As filed with the Securities and Exchange Commission on January 4, 2002
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
PNM RESOURCES, INC.
(Exact name of Registrant as specified in its charter)
NEW MEXICO
(State or other jurisdiction 85-0468296
incorporation or organization) (I.R.S. Employer
Identification No.)
ALVARADO SQUARE
ALBUQUERQUE, NEW MEXICO 87158
(Address of Registrants' Principal Executive Offices) (Zip Code)
FIRST RESTATED AND AMENDED PUBLIC SERVICE COMPANY OF NEW MEXICO
EXECUTIVE SAVINGS PLAN
(Full title of the Plan)
Max Maerki
Senior Vice President and Chief Financial Officer
PNM Resources, Inc.
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2700
(Name, address and telephone number, including area code, of agent for service)
WITH COPIES TO:
C.L. Moore
Keleher & McLeod, P.A.
414 Silver Avenue, S.W.
Albuquerque, New Mexico 87103
CALCULATION OF REGISTRATION FEE
================================ =============== ========================= ======================== ====================
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED (1) PRICE PER UNIT (2) AGGREGATE OFFERING PRICE REGISTRATION FEE (3)
-------------------------------- --------------- ------------------------- ------------------------ --------------------
Deferred Compensation
Obligations 100% n/a $2,052,000 $490.43
-------------------------------- --------------- ------------------------- ---------------------- -------------------
Common Stock, no par value 25,000 shares $28.22 $705,500 $168.61
================================ =============== ========================= ====================== ===================
(1) Pursuant to Rule 416(c) of the Securities Act of 1933, there is
also being registered such number of additional shares of common stock that may
become available for purchase under the executive savings plan in the event of
certain changes in the outstanding shares, including reorganizations, mergers,
recapitalizations, restructurings, stock dividends, stock splits, reverse stock
splits and reclassifications.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(h) of the Securities Act of 1933. As to
shares of common stock issuable pursuant to the executive savings plan, the
offering price is calculated on the basis of the average of the high and low
sale price of the Registrant's common stock on the New York Stock Exchange
Composite Transaction Tape on January 2, 2001.
================================================================================
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed to reflect
(i) the adoption by the Public Service Company of New Mexico, a New Mexico
corporation ("PNM"), of a holding company form of organizational structure,
and (ii) the adoption by PNM of certain amendments to the First Restated and
Amended Executive Savings Plan (the "Plan").
The holding company reorganization was effected pursuant to the
Agreement and Plan of Share Exchange between PNM and PNM Resources, Inc., a
New Mexico corporation formerly known as Manzano Corporation ("PNM Resources"
or the "Company"). This agreement provides for, among other things, a share
exchange pursuant to which all shares of PNM common stock were exchanged on a
one-for-one basis for shares of common stock of PNM Resources (the "Share
Exchange"). The stockholders of PNM approved the Share Exchange on June 6,
2000. As a result of the Share Exchange, which was completed on December 31,
2001, PNM became a wholly-owned subsidiary of PNM Resources.
PNM previously filed a Registration Statement on Form S-8
(Registration No. 333-73648) on November 19, 2001 to register (i) shares of
PNM common stock issuable pursuant to the Plan and (ii) unsecured obligations
of PNM to pay deferred compensation in the future in accordance with the
Plan. Following the Share Exchange, Plan participants who receive shares of
stock in settlement of accounts that were invested in the hypothetical
Company Stock Fund will receive shares of PNM Resources common stock, rather
than shares of PNM common stock. In addition, following the Share Exchange,
the performance of PNM Resources common stock will be used to determine
earnings and losses on the portion of Plan accounts invested in the
hypothetical Company Stock Fund. PNM Resources also anticipates that, on or
about January 11, 2002, the Plan will be adopted by PNM Resources, with PNM
Resources being substituted for PNM as the sponsor of the Plan. Once the Plan
has been adopted by PNM Resources, the unsecured obligations to pay deferred
compensation in the future to Plan participants will be assumed by PNM
Resources.
