pursuant to Section
4.2(b). The designation will continue until changed by the timely submission of
a new designation.
(d) Default Selection. In the absence of any designation, a Participant
will be deemed to have directed the investment of his accounts in such
Investment Funds as the Committee, in its sole and absolute discretion, shall
determine.
(e) Impact of Election. The Participant's selection of Investment Funds
shall serve only as a measurement of the value of the Participant's accounts
pursuant to Section 4.1 and Section 4.2 and neither the Company nor the
Committee are required to actually invest a Participant's accounts in accordance
with the Participant's selections.
(f) Rate of Return. Accounts shall be adjusted on each Valuation Date to
reflect investment gains and losses as if the accounts were invested in the
hypothetical Investment Funds selected by the Participants in accordance with
Section 4.2 and charged with any and all reasonable expenses related to the
administration of the Plan including, but not limited to, the reasonable
expenses of carrying out the hypothetical investment directions related to each
account. The earnings and losses determined by the Recordkeeper in good faith
and in its discretion pursuant to this Section shall be binding and conclusive
on the Participant, the Participant's beneficiary and all parties claiming
through them.
(g) Charges. The Committee may direct the Recordkeeper to charge each
Participant's accounts for the reasonable expenses of carrying out investment
instructions directly related to such accounts.
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4.3. Special Company Stock Fund Provisions.
(a) General. A Participant's interest in the Company Stock Fund shall be
expressed in whole and fractional hypothetical units of the Company Stock Fund.
As a general matter, the Company Stock Fund shall track an investment in Company
Stock in the same manner as the MESP's company stock fund. Accordingly, the
value of a unit in the Plan's Company Stock Fund shall be the same as the value
of a unit in the MESP's company stock fund.
(b) Dividends and Stock Splits. If a cash dividend is declared on Company
Stock, the hypothetical equivalent cash dividends attributable to the notional
shares held in the Company Stock Fund shall be "reinvested" into the Company
Stock Fund. If a stock dividend or share split is declared with respect to
Company Stock, a hypothetical equivalent stock dividend or stock split
attributable to the notional shares held in the Company Stock Fund, or any
hypothetical securities issued with respect to the Company Stock Fund shall be
allocated to the Company Stock Fund. All such hypothetical dividends (cash or
stock) or stock splits shall be reflected appropriately in the Participant's
accounts.
4.4. Compliance with Securities Laws. Any election by a Participant to
hypothetically invest any amount in the Company Stock Fund, and any elections to
transfer amounts from or to the Company Stock Fund to or from any other
Investment Fund, shall be subject to all applicable securities law requirements,
including but not limited to Rule 16b-3 promulgated by the Securities Exchange
Commission. To the extent that any election violates any securities law
requirement, the election shall be void.
ARTICLE V
DISTRIBUTIONS
5.1. Right to Receive Distribution. Following a Participant's termination of
employment for any reason, including death or "Change in Control" (as defined in
the Company's Employees' Retirement Plan, or any successor plan), the
Participant's interest in this Plan will be distributed to the Participant at
the time and in the manner provided in Sections 5.5 and 5.2. A transfer of a
Participant from the Company to an affiliate that is authorized by the Board of
Directors to adopt the Plan and that has adopted the Plan shall not be deemed a
termination and such transfer shall not trigger a distribution of benefits under
this Plan.
5.2. Form of Distribution.
(a) Company Stock Fund. Subject to Sections 5.2(c) and 5.4, the portion of
a Participant's accounts that is allocated to the Company Stock Fund shall be
distributed in a single lump sum payment in whole shares of Company Stock (with
fractional shares paid for in cash) unless the Participant elects to receive a
cash distribution. The election to receive cash or Company Stock shall be made
at the time and in the manner provided in the form prescribed by the Benefits
Department from time to time for that purpose. Any election made by a
Participant pursuant to this Section with respect to a distribution from the
Company Stock Fund shall be subject to all applicable securities law
requirements, including but not limited to, Rule 16b-3. Any election that may
not be implemented due to the lack of any available exemption shall be void. The
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Benefits Department may then make the distribution in any fashion that will not
result in a violation of any applicable securities law requirements. The
Benefits Department also may delay the distribution if necessary. An exemption
to the securities law requirements that is only available with the prior
approval of the Board, the shareholders, or some other individual or
individuals, shall not be considered to be available unless such approval is
actually granted in a timely manner.
