f8k_112108pnmr.htm
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UNITED
STATES
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SECURITIES
AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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FORM
8-K
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CURRENT
REPORT
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PURSUANT
TO SECTION 13 OR 15(d) OF THE
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SECURITIES
EXCHANGE ACT OF 1934
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Date
of Report (Date of earliest event reported)
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November
21 2008
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(November
17, 2008)
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Commission
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Name
of Registrants, State of Incorporation,
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I.R.S.
Employer
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File
Number
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Address
and Telephone Number
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Identification
No.
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001-32462
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PNM
Resources, Inc.
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85-0468296
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(A
New Mexico Corporation)
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Alvarado
Square
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Albuquerque,
New Mexico 87158
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(505)
241-2700
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______________________________
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(Former
name, former address and former fiscal year, if changed since last
report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)
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Pre-commencement
communications pursuant to Rule 13e-4 (c) under the Exchange Act
(17 CFR 240.13e-4(c)
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Item
3.02 Unregistered Sales of Equity Securities
On August
16, 2004, PNM Resources, Inc. (“PNMR”) announced that Cascade Investment, L.L.C.
(“Cascade”) had agreed to invest $100 million in equity-linked securities to be
issued by PNMR. The transaction was described in a Current Report on
Form 8-K filed by PNMR on August 16, 2004 with the Securities and Exchange
Commission (“SEC”).
On
October 7, 2005, PNMR completed the transaction and issued $100 million of
equity-linked securities, known as Hybrid Income Term Security (“HITS”) Units,
to Cascade. The transaction was described in a Current Report on Form
8-K filed by PNMR on October 14, 2005 with the SEC. The HITS Units
contained mandatory obligations under which the holder was required to purchase
$100 million of PNMR’s common stock, or at its election, preferred stock, on the
purchase contract settlement date, as well as a 2.5% undivided beneficial
ownership interest in a 5.1% Senior Note initially due 2010 (the “Senior
Notes”).
PNMR’s
Board of Directors adopted a Statement of Resolutions Establishing a Series of
Preferred Stock of PNMR (the “Resolution”) to be designated “Convertible
Preferred Stock, Series A” (the “Series A Preferred Stock”), to be issued in the
event Cascade elected to purchase preferred stock to settle its mandatory
obligations. The Resolution sets forth the designation, preferences, privileges
and voting powers of the Series A Preferred Stock. On October 27,
2008, PNMR’s Restated Articles of Incorporation, dated August 3, 2006, were
amended upon the filing of the Resolution with the New Mexico Public Regulation
Commission. The establishment of the Series A Preferred Stock was
reported in a Current Report on Form 8-K filed by PNMR on October 31, 2008 (the
“October 31 Form 8-K”) with the SEC.
On October 31, 2008, Cascade provided
notice of its election to purchase preferred stock to settle its obligations
under the HITS Units. Therefore, on November 17, 2008, the Company
issued 477,800 shares of Series A Preferred Stock to Cascade in a private
transaction exempt from registration under the Securities Act of 1933, as
amended (the “Securities Act”). The consideration PNMR received for
the issuance of Series A Preferred Stock was Cascade’s tender of the Senior
Notes, which had been pledged to secure Cascade’s obligations pursuant to the
settlement of the HITS. PNMR received no additional proceeds for the
issuance of the Series A Preferred Stock and the $100 million principal amount
of outstanding Senior Notes was cancelled.
The
designation, preferences, privileges and voting powers of the Series A Preferred
Stock are set forth in PNMR’s Articles of Incorporation, as amended to date,
filed herewith as Exhibit 3.1, which designation, preferences, privileges and
voting powers are incorporated herein by reference. The Series A
Preferred Stock was issued in reliance upon the exemption from registration
provided by Rule 506 of Regulation D (“Regulation D”) under the Securities Act,
with Cascade being an “accredited investor” (as such term is defined in Rule
501(a) of Regulation D).
The
Series A Preferred Stock discussed in this Current Report on Form 8-K has not
been registered under the Securities Act or any state securities laws and may
not be reoffered or sold in the United States absent registration or an
applicable exemption from the registration requirements of the Securities Act
and applicable state securities laws. This Current Report on Form 8-K does
not constitute an offer to sell or the solicitation of an offer to buy any
securities.
