As filed with the Securities and Exchange Commission on March 17, 2004
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.
RETIREMENT SAVINGS PLAN
(Full title of the plan)
J. R. Loyack
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 registered (1) offering price aggregate registration
to be per unit (2) offering fee
registered price (2)
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Common Stock,
no par value 100,000 shares $29.55 $2,955,000 $374.40
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(1) Represents an additional 100,000 shares of common stock issuable pursuant
to the PNM Resources, Inc. Retirement Savings Plan, successor plan to
Public Service Company of New Mexico Master Employee Savings Plan and
Trust. 100,000 shares of common stock issuable (the "Plan") under the plan
were originally registered pursuant to Public Service Company of New
Mexico's Registration Statement on Form S-8 File No. 333-61598, on May 24,
2001, which was adopted by PNM Resources, Inc. in Post Effective Amendment
No. 1 filed on December 31, 2001. Pursuant to Rule 416 under the Securities
Act of 1933, to the extent additional shares of the registrant's common
stock may be issued or issuable as a result of a stock split or other
distribution declared at any time by the Board of Directors of the
registrant while this registration statement is in effect, this
registration statement is hereby deemed to cover all of such additional
shares of common stock. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also covers an
undeterminate amount of interests to be offered or sold pursuant to the
Plan.
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(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) of the Securities Act of 1933 based on the average of the
high and low sale prices of the registrant's common stock as reported on
the New York Stock Exchange on March 16, 2004.
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.
Retirement Savings 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 Securities and
Exchange Commission (the "Commission") by PNM Resources, Inc. are hereby
incorporated by reference in this registration statement:
1. PNM Resources' Annual Report on Form 10-K for the year ended
December 31, 2003.
2. Annual Report on Form 11-K for the fiscal year ended December
31, 2002 for the PNM Resources, Inc. Retirement Savings Plan, formerly known as
the PNM Resources, Inc. Master Employee Savings Plan and Trust.
3. PNM Resources' Current Report filed on Form 8-K dated January
14, 2004.
4. 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.
5. 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,
2003.
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.
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
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; and
(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 provisions described under Item 6 above, 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 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
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 March 17,
2004.
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, J.R. Loyack and T.
Sategna 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
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/s/ J. E. Sterba Chairman, President and Chief
--------------------- Executive Officer; Director March 17, 2004
J. E. Sterba (Principal Executive Officer)
/s/ J. R. Loyack Senior Vice President and Chief
--------------------- Financial Officer March 17, 2004
J. R. Loyack (Principal Financial Officer)
/s/ T. G. Sategna
--------------------- Vice President and Corporate Controller March 17, 2004
T. G. Sategna (Principal Accounting Officer)
/s/ A. E. Archuleta Director March 17, 2004
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A. E. Archuleta
/s/ R. G. Armstrong Director March 17, 2004
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R. G. Armstrong
/s/ R. M. Chavez Director March 17, 2004
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R. M. Chavez
Signature Capacity Date
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/s/ J. A. Dobson Director March 17, 2004
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J. A. Dobson
/s/ M. T. Pacheco Director March 17, 2004
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M. T. Pacheco
/s/ T. F. Patlovich Director March 17, 2004
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T. F. Patlovich
/s/ R. M. Price Director March 17, 2004
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R. M. Price
/s/ B. S. Reitz Director March 17, 2004
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B. S. Reitz
/s/ J. B. Woodard Director March 17, 2004
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J. B. Woodard
THE PLAN. Pursuant to the requirements of the Securities Act, the
Committee has duly caused this registration statement to be signed on the Plan's
behalf by the undersigned thereunto duly authorized, in the City of Albuquerque,
State of New Mexico, on March 11, 2004.
By: PNM RESOURCES, INC.
Retirement Savings Plan
By: /s/ Alice Cobb
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Alice Cobb
Committee Chairperson
EXHIBIT INDEX
Exhibit No. Description
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4.1.1 Restated Articles of Incorporation of PNM Resources, Inc.
(incorporated by reference to Exhibit 3.1 of the PNM Resources
and PNM's Annual Report on Form 10-K for the year ended
December 31, 2001 in File No. 333-32170).
4.2 Bylaws of PNM Resources, Inc. as amended through February 8,
2003 (incorporated by reference to Exhibit 3.2 to PNM
Resources, Inc. Annual Report on From 10-K for the fiscal year
ended December 31, 2003 in File No. 333-32170).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Grant Thornton LLP.
24 Power of Attorney (See signatures page in Part II).
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.
In lieu of the opinion of counsel or determination letter contemplated by Item
601(b)(5) of Regulation S-K, the registrant hereby undertakes that it will
submit or has submitted the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plan under Section 401 of the
Internal Revenue Code of 1986, as amended.