s8_121708cpnmr.htm
As filed
with the Securities and Exchange Commission on December 17, 2008
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
85-0468296
(State or
other
jurisdiction
(I.R.S.
Employer
incorporation
or
organization) Identification
No.)
Alvarado
Square, Albuquerque, New Mexico 87158
(Address,
including zip code, of Registrant’s Principal Executive Offices)
PNM
Resources, Inc. Executive Savings Plan II
(Full
title of the Plan)
Patrick
T. Ortiz, Esq.
Senior
Vice President, General Counsel & Secretary
PNM
Resources, Inc.
414
Silver Street SW
Albuquerque,
New Mexico 87102
Telephone:
(505) 241-2896
Fax:
(505) 241-2368
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copy
to:
Charles
L. Moore, Esq.
Associate
General Counsel
PNM
Resources, Inc.
Alvarado
Square
Albuquerque,
New Mexico 87158
Telephone:
(505) 241-4935
Fax:
(505) 241-2393
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Large
accelerated filer ý Accelerated
filer ¨
Non-accelerated
filer ¨
Smaller reporting company ¨
(Do not
check if a smaller reporting company)
This
Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933, as amended.
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of securities to be registered
|
Amount
to be registered(1)
|
Proposed
maximum
offering
price per share
|
Proposed
maximum aggregate offering price
|
Amount
of registration fee
|
|
Common
Stock, no par value per share(2)
|
37,500
|
$10.42
(4)
|
$390,750
|
$15.36
|
|
PNM
Resources, Inc. Executive Savings Plan Obligations(3)
|
100%
|
N/A
|
$4,500,000
|
$84.75
(5)
|
(1) In
accordance with Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement shall be deemed to cover any
additional securities that may from time to time be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions. In addition, this Registration Statement also covers an
indeterminate amount of plan interests to be offered or sold pursuant to the
employee benefit plan(s) described herein.
(2) This
Registration Statement registers 37,500 shares of PNM Resources, Inc.’s (the
“Company”) common stock, no par value per share (“Common Stock”). On
December 17, 2008, the PNM Resources, Inc. Executive Savings Plan was merged
with and into the PNM Resources, Inc. Executive Savings Plan II (the “Surviving
Plan” and such event, the “Merger”). Such shares of Common Stock were previously
registered by the Company under a Form S-8 that it filed on January 4, 2002
(Registration No. 333-76316) (the “2002 Registration Statement”), which
registered 25,000 shares (37,500 shares after giving effect to a 3 for 2 stock
split on June 11, 2004).
(3) The
PNM Resources, Inc. Executive Savings Plan Obligations are unsecured obligations
of the Company to pay deferred compensation in the future in accordance with the
Surviving Plan for a select group of eligible employees. This
Registration Statement registers an aggregate of $4,500,000 in unsecured
obligations of the Company to pay deferred compensation in the future in
accordance with the Surviving Plan. These obligations were previously
registered by the Company under the 2002 Registration Statement and a Form a S-8
that it filed on March 14, 2007 (Registration No. 333-141281) (the “2007
Registration Statement”), respectively.
(4) Estimated
solely for purposes of calculating the registration fee pursuant to Securities
Act Rule 457(h). As to shares of Common Stock issuable pursuant to
the Surviving Plan, the offering price is calculated using the average of the
high and low sale prices of the Common Stock as quoted on the New York Stock
Exchange on December 15, 2008.
(5) The
Company intends that the registration fee of $92.10 that it previously paid to
register $3,000,000 of these obligations under the 2007 Registration Statement
be applied to the registration fee for such obligations under this Registration
Statement ($176.85-$92.10= $84.75).
EXPLANATORY
NOTE
This Registration Statement on Form S-8
(this “Registration Statement”) is being filed by PNM Resources, Inc., a New
Mexico corporation (the “Company”), pursuant to General Instruction E to Form
S-8, to transfer the registration of (i) 37,500 shares of the Company’s common
stock, no par value per share (“Common Stock”), and (ii) an aggregate of
$4,500,000 of PNM Resources, Inc. Executive Savings Plan Obligations from the
Company’s PNM Resources, Inc. Executive Savings Plan (the “Former Plan”), to the
registration statement covering the PNM Resources, Inc. Executive Savings Plan
II (the “Surviving Plan”). The Former Plan was merged with and into
the Surviving Plan on December 17, 2008 (such transaction, the
“Merger”). Such shares of Common Stock and obligations under the
Former Plan were previously registered on two Registration Statements on Form
S-8 that the Company filed with the Securities and Exchange Commission (the
“Commission”) on January 4, 2002 (Registration No. 333-76316) (the “2002
Registration Statement”) and March 14, 2007 (Registration No. 333-141281) (the
“2007 Registration Statement”), respectively. As soon as practicable
after the filing of this Registration Statement, the Company intends to file
post-effective amendments to the 2002 Registration Statement and 2007
Registration Statement deregistering the shares of Common Stock and Former Plan
obligations registered thereunder. The contents of the 2002
Registration Statement and 2007 Registration Statement are incorporated herein
by reference.
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 Surviving Plan as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the “Securities Act”) and Introductory Note
1 of Form S-8. 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.
In
addition to the contents of the 2002 Registration Statement and the 2007
Registration Statement, the following documents previously filed with the
Commission by the Company are hereby incorporated by reference in this
Registration Statement:
1. Annual
Report on Form 10-K for the fiscal year ended December 31, 2007 as
filed on February 29, 2008.
2. Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2008, June 30,
2008 and September 30, 2008 as filed on May 7, 2008, August 14, 2008 and
November 5, 2008, respectively.
3. Current
Reports on Form 8-K or 8-K/A, as appropriate, as filed on
January 17, 2008, February 28, 2008,
March 11, 2008, March 14, 2008, May 7, 2008, May 9,
2008, May 12, 2008, May 21, 2008, June 26, 2008, July 22, 2008, August 1, 2008,
August 7, 2008, August 13, 2008, August 14, 2008, August 26, 2008, September 16,
2008, September 19, 2008, October 16, 2008, October 31, 2008, November 4, 2008,
November 13, 2008 and November 21, 2008.
4. The
description of the Company’s common stock contained in the Current Report on
Form 8-K filed on December 31, 2001 and any amendment or report filed for the
purpose of updating such description, including the Current Reports on Form 8-K
as filed on August 17, 2006 and November 21, 2008.
All
documents subsequently filed by the Company or the Surviving Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the “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 deregisters 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
8. Exhibits.
The following exhibits are filed with
this Registration Statement:
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Exhibit No.
|
Description
|
|
4.1
|
PNM
Resources, Inc. Executive Savings Plan II as amended and restated
effective January 1, 2009
|
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23.1
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Consent
of Deloitte & Touche LLP (filed herewith)
|
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24.1
|
Power
of Attorney (included on the signature page hereof)
|
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.
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 of
1933;
(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:
(A) Paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration
statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement; and
(B) Paragraphs
(a)(1)(i), (a)(1)(ii) and a(1)(iii) of this section do not apply if the
registration statement is on Form S-3 or Form S-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(C) Provided, further, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is for an offering of asset-backed securities on Form S-1 or Form S-3,
and the information required to be included in a post-effective amendment is
provided pursuant to Item 1100(c) of Regulation AB.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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) If the
registrant us a foreign private issuer, to file a post-effective amendment to
the registration statement to include nay financial statements required by Item
8.A of Form 20-F at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise required by
Section 10(a)(3) of the Act need not be furnished, provided, that the registrant
includes in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is at least as
current as the date of the those financial
statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form
F-3.
(5) That, for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If the
registrant is relying on Rule 430B (§230.430B of this chapter):
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B)
Each
prospectus required to be filed pursuant to Rule 424(b)(2), b(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided,
however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date; or
(ii) If the
registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first
use.
(6) That, for
the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii)
Any free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv)
Any other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) 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 of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will
be governed by the final adjudication of such issue.
SIGNATURES
THE
REGISTRANT. Pursuant to the requirements of the Securities Act, PNM
Resources, Inc. 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 December
17, 2008.
PNM
RESOURCES, INC.
By: /s/ Jeffry E.
Sterba
Jeffry E.
Sterba
Chairman
and Chief Executive Officer
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below, hereby
constitutes and appoints Jeffry E. Sterba, Charles N. Eldred, and Thomas G.
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 any registration statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, 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 confirming 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 of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the date
indicated.
|
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|
|
| |
|
|
|
/s/ Jeffry E. Sterba |
Chairman and Chief |
December
17, 2008
|
|
Jeffry E. Sterba |
Executive Officer; Director |
|
| |
(Principal Executive Officer) |
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/s/ Charles N. Eldred |
Executive Vice President and Chief |
December
17, 2008
|
|
Charles N. Eldred |
Financial Officer |
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(Principal Financial Officer) |
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/s/ Thomas G. Sategna |
Vice President and Corporate |
December
17, 2008
|
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Thomas G. Sategna |
Controller (Principal Accounting |
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Officer) |
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/s/ Adelmo E. Archuleta |
Director |
December
17, 2008
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Adelmo E. Archuleta |
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/s/ Julie A. Dobson |
Director |
December
17, 2008
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Julie A. Dobson |
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/s/ Woody L. Hunt |
Director |
December
17, 2008
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Woody L. Hunt |
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/s/ Robert R. Nordhaus |
Director |
December
17, 2008
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Robert R. Nordhaus |
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Director
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December
17, 2008
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Manuel T.
Pacheco
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Director
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December
17, 2008
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Robert M.
Price
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Director
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December
17, 2008
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Bonnie S.
Reitz
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Director
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December
17, 2008
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Donald K.
Schwanz
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Director
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December
17, 2008
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Joan B.
Woodard
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THE
PLAN. Pursuant to the requirements of the Securities Act, the Plan
Administrator of the Plan has duly caused this Registration Statement to be
signed on the Plan’s behalf by the undersigned thereunto duly authorized
officer, in the City of Albuquerque, State of New Mexico, on December 17,
2008.
PNM
RESOURCES, INC.
EXECUTIVE
SAVINGS PLAN II
By: /s/ Bonnie S.
Reitz
Bonnie S. Reitz
Chair of
the Human Resources and Compensation Committee
EXHIBIT
INDEX
|
Exhibit No.
|
Description
|
|
4.1
|
PNM
Resources, Inc. Executive Savings Plan II as amended and restated
effective January 1, 2009
|
|
23.1
|
Consent
of Deloitte & Touche LLP (filed herewith)
|
|
24.1
|
Power
of Attorney (included on signature page hereof)
|
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.