Item
3.03 Material Modification to Rights of Security Holders.
Reference
is made to the information set forth under Item 3.02 above and is incorporated
into this Item 3.03 by reference.
Item
8.01 Other Events.
A.
Description of common stock
PNMR is
hereby updating the description of the common stock of PNMR that was provided in
its Current Report on Form 8-K filed with the SEC on August 17, 2006, which
updated the description provided in its Current Report on Form 8-K filed
December 31, 2001.
DESCRIPTION
OF COMMON STOCK OF PNM RESOURCES, INC.
The
following descriptions of our common stock and the relevant provisions of the
articles of incorporation of PNMR, as amended through October 27, 2008 (our
“Articles of Incorporation”), and by-laws are summaries and are qualified by
reference to our Articles of Incorporation filed with the SEC as exhibit 3.1 to
this Current Report (incorporated by reference herein) and the by-laws
previously filed with the SEC as an exhibit to our Current Report on Form 8-K as
filed June 27, 2007 (incorporated by reference herein). The following also
summarizes certain applicable provisions of the New Mexico Business Corporation
Act and the New Mexico Public Utility Act and those summaries are qualified by
reference to those Acts.
Our
authorized capital stock consists of 120,000,000 shares of common stock, no par
value and 10,000,000 shares of preferred stock, no par value. As of November 20,
2008, 86,498,465 shares of our common stock and 477,800 shares of our Series A
Preferred Stock were outstanding. Each share of Series A Preferred
Stock is convertible at the option of the holder at any time into 10 shares of
common stock, subject to certain anti-dilution adjustments.
Dividend
Rights
After
giving effect to any prior rights of our preferred stock, we will pay dividends
on our common stock as determined by our Board of Directors (the “Board”) out of
legally available funds. Our ability to pay dividends depends primarily
upon the ability of our subsidiaries to pay dividends or otherwise transfer
funds to us. Various financing arrangements, charter provisions and
regulatory requirements may impose certain restrictions on the ability of our
subsidiaries to transfer funds to us in the form of cash dividends, loans or
advances.
Unless
waived by the holders of at least two-thirds of the number of then outstanding
shares of Series A Preferred Stock, no dividend on our common stock shall be
determined unless a dividend on the Series A Preferred Stock is declared and
paid at the same time in an amount equal to the dividend that would be received
by a holder of the number of shares (including fractional shares) of common
stock into which such Series A Preferred Stock is convertible on the record date
for such dividend.
Voting
Rights
Holders
of common stock are entitled to one vote for each share held by them on all
matters submitted to our shareholders. Holders of our common stock do not have
cumulative voting rights in the election of directors. The New Mexico Business
Corporation Act and our Articles of Incorporation and by-laws generally require
the affirmative vote of a majority of the shares represented at a shareholder
meeting and entitled to vote for shareholder action, including the election of
directors. Under the New Mexico Business Corporation Act, some corporate
actions, including amending the articles of incorporation and approving a plan
of merger, consolidation or share exchange, require the affirmative vote of a
majority of the outstanding shares entitled to vote, which could include, in
certain circumstances, classes of preferred stock.
Our
Articles of Incorporation limit the Board to designating voting rights for
classes of preferred stock only (1) when dividends on the preferred stock
are not paid, (2) when proposed changes to the Articles of Incorporation
would adversely affect preferred shareholders’ rights and privileges or
(3) if the Board issues a series of preferred stock convertible into common
stock and confers upon the holders of such convertible preferred stock the right
to vote as a single class with holders of common stock on all matters submitted
to a vote of holders of common stock at a meeting of shareholders other than for
election of directors, with the same number of votes as the number of shares of
common stock into which the shares of such preferred stock are convertible,
provided that at all times the aggregate preferred stock outstanding with such
voting rights is convertible into no more than 12 million shares of common
stock. The 477,800 currently outstanding shares of Series A Preferred Stock are
convertible into 4,778,000 shares of common stock, subject to certain
anti-dilution adjustments.
Holders
of each outstanding share of Series A Preferred Stock are entitled to vote as a
single class with holders of our common stock on all matters except the election
of directors and are entitled to the number of votes corresponding to the number
of shares of common stock into which such Series A Preferred Stock is
convertible on the record date for determining shareholders entitled to
vote.
Our
Articles of Incorporation do not allow our directors to create classes of
directors. All directors are elected annually.
