As filed with the Securities and Exchange Commission on September 30, 2002
Registration No. ___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PNM RESOURCES, INC.
(Exact name of registrant as specified in its charter)
New Mexico 85-0468296
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Alvarado Square
Albuquerque, New Mexico 87158
(Address of principal executive offices, including zip code)
PNM RESOURCES, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
M.H. 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)
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The Commission is requested to mail signed copies of all orders, notices and
communications to:
C. L. Moore
Keleher & McLeod, P.A.
414 Silver Avenue, S. W.
Albuquerque, New Mexico 87103
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This Registration Statement shall become effective upon filing in accordance
with Rule 464 under the Securities Act of 1933.
CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to registered offering price aggregate offering registration
be registered per unit (1) price (1) fee
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Common Stock,
no par value 250,000 shares $19.55 $4,887,500 $449.65
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(1) Estimated for the purpose of calculating the registration fee pursuant to
Rule 457 of the Securities Act of 1933. As to shares of common stock
issuable pursuant to the PNM Resources, Inc. Employee Stock Purchase Plan,
the offering price is calculated solely on the basis of the average of the
high and low sale prices of the common stock of PNM Resources, Inc. on the
New York Stock Exchange on September 17, 2002.
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(2) For purposes of computing the registration fee only. Pursuant to Rule
457(h) under the Securities Act, the "proposed maximum offering price per
unit" and the "proposed maximum aggregate offering price" are based upon
the average of the high and low sale prices of the Common Stock on the New
York Stock Exchange on September 27, 2002.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S-8 will be sent or given to employees participating in the PNM Resources,
Inc. Employee Stock Purchase Plan (the "Plan") as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act"). 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.
The following documents previously filed with the Commission by
PNM Resources, Inc. and its wholly owned subsidiary, Public Service Company of
New Mexico ("PNM"), are hereby incorporated by reference in this registration
statement:
1. PNM Resources' and PNM's Annual Report on Form 10-K for the
year ended December 31, 2001.
2. PNM Resources' and PNM's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2002.
3. PNM Resources' and PNM's Quarterly Report on Form 10-Q for
the quarter ended June 30, 2002.
4. PNM Resources' Current Reports filed on Form 8-K dated
January 15, 2002, January 23, 2002, January 24, 2002, February 21, 2002,
February 27, 2002, March 14, 2002, March 19, 2002, April 5, 2002, April 9, 2002,
April 19, 2002, April 24, 2002, May 10, 2002, May 23, 2002, June 10, 2002 (two),
June 18, 2002, July 10, 2002, July 12, 2002, July 17, 2002, July 18, 2002, July
23, 2002, July 24, 2002, August 14, 2002, August 19, 2002, August 23, 2002,
September 13, 2002, September 18, 2002, September 26, 2002, and September 27,
2002.
5. PNM Resources' Current Report on Form 8-K filed with the
Commission on December 31, 2001 which includes the description of the common
stock of PNM Resources, no par value per share, and any amendment or report
filed for the purpose of updating such description.
6. 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,
2001.
All documents subsequently filed by PNM Resources or by the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, (the "Exchange Act") prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold will be
deemed to be incorporated by reference in this registration statement and to be
a part hereof from the date of filing of such documents. Any statement contained
in a document 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 other subsequently filed document which is
also incorporated or 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.
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The consolidated financial statements included in the Annual
Report on Form 10-K for the year ended December 31, 2001 incorporated herein by
reference were audited by Arthur Andersen LLP. There may be risks and recovery
by investors may be limited as a result of our prior use of Arthur Andersen LLP
as our independent public accounting firm. On March 31, 2002, Arthur Andersen
LLP, our independent public accounting firm for the years ended December 31,
1993 through 2001, was indicted on federal obstruction of justice charges
arising from the U.S. government's investigation of Enron. On June 7, 2002, we
dismissed Arthur Andersen LLP as our independent public accountants and hired
Deloitte & Touche LLP as our independent auditors for the year ending December
31, 2002. Because our former audit partner has left Arthur Andersen LLP, after
reasonable efforts, we have not been able to obtain the written consent of
Arthur Andersen LLP to the incorporation into this registration statement of
their report with respect to the consolidated financial statements which
appeared in our Annual Report on Form 10-K for the year ended December 31, 2001.