(b) Non-Company Stock Investment Funds. Subject to Section 5.2(c), the
portion of a Participant's accounts that is not allocated to the Company Stock
Fund shall be distributed in cash in a single lump sum payment, installments, or
in the form of an annuity. Installments and annuity distributions shall be
subject to such uniform rules and procedures as may be adopted by the Plan
Administrator from time to time. The method of payment shall be selected by the
Participant in the initial Distribution Election Form (which may be contained in
a Supplemental Deferral Agreement) submitted by the Participant to the Benefits
Department on entry into the Plan or following the adoption of this amended and
restated Plan, whichever is later. A Participant may change his distribution
election by filing a new Distribution Election Form with the Benefits
Department. A revised Distribution Election Form will be honored only if at
least one year elapses between (1) the date on which such new Distribution
Election Form is filed with the Benefits Department and (2) the date on which
the Participant terminates employment with the Company. If a revised
Distribution Election Form is not honored because it was not timely filed,
distributions shall be made pursuant to the most recent Distribution Election
Form filed by the Participant at least one year prior to the Participant's
termination. If no valid Distribution Election Form exists (or if the only valid
form was filed within the one year period described above), the Participant's
accounts will be distributed in a single lump sum.
(c) Limitations on Distributions and Intra-Fund Transfers. Amounts
transferred pursuant to Section 4.2(c) to or from the Company Stock Fund shall,
for a one-year period, continue to be subject to the distribution elections
applicable to such amounts (as adjusted for earnings or losses) pursuant to
Sections 5.2(a) and (b) as if no transfer had taken place. For example, if a
Participant transfers $25,000 to the Company Stock Fund from other Investment
Funds on January 1, 2002, then that transferred $25,000, as adjusted for
subsequent earnings or losses, shall continue to be distributable in cash
pursuant to the distribution method elected pursuant to Section 5.2(b) until
January 1, 2003. If the Participant had transferred $25,000 from the Company
Stuck Fund into the other Investment Funds, then the transferred amount, as
adjusted for subsequent earnings or losses, would be distributable in cash in
the form of a lump sum pursuant to Section 5.2(a) until January 1, 2003. Only
amounts actually invested in the Company Stock Fund, for the requisite one-year
period, however, shall be distributable in Company Stock.
5.3. Amount of Distribution. The amount distributed to a Participant shall equal
the sum of the amounts credited to the Participant's Supplemental Deferral
Account and Supplemental Employer Account as of the quarterly Valuation Date
next following the Participant's termination of employment. For purposes of this
Plan, a "quarterly Valuation Date" is a Valuation Date that coincides with the
last business day of a calendar quarter. Shares of Company Stock that are
distributed in cash will be valued at the closing price of the Company Stock on
the New York Stock Exchange on the relevant quarterly Valuation Date.
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5.4. Limits on Distributions of Company Stock. Notwithstanding anything to the
contrary in this Plan, no individual officer or director of the Company may
receive a distribution of Company Stock that exceeds more than one percent of
the Company Stock that was outstanding as of the date of the adoption of this
amendment and restatement of the Plan. Moreover, all Company Stock issued under
this Plan, shall be limited to the amount of Company Stock that may be issued
pursuant to Section 312.03(a)(4)(ii) of the New York Stock Exchange Listed
Company Manual (generally, considering all Company plans, five percent of the
Company Stock outstanding as of the date of the adoption of this amendment and
restatement of the Plan).
5.5. Timing of Distribution. Funds will be distributed within an
administratively reasonable period of time (generally ten working days)
following the applicable quarterly Valuation Date, unless prohibited by the
Company's cash position.
