Exhibit 10.45.5
Fifth AMENDMENT
TO THE
PNM Resources, Inc.
Service Bonus Plan
Effective as of October 23, 1984, Public Service Company of New Mexico
("PNM") established the Public Service Company of New Mexico Service Bonus Plan
(the "Plan"). The Plan has been amended on four occasions. The Fourth Amendment
to the Plan transferred sponsorship of the Plan from PNM to PNM Resources, Inc.
(the "Company") and changed the name of the Plan to the "PNM Resources, Inc.
Service Bonus Plan." The purpose of this Amendment is to make certain provisions
of the Plan more consistent with the other benefit plans and programs sponsored
by the Company.
1. This Amendment shall be effective as of date set forth below,
unless otherwise specified herein.
2. This Amendment amends only the provisions of the Plan as set
forth herein. Those provisions not expressly amended by this Amendment shall
continue in full force and effect.
3. Section 3.21 (Plan Administrator) of the Plan is hereby
amended in its entirety to read as follows:
3.21 "Plan Administrator" means the PNM Resources, Inc.
Benefits Governance Committee or other such person or committee
designated by the Company as the Plan Administrator.
4. Section 6.02 (Company Liability) of the Plan is hereby amended
and restated in its entirety to read as follows:
6.02 Company Liability. The Company shall create and credit to
a special account on its books such amounts as may be necessary to
effectuate and maintain the Plan on a sound actuarial basis. At its own
discretion, the Company may purchase such insurance or annuity contract
or other types of investments, as the PNM Resources, Inc. Corporate
Investment Committee deems desirable in order to accumulate the
necessary funds to provide for the future benefit payments under the
Plan. Notwithstanding anything to the contrary herein, the Company
shall be under no obligation to fund in advance the benefits provided
under this Plan nor shall the investment of Company funds credited to a
special account established hereunder be restricted in any way and such
funds shall be available for any purpose the Company may choose.
5. Section 6.04 (Change in Control) of the Plan is hereby
amended in its entirety to read as follows:
6.04 Change in Control. As a condition to the closing of a
"Change in Control" transaction (as defined in the PNM Resources, Inc.
Officer Retention Plan, as it may be amended from time to time), the
Company shall fully fund the Public Service Company of New Mexico and
Paragon Resources, Inc. Deferred Compensation Trust Agreement and the
Trust Agreement between PNM Resources, Inc. Deferred Compensation Trust
Agreement and the Trust Agreement between PNM Resources, Inc. and
Fiduciary Trust International of Delaware (commonly known as the "Rabbi
Trusts"), which provide a funding mechanism for certain plans sponsored
by the Company or its affiliates.
6. Section 8.01 of the Plan is hereby amended in its entirety to
read as follows:
8.01 Administration of Plan. The Board of Directors hereby
vests the Plan Administrator with all powers and authority necessary to
administer the Plan as herein provided, and with the authority to make
such rules and regulations of uniform application as the Plan
Administrator may deem necessary to carry out the provisions of the
Plan. The Plan Administrator shall have the exclusive right to
interpret the provisions of the Plan and to determine any questions
arising thereunder or in connection with the administration thereof.
Any decision or action of the Plan Administrator shall be conclusive
and binding upon all Participating Employees and Beneficiaries. The
Plan Administrator may delegate some (or all) of its authority
hereunder to the organizational unit of the Company responsible for
administering benefits programs (the "Benefits Department"). The Plan
Administrator also may engage agents and obtain other assistance from
the Company, including Company counsel. The Plan Administrator shall
not be responsible for any action taken or not taken on the advice of
legal counsel. The Plan Administrator is given specific authority to
allocate and revoke responsibilities among its members or designees.
When the Plan Administrator has allocated authority pursuant to the
foregoing, the Plan Administrator shall not be liable for the acts or
omissions of the party to whom such responsibility has been allocated,
except to the extent provided by law.
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7. Article VIII (Plan Administration) of the Plan is hereby
amended by adding the following Section 8.03 to the end thereof:
8.03 Claims Procedure.
8.03.1 Review. If a Participant, beneficiary or any other
person (all of whom are referred to in this Section as a "Claimant") is
dissatisfied with the determination of his benefits, eligibility,
participation, service or any other right or interest under this Plan,
the Claimant may file a written request with the Benefits Department in
a manner prescribed by the Benefits Department. The Benefits Department
will notify the Claimant of the disposition of the claim within ninety
(90) days after the request is filed with Benefits Department. The
Benefits Department may have an additional period of up to ninety (90)
days to decide the claim if the Plan Administrator determines that
special circumstances require an extension of time to decide the claim
and the Benefits Department advises the Claimant in writing of the need
for an extension (including an explanation of the special circumstances
requiring the extension) and the date on which the Benefits Department
expects to decide the claim. If, following the review, the claim is
denied, in whole or in part, the notice of disposition shall set forth:
(a) the specific reason(s) for denial of the claim;
(b) reference to the specific Plan provisions upon
which the determination is based;
(c) a description of any additional material or
information necessary for the Claimant to perfect the claim and an
explanation of why such material or information is necessary;
(d) 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 it may be amended from time to time (the
"Act").