The amendments to the Plan, which became effective on January 1,
2002, were adopted for the purpose of (i) increasing the group of individuals
eligible to participate in the Plan, and (ii) expanding distribution options
for Plan participants. Accordingly, the description of deferred compensation
obligations under Item 4, Part II of this Registration Statement has been
revised to reflect these amendments.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S-8 will be sent or given to participating employees as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended. These documents and
the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
PNM Resources, Inc. will file annual, quarterly and current reports,
proxy statements and other information with the Securities and Exchange
Commission. Prior to PNM Resources becoming the holding company for PNM,
reports were filed by PNM under the name "Public Service Company of New
Mexico."
The following documents, which have been filed with the Commission
by PNM (File No. 1-6986) and PNM Resources are incorporated by reference in
this Registration Statement:
1. PNM's Annual Report on Form 10-K for the year ended December
31, 2000, as amended.
2. PNM's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001.
3. PNM's Quarterly Report on Form 10-Q for the quarter ended June
30, 2001, as amended.
4. PNM's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2001.
5. PNM's Current Reports on Form 8-K dated January 18, 2001,
January 23, 2001, January 25, 2001 (two), February 26, 2001,
February 28, 2001, March 1, 2001, March 20, 2001, March 27,
2001, April 11, 2001 (two), April 12, 2001, April 16, 2001,
April 18, 2001 (two), May, 2, 2001 (two), May 18, 2001, May
25, 2001, June 1, 2001, June 14, 2001, July 3, 2001 (two)
2001, July 13, 2001, July 16, 2001, July 18, 2001 (three),
July 24, 2001, July 30, 2001, August 9, 2001, August 16, 2001,
August 17, 2001, September 13, 2001, September 18, 2001,
September 19, 2001, October 11, 2001, October 16, 2001,
October 23, 2001, October 24, 2001, October 25, 2001, November
2, 2001, November 15, 2001, November 16, 2001, November 30,
2001, December 12, 2001, December 14, 2001 (two), December 20,
2001, and December 27, 2001.
6. PNM Resources' Current Report on Form 8-K dated December 31,
2001, which includes the description of the common stock of
PNM Resources, no par value, and any amendment or report filed
for the purpose of updating such description.
7. All other reports filed by PNM or PNM Resources pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act on or
after December 31, 2000.
In addition, all documents subsequently filed by PNM Resources
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act after the date of this Registration Statement and prior to the filing of
a post-effective amendment to this Registration Statement which indicates
that all securities offered hereby have been sold or which removes from
registration all such securities then remaining unsold shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The deferred compensation obligations being registered represent
obligations (the "Obligations") of the Company to make future payments to the
participants in the Plan. The Obligations consist of the Company's commitment
under the Plan to deliver at a future date any of the following:
o compensation the receipt of which the participants have elected to
defer under the terms of the Plan,
o matching credits to participants' Plan accounts made by the
Company or its affiliates,
o non-elective credits to participants' Plan accounts made by the
Company or its affiliates, and
o earnings on the foregoing amounts based on a notional investment
measurement.
The amount of compensation to be deferred by each participant will
be determined in accordance with the Plan based on the elections of the
participant, and will be credited to a separate bookkeeping account in the
name of the participant. The participant's account will reflect units of an
investment fund intended to mirror substantially an investment in PNM
Resources' common stock and such other hypothetical investment media selected
pursuant to the Plan. The participant's account will be credited, or debited,
as the case may be, based on the returns on the Company Stock Fund and the
other hypothetical investment media established pursuant to the Plan, or
based upon earnings or losses incurred, pursuant to established procedures
under the Plan. The Company Stock Fund and other investment media will be
used only for the purpose of calculating hypothetical returns, and the
amounts in participants' Plan accounts will not actually be invested in the
selected investment media. Dividends paid on the common stock of PNM
Resources will be reflected in the participant's account by crediting to the
Company Stock Fund the amount of shares of common stock equal to the value of
the dividends, based on the closing price of PNM Resources' common stock on
the date the dividend is paid. The participant's account will also be
adjusted periodically to reflect any stock splits or other adjustments to PNM
Resources' common stock. All amounts in a participant's account will be
vested immediately.