5.6. Accelerated Withdrawals. A Participant who is a current employee may elect
to receive an accelerated withdrawal of the entire portion of his accounts that
is subject to accelerated withdrawal pursuant to Section 5.6(a) by filing a
written election with the Benefits Department. Only one accelerated withdrawal
may be elected during any 12-month period. Accelerated withdrawals of amounts
allocated to the Company Stock Fund may be limited as described in paragraph
(a). Participants who have terminated employment, regardless of whether they
have elected or begun receiving installment or annuity payments pursuant to
Section 5.2(b), may not elect to receive an accelerated withdrawal.
(a) Amount of Withdrawal. An accelerated withdrawal pursuant to this
Section 5.6 shall be limited to the lesser of (1) 50% of the value of the
Participant's accounts, including any amounts invested in the Company Stock
Fund, or (2) the amount that may be charged against the Participant's accounts
pursuant to Section 5.6(d). For purposes of determining the amount to be
distributed, the Participant's accounts shall be valued as of the effective date
of the withdrawal and shall be paid as soon as reasonably possible thereafter.
(b) Forfeiture. A Participant who elects an accelerated withdrawal pursuant
to this Section 5.6 shall forfeit an amount equal to 10% of the amount withdrawn
as of the day on which the accelerated withdrawal is distributed to the
Participant.
(c) Suspension of Participation. Any Participant who elects to receive an
accelerated withdrawal pursuant to this Section 5.6 shall be suspended from
making Supplemental Deferrals or receiving Supplemental Matching or Employer
Credits for 12 months from the date that the accelerated withdrawal is paid to
the Participant. Upon expiration of the 12-month suspension period, the
Participant shall be permitted to execute a new Supplemental Deferral Agreement
pursuant to Section 3.2(b) and to begin making Supplemental Deferrals as of the
first day of the first payroll period in any subsequent calendar quarter of the
Plan Year.
(d) Allocation of Amount Withdrawn and Forfeiture. The amount withdrawn and
any forfeiture will be charged to the Participant's accounts in accordance with
such procedures as may be adopted from time to time by the Plan Administrator.
Withdrawals from the Company Stock Fund, however, shall be subject to such
procedures as the Company's General Counsel (or his delegate) may prescribe from
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time to time to assure compliance with Rule 16b-3 promulgated under Section
16(b) of the Securities Exchange Act of 1934, as amended, and other applicable
securities law requirements. If the Participant is unable, pursuant to the
preceding sentence, to withdraw amounts invested in the Company Stock Fund, then
(1) no portion of the withdrawal or forfeiture will be charged against the
amount allocated to the Company Stock Fund, and (2) the withdrawal and
forfeiture shall be limited to the amount of the Participant's accounts that are
invested in Investment Funds other than the Company Stock Fund
5.7. Beneficiary Designation. If a Participant should die before receiving a
full distribution of his or her Supplemental Deferral and Employer Accounts,
distribution shall be made to the beneficiary designated by the Participant. If
a Participant has not designated a beneficiary, or if no designated beneficiary
is living on the date of distribution, such amounts shall be distributed to
those persons entitled to receive distributions of the Participant's accounts
under the MESP. The distributions made under this Plan shall be made in a lump
sum.
5.8. Withholding. All distributions will be subject to all applicable tax and
withholding requirements.
5.9. Deductibility. All amounts distributed from the Plan are intended to be
deductible by the Company or the appropriate adopting affiliate. If all or any
portion of a distribution will not be deductible, the payment of the
nondeductible portion will be postponed until the first year in which it may be
deducted. The distribution will be made during the first 60 days of such year.
The unpaid amounts will continue to be adjusted pursuant to Article IV until the
accounts have been distributed.