Under these circumstances, Rule 437a under the Securities Act permits us to
dispense with the requirement under Section 7 of the Securities Act to file such
consent with this registration statement. The absence of such consent may limit
recovery by investors on certain claims. In particular, and without limitation,
investors will not be able to recover against Arthur Andersen LLP under Section
11(a)(4) of the Securities Act for any untrue statement of material fact
contained in our consolidated financial statements for the year ended December
31, 2001 or any omissions to state a material fact required to be stated
therein. In addition, the ability of Arthur Andersen LLP to satisfy any claims
(including claims arising from Arthur Andersen LLP's provision of auditing and
other services to us) may be limited as a practical matter due to recent events
involving Arthur Andersen LLP.
With respect to the unaudited interim financial information for
the three and six-month periods ended June 30, 2002 which is incorporated herein
by reference, Deloitte & Touche LLP have applied limited procedures in
accordance with professional standards for a review of such information.
However, as stated in their report included in PNM Resources' Quarterly Report
on Form 10-Q for the quarter ended June 30, 2002 and incorporated by reference
herein, they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their report on
such information should be restricted in light of the limited nature of the
review procedures applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
report on the unaudited interim financial information because that report is not
a "report" or a "part" of the registration statement prepared or certified by an
accountant within the meaning of Sections 7 and 11 of the Securities Act.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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
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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. PNM Resources has entered into agreements with each
director and officer which provide for indemnification of directors and officers
to the fullest extent permitted by law including advancement of litigation
expenses where appropriate. The agreements provide for the appointment of a
reviewing party by the Board of Directors to make a determination whether
claimed indemnification is permitted under applicable law.
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.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers of sales are being
made, 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 the 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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
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(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) 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
Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the 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.
4. 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 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the 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.
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 Commission 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 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.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities
Act, 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 September
30, 2002.
PNM RESOURCES, INC.
By:/s/J.E. Sterba
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J. E. Sterba
Chairman, President and Chief Executive 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, 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 amendments to this registration statement, including post-effective
amendments, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the 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 September 30, 2002
----------------------- Executive Officer; Director
J. E. Sterba (Principal Executive Officer)
/s/ M. H. Maerki Senior Vice President and Chief September 30, 2002
----------------------- Financial Officer
M. H. Maerki (Principal Financial Officer)
/s/ J. R. Loyack Vice President and Chief September 30, 2002
----------------------- Accounting Officer
J. R. Loyack (Principal Accounting Officer)
/s/ R. G. Armstrong Director September 30, 2002
-----------------------
R. G. Armstrong
/s/ R. M. Chavez Director September 30, 2002
-----------------------
R. M. Chavez
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Signature Capacity Date
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/s/ J. A. Dobson Director September 30, 2002
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J. A. Dobson
/s/ J. A. Godwin Director September 30, 2002
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J. A. Godwin
/s/ M. T. Pacheco Director September 30, 2002
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M. T. Pacheco
/s/ T. F. Patlovich Director September 30, 2002
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T. F. Patlovich
/s/ R. M. Price Director September 30, 2002
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R. M. Price
/s/ B. S. Reitz Director September 30, 2002
-----------------------
B. S. Reitz
/s/ P. F. Roth Director September 30, 2002
-----------------------
P. F. Roth
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THE PLAN. Pursuant to the requirements of the Securities Act, the Board
Governance and Human Resources Committee of the Board of Directors of PNM
Resources, Inc. (which administers the PNM Resources, Inc. Employee Stock
Purchase Plan) 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 September 30, 2002.
PNM RESOURCES, INC. EMPLOYEE STOCK PURCHASE PLAN
By:/s/ P. F. Roth
-----------------------------------------
P. F. Roth
Chairman of the Board Governance and Human
Resources Committee
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EXHIBIT INDEX
Exhibit No. Description
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4.1 Restated Articles of Incorporation of PNM Resources, Inc.
(incorporated by reference to Exhibit 3.1 of PNM Resources and
PNM's Annual Report on Form 10-K for the year ended December
31, 2001).
4.2 Bylaws of PNM Resources, Inc. as amended through April 17,
2001 (incorporated by reference to Exhibit 4.2 of the
Post-Effective Amendment No. 1 to the registration statement
on Form S-3 of PNM Resources, Inc., File No. 333-10993, filed
on October 4, 2001).
4.3 PNM Resources, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Keleher & McLeod, P.A.
15 Letter regarding Unaudited Interim Financial Information.
23.1 Consent of Arthur Andersen LLP (consent of independent public
accountants omitted pursuant to Rule 437a)
23.2 Consent of Keleher & McLeod, P.A. (included in Exhibit 5.1)
24 Power of Attorney (See signatures page in Part II).
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