The Obligations are generally payable, at the participant's
election, in a single lump-sum, installments or annuity (single life or
survivor) upon the participant's death or termination of employment with the
Company and all of its affiliates. Amounts invested in the Company Stock
Fund, however, are payable only in a lump-sum. Unless the participant elects
to receive a lump-sum cash distribution, amounts invested in the Company
Stock Fund are distributable in PNM Resources' common stock. Subject to a ten
percent (10%) penalty, participants may elect to withdraw up to fifty percent
(50%) of their account value while still employed by the Company. Such
in-service withdrawals will be subject to restrictions necessary to insure
compliance with Section 16(b) of the Securities Exchange Act and the rules and
regulations promulgated thereunder. There is no trading market for the
Obligations.
The Obligations are unsecured general obligations of the Company to
make future payments to participants in accordance with the terms of the
Plan. Obligations will rank without preference with other unsecured and
unsubordinated indebtedness of the Company from time to time outstanding and
are, therefore, subject to the risks of the Company's insolvency. No trustee
has been appointed to take action with respect to the Obligations and each
participant in the Plan will be responsible for acting independently with
respect to, among other things, the giving of notices, responding to requests
for consents, waivers or amendments pertaining to the Obligations, enforcing
covenants and taking action upon default.
A participant's rights to any amounts credited to his accounts may
not be alienated, sold, transferred, assigned, pledged, attached or otherwise
encumbered by the participant and may only pass upon the participant's death
pursuant to a beneficiary designation made by a participant in accordance
with the terms of the Plan. The Obligations are not convertible into any
other security of the Company. All or a portion of the Obligations are
payable in shares of common stock of PNM Resources, as described above. The
Company reserves the right to amend, merge, consolidate or terminate the Plan
at any time or from time to time, except that no such action may,
without the consent of the affected participant, affect any of the
participant's rights with respect to the amount then credited to the
participant's account.
Obligations in an aggregate principal amount of $2,052,000 are being
registered under the Plan. Further amounts may be registered and issued as
new or existing Plan participants elect to defer portions of their
compensation in subsequent years.
Copies of the Plan and the First Amendment thereto are filed as
Exhibits 4.5 and 4.6 hereto and are incorporated herein by reference.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6 of Article II of PNM Resources' By-Laws contains the
following provisions with respect to indemnification of directors and
officers:
Each person serving as a director or an officer of the Corporation, or,
at the request of the Corporation, as a director or an officer of any
other company in which the Corporation has a financial interest and
regardless of whether or not the person is then in office, and the
heirs, executors, administrators and personal representatives of the
person, shall be indemnified by the Corporation to the full extent of
the authority of the Corporation to so indemnify as authorized by New
Mexico law.
Section 53-11-4.1 of the Business Corporation Act of the State of
New Mexico provides that a corporation shall have power to indemnify any
person made (or threatened to be made) a party to any proceeding (whether
threatened, pending or completed) by reason of the fact that the person is or
was a director (or, while a director, is or was serving in any of certain
other capacities) if: (1) the person acted in good faith; (2) the person
reasonably believed: (a) in the case of conduct in the person's official
capacity with the corporation, that the person's conduct was in its best
interests; and (b) in all other cases, that the person's conduct was at least
not opposed to its best interests; and (3) in the case of any criminal
proceeding, the person had no reasonable cause to believe the person's
conduct was unlawful. Indemnification may be made against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by
the person in connection with the proceeding, but may be limited or
unavailable with respect to certain proceedings. In some instances,
indemnification of a director may be mandatory or, upon the application of a
director, may be ordered by a court. Reasonable expenses incurred by a
director may, under certain circumstances, be paid or reimbursed in advance
of a final disposition of a proceeding. Unless limited by its articles of
incorporation, a corporation may (or, as the case may be, shall) indemnify
and advance expenses to an officer of the corporation to the same extent as
to a director under Section 53-11-4.1. Also, unless limited by its articles
of incorporation, a corporation has (1) the power to indemnify and to advance
expenses to an employee or agent of the corporation to the same extent that
it may indemnify and advance expenses to directors under the statute and (2)
additional power to indemnify and to advance reasonable expenses to an
officer, employee or agent who is not a director to such further extent,
consistent with law, as may be provided by its articles of incorporation,
bylaws, general or specific action of its Board of Directors, or contract.
