SUPPLEMENT EMPLOYEE RETIREMENT AGREEMENT
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The Supplemental Employee Retirement Agreement is made and entered into
this 4th day of August 1989, by and between Public Service Company of New Mexico
("Employer"), and XXXX X. XXXXXXXX, ("Employee").
WHEREAS, Employer is the Plan Sponsor of the Public Service Company of
New Mexico Restated and Amended Accelerated Management Performance Plan (1988)
("AMP") and the Public Service Company of New Mexico Employees' Retirement Plan
("Retirement Plan");
WHEREAS, it is the intent of this Agreement to provide for the payment
of supplemental employee retirement benefits to Employee not otherwise available
to Employee under the AMP and the Retirement Plan;
NOW, THEREFORE, it is agreed as follows:
1. Termination of Employment before November 1, 1990. If Employee's
employment with Employer terminates before November 1, 1990, Employer agrees to
pay Employee supplemental employee retirement benefits as if Employee had, on
the date of termination of employment, attained his Early Retirement Date under
the Retirement Plan.
2. Termination of Employment after October 31, 1990. If Employee's
employment with Employer terminates after October 31, 1990, Employer hereby
agrees to pay Employee supplemental employee retirement benefits as if Employee
had, on the date of Employee's termination of employment, accumulated Maximum
Performance Credits pursuant to the AMP.
3. Benefit Calculation. Benefits payable to Employee under either
paragraph 1 or 2 above shall be the benefits as calculated under the AMP in
effect on the date of this Agreement, as modified by either paragraph 1 or 2
above, as may be applicable. Such benefits shall be payable to Employee, at his
election, at any time following such termination of employment with Employer,
pursuant to any annuity form available under the Retirement Plan with
appropriate actuarial adjustments for forms other than a single life annuity on
Employee's life.
4. No Duplication of Benefits. The purpose of this Agreement is to
accelerate the benefits that may be due under the AMP and the Retirement Plan.
All payments due hereunder shall be reduced by all benefits deemed payable to
Employee under the AMP and the Retirement Plan. The benefits deemed payable
under the Retirement Plan and the AMP shall be calculated.
(a) assuming a deemed commencement date for the payment of
such benefits being the later of: (i) the date Employee commences
receiving benefits under the Agreement, or (ii) the earliest date
Employee could have begun receiving benefits under the Retirement Plan
and the AMP;
(b) using the same form of benefit (i.e. single life annuity,
joint survivor annuity, etc.) as is selected for payment of benefits
under this Agreement; and
(c) based upon the Retirement Plan and AMP in effect on the
date such benefits are deemed to have commenced pursuant to Section
4(a) above.
5. Designation of Beneficiary. The designation of beneficiary form
filed by Employer under the Retirement Plan shall also be deemed to be a
designation of the person(s) or fiduciary to receive any amount payable upon
Employee's death. Until the Employee and his spouse shall file a written,
notarized designation to the contrary, the spouse of the Employee shall be
deemed to have been designated as beneficiary or, in the event that Employee has
no spouse, the Employee's estate shall be deemed to have designed his estate as
beneficiary.
6. No Assignment. This Agreement shall inure only to the benefit of
Employee, Employee's designated beneficiary, and Employee's estate or heirs and
may not be assigned, transferred, pledged or hypothecated in any way by Employee
or Employee's personal representative, heir, distributee, or other person
claiming under Employee and shall not be subject to execution, attachment or
similar process.
7. No Trust. Nothing contained in this Agreement and no action taken
pursuant to the provisions of this Agreement shall create or be construed to
create a trust of any kind, or a fiduciary relationship between Employer and
Employee, or any designated beneficiary of Employee. Employer's obligation under
this Agreement is and shall be and remain at all times unfunded and unsecured by
any property, and shall at all times be a mere contractual obligation.
8. Administrator. This Agreement shall be administered by the Board of
Directors of Employer or any individual or committee appointed by it with
written notice to Employee.
9. Amendment. This Agreement may be amended only by written consent of
both parties.
10. Controlling Law. This Agreement shall be interpreted under the laws
of the State of New Mexico.
11. Binding Effect. This Agreement shall be binding upon any successor
Employer and any such successor shall be deemed substituted for Employer under
the terms of this Agreement. As used in this Agreement, the term "successor"
shall include any person, firm, corporation or other business entity which at
anytime, whether by merger, purchase or otherwise, acquires all or substantially
all of the assets or business of Employer.
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IN WITNESS WHEREOF, the parties hereto, personally or by their
authorized representatives, have executed this Supplemental Employee Retirement
Agreement as of the date first above written.
EMPLOYER:
Public Service Company of
New Mexico
By /s/ X. X. Xxxxx
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XXXXX X. XXXXX, Chairman and
President
EMPLOYEE:
/s/ X. X. Xxxxxxxx
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XXXX X. XXXXXXXX
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SUPPLEMENTAL EMPLOYEE RETIREMENT AGREEMENT
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This Supplemental Employee Retirement Agreement is made and entered
into as of this 4th day of August, 1989, by and between Public Service Company
of New Mexico, a New Mexico Corporation ("PNM"), and Xxx Xxxxxx ("Maerki").