ARTICLE VI
ADMINISTRATION OF THE PLAN
6.1. Appointment of Committee. The Company's Benefits Governance Committee,
referred to in this Plan as the "Committee," shall have authority to administer
the Plan. The Committee shall consist of such members as may be appointed by the
Company. The Company may remove any member of the Committee at any time and a
member may resign by written notice to the Company. Any vacancy in the
membership of the Committee shall be filled by appointment made by the Company,
but pending the filling of such vacancy the existing members of the Committee
may act hereunder as though they alone constitute the full Committee. The
Company may delegate its authority under this Section 6.1 to the Company's Chief
Executive Officer.
6.2. Majority Rule and Delegation of Ministerial Acts. Any and all acts and
decisions of the Committee shall, if there is more than one member, be by at
least a majority of the current members, but the Committee may delegate to any
one or more of its members or any other person the authority to sign notices or
other documents on its behalf or to perform ministerial acts for it, in which
event any other person may accept such notice, document or act without question
as having been authorized by the Committee. If the majority of the current
members of the Committee are unable to agree to an act or decision, the
Committee shall seek instructions from the Company.
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6.3. Meetings. The Committee may, but need not, call or hold formal meetings,
and any decisions made or actions taken pursuant to written approval of a
majority of the current members shall be sufficient. The Committee shall
maintain adequate records of its decisions and those records shall be subject to
inspection by the Company. Also, the Committee may designate one of its members
as Chairman, and one of its members as Secretary, and may establish policies and
procedures governing it so long as the same are not inconsistent with the terms
of this Plan.
6.4. General Powers and Duties.
(a) General. The Committee shall perform the duties and exercise the powers
and discretion given to it in this Plan document and its decisions and actions
shall be final and conclusive as to all persons affected thereby. The Company
and the adopting affiliates shall furnish the Committee with all data and
information that the Committee may reasonably require in order to perform its
functions. The Committee may rely without question upon any such data or
information.
(b) Disputes. Any and all disputes that may arise involving Participants or
beneficiaries shall be referred to the Committee and its decision shall be
final. Furthermore, if any question arises as to the meaning, interpretation or
application of any provisions of this Plan, the decision of the Committee shall
be final.
(c) Conflicts of Interests. Notwithstanding any other provision of this
Plan, during any period in which two or more Committee members are acting, no
member of the Committee shall vote or act as a member of the Committee upon any
matter involving the member's own rights, benefits or other participation
hereunder. If a member of the Committee is recused pursuant to the preceding
sentence, then the remaining Committee members may act as if they alone
constitute the full Committee.
(d) Agents. The Committee may engage agents, including actuaries, to assist
it and may engage legal counsel who may be counsel for the Company. The
Committee shall not be responsible for any action taken or omitted to be taken
on the advice of such counsel, including written opinions or certificates of any
agent, counsel, actuary or physician.
(e) Insurance. At the Committee's request, the Company shall purchase
liability insurance to cover the members of the Committee in their activities as
the Committee.
(f) Allocations. The Committee is given specific authority to allocate and
revoke responsibilities among its members. When the Committee has allocated
authority pursuant to this paragraph, the Committee is not to be liable for the
acts or omissions of the party to whom such responsibility has been allocated.
(g) Records. The Benefits Department shall supervise the establishment and
maintenance of records by the Recordkeeper, the Company and each adopting
affiliate containing all relevant data pertaining to any person affected hereby
and his or her rights under this Plan. In addition, the Committee may, in its
discretion, establish a system for complete or partial electronic administration
of the Plan and may replace any written documents described in this Plan with
electronic counterparts as it deems appropriate.
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(h) Interpretations. The Committee, in its sole discretion, shall interpret
and construe the provisions of the Plan (and any underlying documents or
policies).
The foregoing list of powers and duties is not intended to be exhaustive, and
the Committee shall, in addition, exercise such other powers and perform such
other duties as it may deem advisable in the administration of the Plan, unless
such powers or duties are assigned to another pursuant to the provisions of the
Plan.
