Exhibit 10.48.3
THIRD AMENDMENT TO THE
PNM RESOURCES, INC. OBRA '93 RETIREMENT PLAN
Effective as of November 15, 1993, Public Service Company of New Mexico
("PNM") established the Public Service Company of New Mexico OBRA '93 Retirement
Plan (the "Plan"). The Plan has been amended on two occasions. The Second
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. OBRA '93 Retirement 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 the 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. Article IV (Source of Payments) of the Plan is hereby amended by
deleting the last paragraph (as added by the First Amendment to the Plan) and
replacing it with the following new paragraph:
Notwithstanding the above, 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.
4. Article VI (Claims Procedure) of the Plan is hereby amended in its
entirety to read as follows:
ARTICLE VI
Claims Procedures
6.01 Review. If a Participant, Participant's 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
organizational unit of the Company responsible for administering
benefit programs (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 Benefits Department 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").
6.02 Appeal of Adverse Benefit Determination.
A. Within sixty (60) days after receiving the written
notice of the disposition of the claim described in Section 6.01, 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
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Committee shall have the right to request of and receive from the
Claimant such additional information, documents or other evidence as
the 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 6.01, 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 6.02A. 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 paragraph B. shall set forth:
(1) the specific reason(s) for denial of the
claim;
(2) reference to the specific Plan
provisions upon which the denial is based;
(3) 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
(4) a statement of the Claimant's right to
bring a civil action under Section 502(a) of the Act.
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6.03 Special Rules For Disability Claims. Claims
involving a determination of disability shall be administered in
accordance with this Article VI except as otherwise provided in this
Section 6.03.
A. Special Timing Rules. With respect to Section 6.01
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 Section 6.02A. above, the number
sixty (60) shall be replaced with the number one hundred eighty (180).
For purposes of Section 6.02B. above, the number sixty (60) shall be
replaced with the number forty-five (45).
B. Special Information Rules. With respect to
Sections 6.01 and 6.02, notice of the denial of a claim for disability
benefits shall set forth the following additional information:
(1) 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;
(2) 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;
(3) 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;
(4) 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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(5) 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.
6.04 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 Article VI, 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 6.05.
6.05 Relevance. For purpose of this Article VI, 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 Article VI regarding
the making of the benefit determination.
6.06 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 Article VI shall
be a mandatory precondition that must be complied with prior to
commencement of a legal or equitable action in connection with the Plan
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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.
6.07 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: A. the
shortest applicable statute of limitations provided by law; or B. 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 6.02B, as modifed by Section 6.03A, as
applicable.
5. Section 7.03, (Administrator), of the Plan is hereby amended
in its entirety to read as follows:
Section 7.03 Administrator. The PNM Resources, Inc. Benefits
Governance Committee (the "Benefits Governance Committee") shall
administer the Plan. The Benefits Governance Committee shall be the
"named fiduciary" for purposes of the ERISA and shall have the
discretion and authority to control, interpret and construe the Plan
and manage the operations thereof. Any such interpretation and
construction of any provisions of this Plan by the Benefits Governance
Committee shall be final. The Benefits Governance Committee shall, in
addition to the foregoing, exercise such other powers and perform such
other duties as it may deem advisable in the administration of the
Plan. The Benefits Governance Committee may delegate some (or all) of
its authority hereunder to the PNM Resources, Inc. Benefits Department
(the "Benefits Department"). The Committee also may engage agents and
obtain other assistance from the Company, including Company counsel.
The Benefits Governance Committee shall not be responsible for any
action taken or not taken on the advice of legal counsel. The Benefits
Governance Committee is given specific authority to allocate and revoke
responsibilities among its members or designees. When the Benefits
Governance Committee has allocated authority pursuant to the foregoing,
the Benefits Governance Committee 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.
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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