Liquidation
Rights
In the
event we are liquidated or dissolved, either voluntarily or involuntarily, the
holders of our preferred stock will have priority (after any of our creditors)
with respect to the distribution of assets. After the holders of our preferred
stock are paid their aggregate liquidation preference, the holders of our common
stock will be entitled, subject to the rights, if any, of the holders of our
preferred stock, to share ratably (according to the number of shares held by
them) in all of our remaining assets available for distribution.
Each
share of Series A Preferred Stock is entitled to a liquidation preference of
$1.00 per share. After that claim is satisfied, holders of our common
stock are entitled to, ratably, an amount equal to $1.00, divided by the number
of shares of common stock into which a share of Series A Preferred Stock is then
convertible, and multiplied by the number of shares of common stock then
outstanding. After that claim is satisfied, all remaining assets will
be distributed to the holders of the Series A Preferred Stock and common stock
ratably on the basis of the number of shares of outstanding common stock and, in
the case of the Series A Preferred Stock, the number of shares of common stock
into which the outstanding shares of Series A Preferred Stock are then
convertible.
Preemptive
Rights
The
holders of our common stock do not have a preemptive right to purchase shares of
our authorized but unissued shares, or securities convertible into shares or
carrying a right to subscribe to or acquire shares, except under the terms and
conditions as may be provided by our Board in its sole judgment.
As
discussed above, each share of Series A Preferred Stock is convertible at the
option of the holder at any time into 10 shares of common stock, subject to
certain anti-dilution adjustments.
Listing
Our
common stock is listed on the New York Stock Exchange under the “PNM”
symbol.
Transfer
Agent and Registrar
The
transfer agent and registrar for the common stock is BNY Mellon Shareowner
Services, Jersey City, New Jersey.
Certain
Other Matters
Our
Articles of Incorporation and by-laws include a number of provisions that may
have the effect of discouraging persons from acquiring large blocks of our stock
or delaying or preventing a change in our control. The material provisions that
may have such an effect include:
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authorization
for our Board to issue our preferred stock in series and to fix rights and
preferences of the series (including, among other things, whether, and to
what extent, the shares of any series will have voting rights, within the
limitations described above, and the extent of the preferences of the
shares of any series with respect to dividends and other
matters);
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advance
notice procedures with respect to any proposal other than those adopted or
recommended by our Board; and
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provisions
specifying that only a majority of the Board, the chairman of the Board,
the president or holders of not less than one-tenth of all our shares
entitled to vote may call a special meeting of
stockholders.
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Under the
New Mexico Public Utility Act, approval of the New Mexico Public Regulation
Commission is required for certain transactions which may result in our change
in control or exercise of control.”
B.
PNMR Direct Plan
The
PNM Resources, Inc. Direct Plan (“Plan”) allows investors to invest in PNMR
common stock, no par value, with an initial minimum investment of $50 and to
reinvest cash dividends in additional shares of common stock. As
previously reported in a Current Report on Form 8-K filed August 31, 2006, (1)
offering of shares of common stock under the Plan was registered pursuant to a
Registration Statement on Form S-3, File No. 333-100186, filed September 30,
2002, as amended to date, (2) the current Plan was filed as Exhibit 99.1 to the
Current Report filed August 31, 2006, and (3) the terms of the current Plan were
outlined in the Prospectus dated August 31, 2006 filed with the SEC on August
31, 2006 under File No. 333-100186.
Pursuant
to Rule 415, PNMR is continuing the registration of shares offered under the
Plan by filing separately today with the SEC a Prospectus Supplement dated
November 21, 2008 to PNMR’s Registration Statement on Form S-3ASR, File No.
333-136713, filed August 18, 2006. This Prospectus Supplement
outlines the terms and conditions of the offering of shares of Common Stock
under the Plan filed as Exhibit 99.1 to the Current Report filed August 31,
2006.
Item
9.01 Financial Statements and Exhibits
(c)
Exhibits.
Exhibit
Number Exhibit
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3.1
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Articles
of Incorporation of PNM Resources, Inc., as amended to date (Certificate
of Amendment dated October 27, 2008 and Restated Articles of Incorporation
dated August 3, 2006)
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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PNM
RESOURCES, INC.
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(Registrant)
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Date: November
21, 2008
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/s/
Thomas G. Sategna
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Thomas
G. Sategna
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Vice
President and Corporate Controller
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(Officer
duly authorized to sign this
report)
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