6.5. Claims. The Benefits Department will be responsible for the initial review
of all claims. In the event that a Participant or beneficiary (the "claimant")
is denied a claim for benefits under this Plan, the Benefits Department shall
provide to the claimant written notice of the denial that shall set forth:
(a) The specific reason or reasons for the denial;
(b) Specific references to pertinent Plan provisions on which the Benefits
Department based its denial;
(c) A description of any additional material or information needed for the
claimant to perfect the claim and an explanation of why the material or
information is needed;
(d) A statement that the claimant may:
(i) Request a review by the Committee upon written application to the
Benefits Department;
(ii) Review pertinent Plan documents; and
(iii) Submit issues and comments in writing.
(e) An explanation of the Plan's appeal procedures, and an explanation of
the time limits applicable to the Plan's appeal procedures, including a
statement of the claimant's right to bring a civil action under Section 502(a)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
The explanation should also specify that any appeal the claimant wishes to make
of the adverse determination must be in writing and must be delivered to the
Committee within 60 days after receipt of the Benefits Department notice of
denial of benefits. The Benefits Department notice must further advise the
claimant that his failure to appeal the action to the Committee in writing
within the 60-day period will render the Benefits Department determination
final, binding, and conclusive.
6.6. Appeals.
(a) Within 60 days after receiving the written notice of the disposition of
the claim described in Section 6.5, the claimant, or the claimant's authorized
representative, may appeal such denied claim. The claimant may submit a written
statement of his claim (including any written comments, documents, records and
other information relating to the claim) and the reasons for granting the claim.
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The Committee shall have the right to request of and receive from the claimant
such additional information, documents or other evidence as the Committee may
reasonably require. If the claimant does not request an appeal of the denied
claim within 60 days after receiving written notice of the disposition of the
claim as described in Section 6.5, the claimant shall be deemed to have accepted
the disposition of the claim and such written disposition will be final and
binding on the claimant and anyone claiming benefits through the claimant,
unless the claimant shall have been physically or mentally incapacitated so as
to be unable to request review within the 60 day period. The appeal shall take
into account all comments, documents, records and other information submitted by
the claimant relating to the claim, without regard to whether such documents,
records or other information were submitted or considered in the initial benefit
determination or the initial review.
(b) A decision on appeal to the Committee shall be rendered in writing by
the Committee ordinarily not later than 60 days after the claimant requests
review. A written copy of the decision shall be delivered to the claimant. If
special circumstances require an extension of the ordinary period, the Committee
shall so notify the claimant of the extension with such notice containing an
explanation of the special circumstances requiring the extension and the date by
which the Committee expects to render a decision. Any such extension shall not
extend beyond 60 days after the ordinary period. The period of time within which
a benefit determination on review is required to be made shall begin at the time
an appeal is filed in accordance with the provisions of paragraph (a) above,
without regard to whether all the information necessary to make a decision on
appeal accompanies the filing. In the event that a period of time is extended
pursuant to this paragraph (b) due to a claimant's failure to submit information
necessary to decide a claim, the period for deciding the appeal shall be tolled
from the date on which the notification of the extension is sent to the claimant
until the date on which the claimant responds to the request for additional
information.
If the appeal to the Committee is denied, in whole or in part, the decision
on appeal referred to in the first sentence of this paragraph (b) shall set
forth:
(i) the specific reason(s) for denial of the claim;
(ii) reference to the specific Plan provisions upon which the denial is
based;
(iii) a statement that the claimant is entitled to receive, upon request
and free of charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the claimant's claim for
benefits; and
(iv) a statement of the claimant's right to bring a civil action under
Section 502(a) of ERISA.
6.7. Right to Examine Plan Documents and to Submit Materials. In connection with
the determination of a claim, or in connection with review of a denied claim or
appeal pursuant to the Plan, the claimant may examine this Plan and any other
pertinent documents generally available to Participants relating to the claim
and may submit written comments, documents, records and other information
relating to the claim for benefits. The claimant also will be provided, upon
request and free of charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the claimant's claim for benefits
with such relevance to be determined in accordance with Section 6.8.