WITNESSETH
WHEREAS, Maerki is currently the Senior Vice President and Chief
Financial Officer of PNM;
WHEREAS, Maerki has knowledge, experience, reputation and contacts the
benefits of which PNM would like to continue receiving, and is willing to
provide Maerki additional incentives for such services;
WHEREAS, PNM is the sponsoring employer of the Public Service Company
of New Mexico Employees' Retirement Plan (the "Retirement Plan"); and
WHEREAS, it is the intent of this Agreement to provide for the payment
of supplemental employee retirement benefits to Maerki not otherwise available
to him under the Retirement Plan.
NOW THEREFORE, in consideration of the mutual promises contained
herein, it is hereby agreed as follows:
1. Supplemental Employee Retirement Benefit. PNM shall pay to Maerki
supplemental employee retirement benefits equal to the benefit which would be
payable to Maerki under the Retirement Plan, calculated as though Maerki has
been in continuous employment of PNM since February 15, 1974, reduced by
benefits deemed payable to Maerki under the Retirement Plan.
2. Calculation of Supplemental Retirement Benefits. The benefits
payable under this Agreement:
(a) shall be determined based upon the Retirement Plan in effect on
January 1, 1989, including amendments that will be made to the Retirement Plan
during the 1989 calendar year retroactively to January 1, 1989;
(b) shall assume 100% vesting; and
(c) shall be calculated without regard to any limitations that would
otherwise be applicable pursuant to the Internal Revenue Code of 1986, as
amended, ("Code") Section 415 and the $200,000 compensation limitation pursuant
to Code Section 404 and 401(a)(17).
3. Form, Timing and Amount of Benefit.
(a) The benefits payable under paragraph 1 above shall be
payable pursuant to any annuity form available under the Retirement
Plan with appropriate actuarial adjustments for forms other than a
single life annuity on Maerki's life. The form shall be selected prior
to Maerki's termination of employment.
(b) The benefits payable under paragraph 1 shall commence at
such time as Maerki shall elect following (x) Maerki's termination of
employment with PNM, or (y) if later, the earliest date Maerki could
commence receiving benefits under the Retirement Plan assuming his
employment with PNM commenced February 15,1974.
4. Calculation of Plan Benefits. The benefits deemed payable under the
Retirement Plan shall be calculated:
(a) assuming a deemed commencement date for the payment of
such benefits being the later of: (i) the date Maerki commences
receiving benefits under this Agreement, and (ii) the earliest date
Maerki could have begun receiving benefits under the Retirement Plan;
(b) using the same form of benefit (i.e., single life annuity,
joint survivor annuity, etc.) as is selected for payment of benefits
under this Agreement; and
(c) based upon the Retirement Plan in effect on the date such
benefits are deemed to have commenced pursuant to Section 4(a) above.
5. Designation of Beneficiary. The designation of beneficiary form
filed by Maerki under the Retirement Plan shall also be deemed to be a
designation of the person or persons or fiduciary to receive any amount payable
under this Agreement upon Maerki's death. Until a written designation to the
contrary is filed, any spouse of Maerki shall be deemed to have been designated
as the beneficiary hereunder, or in the event that Maerki has no spouse, Maerki
shall be deemed to have designated his estate as beneficiary. For purposes
hereof, "spouse" shall mean "Eligible Spouse" as defined in the Retirement Plan.
6. No Assignment. This agreement shall inure only to the benefit of
Maerki, Maerki's designated beneficiary, Maerki's estate, or heirs and may not
be assigned, transferred, pledged, or hypothecated in any way by Maerki,
Maerki's executor, administrator, heir, distributee, or other person claiming
under Maerki, and shall not be subject to execution, attachment or similar
process.
7. No Trust. Nothing contained in this Agreement and no action taken
shall create or be construed to create a trust of any kind, or a fiduciary
relationship between Maerki and PNM, or any designated beneficiary of Maerki.
PNM's obligation under this Agreement is unfunded and unsecured by any property,
and is a mere contractual obligation of PNM.
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8. Administrator. This Agreement shall be administered by the Board of
Directors of PNM or any individual or committee appointed by it with written
notice to Maerki.
9. Amendment. This Agreement may be amended only by written consent of
both parties. This Agreement constitutes the entire agreement between the
parties as to supplemental retirement benefits and supersedes any and all prior
agreements.
10. Controlling Law. This Agreement shall be interpreted under the laws
of the State of New Mexico.
11. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of any successor of PNM and any such successor shall be deemed
substituted for PNM under the terms of this Agreement. As used in this
Agreement, the term "successor" shall include any person, firm, corporation, or
other business entity which at any time, whether by merger, purchase, or
otherwise, acquires all or substantially all of the assets or business of PNM.
IN WITNESS WHEREOF, the parties hereto, personally or by their
authorized representatives, have subscribed to this supplemental employee
retirement agreement.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
Date: August 4, 1989 By: /s/ X. X. Xxxxx
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Xxxxx Xxxxx, President and
Chairman
Date: August 4, 1989 /s/ Xxx Xxxxxx
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Xxx Xxxxxx
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