AGREEMENT
EXHIBIT
10.6
THIS
AGREEMENT is entered into this _16th__ day of August, 2007,
between PNM Resources, Inc., a New Mexico corporation, on its behalf and on
behalf of its affiliates (“PNMR”) and Public Policy Strategy Group LLC, a New
Mexico limited liability company (“Contractor”).
WHEREAS,
PNMR desires to secure various consulting services on a temporary basis from
Contractor; and
WHEREAS,
Contractor is willing to provide such services to PNMR on the terms and
conditions described below.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Confidentiality. Contractor
agrees to keep confidential all “Confidential Information” as defined in this
Agreement, which he presently has or which he may obtain during the term of
this
Agreement. Contractor shall not reveal any Confidential Information
to any other person, corporation or entity, without the prior written consent
from an authorized PNMR representative unless ordered to do so by a court or
administrative agency. If Contractor is ordered to divulge PNMR’s
Confidential Information, Contractor shall promptly notify PNMR so that it
may
take steps to protect its Confidential Information. If PNMR declines
to take steps to protect the Confidential Information, or is unsuccessful in
doing so, Contractor shall divulge only so much of the Confidential Information
in its possession as is necessary to comply the order. Contractor
shall return or destroy Confidential Information in its possession at the
request of PNMR. The term “Confidential Information” means
information Contractor has received from PNMR or any of its employees, agents
or
representatives and includes all reports, forecasts, contracts, customer or
third party information, confidential commercial information, trade secrets,
business secrets, business, sales or marketing plans, long range plans, sales
or
earnings projections or any information that is not available to the general
public. Contractor understands and agrees that its obligations under
this paragraph will apply as long as the information is not publicly available
and will extend as long as the information is not publicly available even after
expiration of this Agreement.
2. Consulting
Services. Contractor agrees to provide consulting services
to PNMR as requested by senior management regarding strategy and tactics in
the
areas of regulatory, communications, legislative and other public policy related
matters. For purposes of this Agreement, “senior management” is
defined as PNMR’s Chief Executive Officer; Chief Financial Officer; Senior Vice
President, Public Policy and Strategy; and Vice President, Corporate Strategy
and Development. Consulting services provided under this Agreement
shall be performed by Xxxxxxx X. Real (“Real”) unless otherwise agreed to by
PNMR.
In
performing the consulting services under this Agreement, Contractor agrees
that
it will follow all PNMR policies and procedures and that it will not purport
to
bind PNMR in any manner unless expressly authorized to do so by senior
management.
3. Conflicts
of Interest. Contractor shall avoid conflicts of interest
with PNMR. Contractor shall refrain from taking positions contrary to
positions held by PNMR.
4. Compensation. In
consideration of the services to be provided to PNMR, PNMR shall pay to
Contractor the sum of $6,000.00 per month plus gross receipts
tax. Payment shall be made in advance on the 6th day of each month
commencing September 6, 2007. It is anticipated that consulting
services will be required for an average of forty hours per month, which is
less
than 20% of the average level of services performed by Real as an employee
of
PNMR Services Company during the immediately preceding 36 months prior to Real’s
termination of full-time employment. Every three months while this
Agreement is in effect, a determination will be made as to the total number
of
hours of consulting services performed during the three-month
period. If the total hours Contractor has provided consulting
services to PNMR exceeds 120 hours during the three-month period, PNMR shall
further compensate Contractor at the rate of $150.00 per hour for the time
spent
in excess of 120 hours. If the total number of hours of consulting
services performed during the three-month period is less than the sum of 120
hours plus any shortfall carried over from a prior three-month period, and
the
shortfall was due to the unavailability of Realm the shortfall shall be carried
over to the next three-month period so that the further compensation of $150.00
per hour shall not be payable unless the number of hours exceeds 120 hours
plus
the prior period shortfalls resulting from the unavailability of
Real. Contractor shall provide a monthly invoice for the monthly
amount to be paid. Each invoice after the first invoice, shall
identify the number of hours spent on consulting services for PNMR with a
general description of each matter for which services were
rendered.
5. Reimbursement
of Expenses. Reasonable and necessary expenses incurred by
Contactor in performing the consulting services under this Agreement shall
be
paid, in addition to the compensation paid pursuant to Section 3. All
requests for reimbursement of expenses incurred must include supporting
documentation as required by PNMR.
6. Term. This
Agreement shall become effective as of September 6, 2007, at 12:01 a.m. and
will terminate on September 5, 2008, at 11:59 p.m. unless earlier
terminated by either party upon ninety days written notice. This
Agreement shall continue in effect on a month to month basis after its
expiration unless either party provides thirty days written notice of
termination of the month to month extensions. Notwithstanding
termination of this Agreement, the obligations of Section 1 shall continue
as long as Confidential Information does not become public.
7. Independent
Contractor. Prior to the effective date set forth in
Section 6, Real shall terminate his full-time employment with PNMR Services
Company. From and after the effective date, the relationship between
Contractor and PNMR shall be that of an independent contractor and nothing
in
this Agreement will be construed or deemed to create any other
relationship. Without limiting the foregoing, the relationship
between the parties following the effective date will not be considered to
be
that of an employer-employee, joint venture, or partnership. As an
independent contractor, Contractor has the sole responsibility for paying
workers’ compensation insurance premiums, if applicable, employee benefits (if
any), and all similar obligations. Contractor shall perform the
services called for by this Agreement in the way that Contractor deems the
most
feasible or desirable in order to perform and complete the services in the
most
efficient manner possible. Contractor shall be entirely and solely
responsible for his acts while engaged in the performance of the services and
Contractor’s representatives shall not hold themselves out to be employees of
PNMR. During the term of this Agreement, Real is not entitled to
continue to accrue any employee benefits from PNMR since he is not an employee
of PNMR. Contractor shall be liable for and shall pay, and shall
indemnify, defend and hold harmless, PNMR from all taxes (including but not
limited to employment/self-employment and withholding taxes) assessed or payable
on all compensation or other monies paid to Contractor pursuant to this
Agreement.
2
8. Amendment. No
amendment, modification or waiver of the terms or conditions of this Agreement
shall be binding unless it is in writing and signed by the parties.
9. Choice
of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Mexico without respect to conflicts
of laws provisions.
10. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
regarded as an original and all of which shall constitute but one and the same
instrument.
Public
Policy Strategy Group LLC
By:__/s/
Xxxx Real _____________________
Its:________________________________
PNM
Resources, Inc.
By: /s/
Xxxx
Xxxxxx
Its: Chairman,
President &
CEO
3