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6.8. Relevance. Documents, records, or other information shall be considered
"relevant" to a claimant's claim for benefits if such documents, records or
other information:
(a) were relied upon in making the benefit determination;
(b) were submitted, considered, or generated in the course of making the
benefit determination, without regard to whether such documents, records or
other information were relied upon in making the benefit determination; or
(c) demonstrate compliance with the administrative processes and safeguards
required pursuant to this Plan's claims procedures regarding the making of the
benefit determination.
6.9. Decisions Final; Procedures Mandatory. To the extent permitted by law, a
decision on review or appeal shall be binding and conclusive upon all persons
whomsoever. To the extent permitted by law, completion of the claims procedures
described in this Plan shall be a mandatory precondition that must be complied
with prior to commencement of a legal or equitable action in connection with the
Plan by a person claiming rights under the Plan or by another person claiming
rights through such a person. The Committee may, in its sole discretion, waive
these procedures as a mandatory precondition to such an action.
6.10. Time For Filing Legal Or Equitable Action. Any legal or equitable action
filed in connection with the Plan by a person claiming rights under the Plan or
by another person claiming rights through such a person must be commenced not
later than the earlier of: (1) the shortest applicable statute of limitations
provided by law; or (2) two years from the date the written copy of the
Committee's decision on review is delivered to the claimant in accordance with
Section 6.6.
ARTICLE VII
AMENDMENT OR TERMINATION
7.1. Amendment or Termination. The Company intends the Plan to be permanent but
reserves the right to amend or terminate the Plan when, in the sole discretion
of the Company, such amendment or termination is advisable. Any such amendment
or termination shall be made pursuant to a resolution of the Board (or its
delegate) and shall be effective as of the date of such resolution.
7.2. Effect of Amendment or Termination. Any amendment or termination of this
Plan shall apply prospectively only and shall not directly or indirectly reduce
the balance of any Plan account as of the effective date of such amendment or
termination. Upon termination of the Plan, distribution of amounts in
Supplemental Deferral and Supplemental Employer Accounts shall be made to the
Participant or his or her beneficiary in the manner and at the time described in
Article V of the Plan. No additional credits of Supplemental Deferrals or
Supplemental Matching and Employer Credits shall be made to the Supplemental
Deferral and Supplemental Employer Accounts of a Participant after termination
of the Plan, but the Company may continue to credit or charge gains and losses
to the Supplemental Deferral and Supplemental Employer Accounts, until the
balance of such Supplemental Deferral and Supplemental Employer Accounts has
been fully distributed to the Participant or his or her beneficiary.
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ARTICLE VIII
GENERAL PROVISIONS
8.1. Participant's Rights Unsecured. The Plan at all times shall be entirely
unfunded and no provision shall at any time be made with respect to segregating
any assets of the Company for payment of any distributions hereunder. The right
of a Participant or his or her designated beneficiary to receive a distribution
hereunder shall be an unsecured claim against the general assets of the Company,
and neither the Participant nor a designated beneficiary shall have any rights
in or against any specific assets of the Company. All amounts credited to a
Participant's Supplemental Deferral and Supplemental Employer Accounts shall
constitute general assets of the Company and may be disposed of by the Company
at such time and for such purposes as it may deem appropriate. Nothing in this
Section shall preclude the Company from establishing a "Rabbi Trust", but the
assets in the Rabbi Trust must be available to pay the claims of the Company's
general creditors in the event of the Company's insolvency.
8.2. Funding Upon A Change In Control. No later than immediately prior to the
day on which a "Change in Control" (as defined in the Company's Executive
Retention Plan, as it may be amended or replaced from time to time) occurs, the
Company shall transfer to the trustee of a "Rabbi Trust" an amount equal to the
aggregate value of all Participants' accounts. If it is discovered at any time
that the amount initially transferred is less than the total amount called for
by the initial sentence of this section, the shortfall shall be transferred to
the trustee immediately upon the discovery of such error.
8.3. No Guaranty of Benefits. Nothing contained in the Plan shall constitute a
guaranty by the Company or any other person or entity that the assets of the
Company will be sufficient to pay any benefit hereunder.