Section 53-11-4.1 was amended in 1987 to provide that the
indemnification authorized thereunder shall not be deemed exclusive of any
rights to which those seeking indemnification may be entitled under the
articles of incorporation, the by-laws, an agreement, a resolution of
shareholders or directors or otherwise.
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising
on the part of PNM Resources out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
A list of exhibits is set forth on the Exhibit Index.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the SEC by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act (and, where applicable, each filing of the
annual report of the employee benefit plan pursuant to Section 15(d) of the
Securities Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Albuquerque, State of New Mexico,
on January 4, 2002.
PNM RESOURCES, INC.
By: /s/ M. H. Maerki
--------------------------------
M. H. Maerki
Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints J. E. Sterba, M. H. Maerki,
and J. R. Loyack and each of them, either one of whom may act without joinder
of the other, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any or all pre-
and post-effective amendments to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and conforming all that
said attorneys-in-fact and agents, and each of them, or the substitute or
substitutes of any or all of them, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their capacities and on
the dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ J. E. Sterba Chairman, President and Chief
--------------------------------------- Executive Officer January 4, 2002
J. E. Sterba (Principal Executive Officer); Director
/s/ M. H. Maerki Senior Vice President and Chief
--------------------------------------- Financial Officer January 4, 2002
M. H. Maerki (Principal Financial Officer)
/s/ J. R. Loyack Vice President, Corporate Controller
--------------------------------------- and Chief Accounting Officer January 4, 2002
J. R. Loyack (Principal Accounting Officer)
/s/ R. G. Armstrong Director January 4, 2002
---------------------------------------
R. G. Armstrong
/s/ R. M. Chavez Director January 4, 2002
---------------------------------------
R. M. Chavez
---------------------------------------
J. A. Godwin Director
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ B. F. Montoya Director January 4, 2002
---------------------------------------
B. F. Montoya
/s/ M. T. Pacheco Director January 4, 2002
---------------------------------------
M. T. Pacheco
/s/ T. F. Patlovich Director January 4, 2002
---------------------------------------
T. F. Patlovich
---------------------------------------
R. M. Price Director
/s/ P. F. Roth Director January 4, 2002
---------------------------------------
P. F. Roth
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Articles of Incorporation of PNM Resources, Inc. (incorporated
by referenced to Exhibit B of Pre-Effective Amendment No. 1 to
the Registration Statement on Form S-4 of PNM Resources, Inc.
(Registration No. 333-32170), filed on April 18, 2000)
4.2 Articles of Amendment to the Articles of Incorporation of PNM
Resources, Inc., dated April 10, 2001 (incorporated by
reference to Exhibit 4.1.2 of Post-Effective Amendment No. 1
to the Registration Statement on Form S-3 of PNM Resources,
Inc. (Registration No. 333-10993), filed on October 4, 2001)
4.3 Articles of Amendment to the Articles of Incorporation of PNM
Resources, Inc., dated July 12, 2001 (incorporated by
reference to Exhibit 4.1.3 of Post-Effective Amendment No. 1
to the Registration Statement on Form S-3 of PNM Resources,
Inc. (Registration No. 333-10993), filed on October 4, 2001)
4.4 Bylaws of PNM Resources, Inc., as amended through April 17,
2001 (incorporated by reference to Exhibit 4.2 of
Post-Effective Amendment No. 1 to the Registration Statement
on Form S-3 of PNM Resources, Inc. (Registration No.
333-10993), filed on October 4, 2001)
4.5 First Restated and Amended Public Service Company of New
Mexico Executive Savings Plan (incorporated by reference to
Exhibit 4 to the Registration Statement on Form S-8 of the
Public Service Company of New Mexico (Registration No.
333-73648), filed on November 19, 2001)
4.6 First Amendment to the First Restated and Amended Public
Service Company of New Mexico Executive Savings Plan (filed
herewith)
15 Letter Regarding Unaudited Interim Financial Information
(filed herewith)
23 Consent of Arthur Andersen LLP (filed herewith)
24 Power of Attorney (included on signature page)
An opinion of counsel as to the valid issuance of the securities being
registered under this Registration Statement is not required because the
securities will not be original issuance securities. If that situation should
change, an appropriate opinion of counsel will be filed.