Exhibit 10.50.2
Fourth AMENDMENT
TO THE
PNM Resources, Inc. Section 415 Plan
Effective as of January 1, 1994, Public Service Company of New Mexico
("PNM") established the Public Service Company of New Mexico Section 415 Plan
(the "Plan") to provide supplemental retirement benefits for certain employees.
The Plan has been amended on three occasions. The Third 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. Section
415 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 5.02 (Change in Control) of the Plan is hereby
amended in its entirety to read as follows:
5.02 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.
4. Section 6.01 (Administrators) of the Plan is hereby amended in
its entirety to read as follows:
6.01 Administrators. This Section 415 Plan shall be
administered by the PNM Resources, Inc. Benefits Governance Committee
or such other individual or committee appointed by the Company to
administer the Plan. The Benefits Governance Committee shall have the
discretion and authority to interpret provisions of the Section 415
Plan, and to determine any and all issues pertaining thereto, including
but not limited to, eligibility for participation or benefits, the
amount, form and timing of benefits, and beneficiary designations. The
Benefits Governance Committee may delegate some (or all) of its
authority hereunder to the organizational unit of the Company
responsible for administering benefit programs (the "Benefits
Department"). The Benefits Governance 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.
5. Section 6.02 (Claims Procedure) of the Plan is hereby
amended in its entirety to read as follows:
6.02 Claims Procedure.
(a) 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 Section 415 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
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:
(1) the specific reason(s) for denial of the
claim;
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(2) reference to the specific Section 415 Plan
provisions upon which the determination is based;
(3) 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;
(4) an explanation of the Section 415 Plan's
appeal procedures, and an explanation of the time limits applicable to
the Section 415 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").
(b) Appeal of Adverse Benefit Determination.
(1) Within sixty (60) days after receiving the
written notice of the disposition of the claim described in paragraph
(a), 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 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 paragraph (a), 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.
(2) 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 paragraph (b)(1) above, without regard to whether all the
information necessary to make a decision on appeal accompanies the
filing.
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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 (2) shall set
forth:
(A) the specific reason(s) for denial of the
claim;
(B) reference to the specific Section 415 Plan
provisions upon which the denial is based;
(C) 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
(D) a statement of the Claimant's right to bring
a civil action under Section 502(a) of the Act.
(c) Special Rules For Disability Claims. Claims
involving a determination of disability shall be administered in
accordance with this Section 6.02 except as otherwise provided in this
paragraph (c).
(1) Special Timing Rules. With respect to
paragraph (a) 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 Section 415 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 (b)(1) above, the
number sixty (60) shall be replaced with the number one hundred eighty
(180). For purposes of paragraph (b)(2) above, the number sixty (60)
shall be replaced with the number forty-five (45).
(2) Special Information Rules. With respect to
paragraphs (a) and (b) above, notice of the denial of a claim for
disability benefits shall set forth the following additional
information:
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(A) 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;
(B) 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;
(C) 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;
(D) 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
(E) A statement describing any voluntary appeal
procedures offered by the Plan and the Claimant's right to receive
information about such voluntary procedures.
(3) 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.
(4) 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.
(d) 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 6.02, the
Claimant may examine this Section 415 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 6.02(e).
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(e) Relevance. For purpose of this Section 6.02, documents,
records, or other information shall be considered "relevant" to a
Claimant's claim for benefits if such documents, records or other
information:
(1) were relied upon in making the benefit
determination;
(2) 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
(3) demonstrate compliance with the administrative
processes and safeguards required pursuant to this Section 6.02
regarding the making of the benefit determination.
(f) 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 6.02
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 Section 415 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.
(g) 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 Section 415 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 Benefits Governance
Committee's decision on review is delivered to the claimant in
accordance with Section 6.02(b)(2), as modified by Section 6.2(c)(1),
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