8.4. No Enlargement of Employee Rights. No Participant shall have any right to
receive a distribution from the Plan except in accordance with the terms of the
Plan. Establishment of the Plan shall not be construed to give any Participant
the right to be retained in the service of the Company.
8.5. Spendthrift Provision. No interest of any person or entity in, or right to
receive a distribution under, the Plan shall be subject in any manner to sale,
transfer, assignment, pledge, attachment, garnishment, or other alienation or
encumbrance of any kind; nor shall any such interest or right to receive a
distribution be taken, either voluntarily or involuntarily, for the satisfaction
of the debts of, or other obligations or claims against, such person or entity,
including claims in bankruptcy proceedings. This Section shall not preclude
arrangements for the withholding of taxes from deferrals, credits, or benefit
payments, arrangements for the recovery of benefit overpayments, arrangements
for the transfer of benefit rights to another plan, or arrangements for direct
deposit of benefit payments to an account in a bank, savings and loan
association or credit union (provided that such arrangement is not part of an
arrangement constituting an assignment or alienation).
8.6. Applicable Law. The Plan shall be construed and administered under the laws
of the State of New Mexico, except to the extent preempted by the Employee
Retirement Income Security Act of 1974, as amended.
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8.7. Incapacity of Recipient. If the Benefits Department is served with a court
order holding that a person entitled to a distribution under the Plan is
incapable of personally receiving and giving a valid receipt for such
distribution, the Benefits Department shall postpone payment until such time as
a claim therefor shall have been made by a duly appointed guardian or other
legal representative of such person. The Benefits Department is under no
obligation to inquire or investigate as to the competency of any person entitled
to a distribution. Any payment to an appointed guardian or other legal
representative under this Section shall be a payment for the account of the
incapacitated person and a complete discharge of any liability of the Company
and the Plan therefor.
8.8. Successors. This Plan shall be binding upon the successors and assigns of
the Company and upon the heirs, beneficiaries and personal representatives of
the individuals who become Participants hereunder.
8.9. Unclaimed Benefit. Each Participant shall keep the Benefits Department
informed of his or her current address and the current address of his or her
designated beneficiary. The Benefits Department shall not be obligated to search
for the whereabouts of any person. If the location of a Participant is not made
known to the Benefits Department within three years after the date on which
payment of the Participant's Supplemental Deferral and Supplemental Employer
Accounts may first be made, payment may be made as though the Participant had
died at the end of the three year period. If, within one additional year after
such three year period has elapsed, or, within three years after the actual
death of a Participant, the designated beneficiary of the Participant has not
been located, then there shall be no further obligation to pay any benefit
hereunder to such Participant or designated beneficiary and such benefit shall
be irrevocably forfeited.
8.10. Limitations on Liability. Notwithstanding any of the preceding provisions
of the Plan, neither the Plan Administrator, the Benefits Department or the
Committee, nor any individual acting as the Plan Administrator's, the Benefits
Department's, the Committee's, or the Company's employee, agent, or
representative shall be liable to any Participant, former Participant or other
person for any claim, loss, liability or expense incurred in connection with the
Plan.
8.11. Headings for Convenience Only. The headings and subheadings of this Plan
are inserted for convenience and reference only and are not to be used in
construing this instrument or any provision herein.
8.12. Severability. If any provision of this Plan is held to be illegal or
invalid, such illegality or invalidity shall not affect the remaining provisions
of this Plan, and the remaining provisions shall be construed and enforced as if
such illegal or invalid provision had never been inserted herein.
8.13. Conflicts. If any person holds a position under this Plan through which he
or she is charged with making a decision about his or her own (or any immediate
family member's) Plan participation, including, without limitation, eligibility,
account valuation, or investments, then such person shall be recused and the
decision shall be made by the Committee.
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IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized officer on the date and year first above written.
PNM RESOURCES, INC.
By: /s/ Jeffry E. Sterba
----------------------------------------
Jeffry E. Sterba
Chairman, President and CEO
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