8.03.2 Appeal Of Adverse Benefit Determination.
(a) Within sixty (60) days after receiving the
written notice of the disposition of the claim described in Section
8.03.1, 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 to the Benefits Governance Committee. The Benefits Governance
Committee shall have the right to request of and receive from the
Claimant such additional information, documents or other evidence as the
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Benefits Governance Committee may reasonably require. If the Claimant
does not request an appeal of the denied claim within sixty (60) days
after receiving written notice of the disposition of the claim as
described in Section 8.03.1, 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
sixty (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 Benefits Governance
Committee shall be rendered in writing by the Benefits Governance
Committee ordinarily not later than sixty (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 Benefits Governance 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 Benefits Governance Committee expects to render a decision. Any such
extension shall not extend beyond sixty (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 Section 8.03.2(a) above, without
regard to whether all the information necessary to make a decision on
appeal accompanies the filing.
If the appeal to the Benefits Governance Committee is
denied, in whole or in part, the decision on appeal referred to in the
first sentence of this Section 8.03.2(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 the Act.
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8.03.3 Special Rules For Disability Claims. Claims involving a
determination of disability shall be administered in accordance with
this Section 8.03 except as otherwise provided in this Section 8.03.3.
(a) Special Timing Rules. With respect to Section
8.03.1 above, the Benefits Department will notify the Claimant of the
disposition of the claim within forty-five (45) days after the request
is filed with the Benefits Department. This forty-five (45) day period
may be extended by the Benefits Department for up to thirty (30) days,
provided that the Benefits Department both determines that such an
extension is necessary due to matters beyond the control of the Benefits
Department and notifies the Claimant, prior to the expiration of the
initial forty-five (45) day period, of the circumstances requiring the
extension and the day by which it expects to render a decision. If,
prior to the end of this thirty (30) day extension period, the Benefits
Department determines that, due to matters beyond the control of the
Plan, a decision cannot be rendered within such extension period, the
period for making the determination may be extended for up to an
additional thirty (30) days, provided that the Benefits Department
notifies the Claimant prior to the expiration of the first thirty (30)
day extension period of the circumstances requiring the extension and
the date as of which it expects to render a decision. In addition, for
purposes of paragraph 8.03.2(a) above, the number sixty (60) shall be
replaced with the number one hundred eighty (180). For purposes of
paragraph 8.03.2(b) above, the number sixty (60) shall be replaced with
the number forty-five (45).
(b) Special Information Rules. With respect to
Sections 8.03.1 and 8.03.2, notice of the denial of a claim for
disability benefits shall set forth the following additional
information:
(i) A statement whether any internal rule, guideline,
protocol or other similar criterion was relied upon in denying the
claim, and if so, that such internal rule, guideline, protocol or other
similar criterion will be provided free of charge upon request;
(ii) A statement that the Claimant is entitled to
receive, upon request and free of charge, the names of any experts whose
advice was sought with respect to the claim without regard to whether
the advice was relied upon in deciding the appeal;
(iii) A statement that the Claimant is entitled to
receive, upon request and free of charge, an explanation of any medical
and/or vocational findings, if the denial was based, in whole or in
part, on such findings;
(iv) The following statement: "You and your plan may
have other voluntary alternative dispute resolution options such as
mediation. One way to find out what may be available is to contact your
local U.S. Department of Labor Office and your State insurance
regulatory agency"; and
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(v) A statement describing any voluntary appeal
procedures offered by the Plan and the Claimant's right to receive
information about such voluntary procedures.
(c) Special Appeal Consultation Rules. If an appeal
is based in whole or in part on a medical judgment, a health care
professional who has appropriate training and experience in the field
of medicine involved in the medical judgment, other than the health
care professional who was consulted in connection with the initial
benefit determination or a subordinate of such health care
professional, must be consulted.
(d) No Deference To Original Decision. A decision on
an appeal shall not afford deference to the initial adverse benefit
determination and must be conducted by an appropriate named fiduciary
of the Plan who is neither the individual who made the adverse benefit
determination that is the subject of the appeal, nor the subordinate of
such individual.
8.03.4 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 this
Section 8.03, 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 8.03.5.
8.03.5 Relevance. For purpose of this Section 8.03, 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 Section 8.03
regarding the making of the benefit determination.
(d) 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
Section 8.03 shall be a mandatory precondition that must be complied
with prior to commencement of a legal or equitable action in connection
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with the Plan by a person claiming rights under the Plan or by another
person claiming rights through such a person. The Benefits Governance
Committee may, in its sole discretion, waive these procedures as a
mandatory precondition to such an action.
(e) 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:
(i) the shortest applicable statute of limitations provided by law; or
(ii) two years from the date the written copy of the Benefits
Governance Committee's decision on review is delivered to the claimant
in accordance with Section 8.03.2(b), as modified by Section 8.03.3(a),
as applicable.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed as of this _9th_ day of December, 2003.
PNM RESOURCES, INC.
By: /s/ Alice A. Cobb
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Its: Senior Vice President,
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People Services & Development
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