s8esp2_052009pnmr.htm
As filed
with the Securities and Exchange Commission on May 20, 2009
Registration
No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
PNM
RESOURCES, INC.
(Exact
name of registrant as specified in its charter)
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New
Mexico
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85-0468296
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(State
or other jurisdiction of
incorporation or
organization)
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(I.R.S.
Employer
Identification
No.)
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Alvarado
Square, Albuquerque, New Mexico 87158
(Address
of Principal Executive Offices) (Zip Code)
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, 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)
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CALCULATION
OF REGISTRATION FEE
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Title
of
securities
to
be
registered
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Amount
to be registered (1)
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Proposed
maximum offering price per share (2)
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Proposed
maximum aggregate offering price (2)
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Amount
of registration fee
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Common
Stock, no par value per share
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120,000
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$9.36
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$1,123,200.00
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$62.67
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(1)
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In
accordance with Rule 416 promulgated 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, pursuant to
Rule 416(c) under the Securities Act, this registration statement also
covers an indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plan(s) described
herein.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration fee,
pursuant to Rules 457(c) and 457(h) of the Securities Act. The
offering price is calculated using the average of the high and low sale
prices of PNM Resources, Inc.’s common stock as quoted on the New York
Stock Exchange on May 18, 2009.
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EXPLANATORY
NOTE
PNM
Resources, Inc. (the “Company”) is filing this Registration Statement pursuant
to General Instruction E of Form S-8 to register an additional 120,000 shares of
the Company’s common stock, no par value per share, issuable pursuant to the
Company’s Executive Savings Plan II (the “ESP”). This Registration
Statement relates to the following Registration Statements on Form S-8 that the
Company previously filed with the Securities and Exchange Commission (the
“SEC”):
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·
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Registration
Statement on Form S-8 filed on December 17, 2004 (No. 333-121371) (the
“2004 Form S-8”), pursuant to which the Company registered 25,000 shares
of the Company’s common stock issuable under the ESP and $2,500,000 of
unsecured obligations to pay deferred compensation in accordance with the
ESP;
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·
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Registration
Statement on Form S-8 filed on December 4, 2006 (No. 333-139108) (the
“2006 Form S-8”), pursuant to which the Company registered an additional
$1,500,000 of unsecured obligations to pay deferred compensation in
accordance with the ESP;
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·
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Registration
Statement on Form S-8 filed on March 14, 2007 (No. 333-141282) (the “2007
Form S-8”), pursuant to which the Company registered an additional 75,000
shares of the Company’s common stock issuable under the ESP and an
additional $20,000,000 of unsecured obligations to pay deferred
compensation in accordance with the ESP;
and
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·
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Registration
Statement on Form S-8 filed on December 17, 2008 (No. 333-156243) (the
“2008 Form S-8”), pursuant to which the Company transferred the
registration of 37,500 shares of the Company’s common stock and $4,500,000
of unsecured obligations to pay deferred compensation from the Company’s
former Executive Savings Plan to the ESP in connection with the merger of
the plans, which became effective on December 17,
2008.
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The
contents of the 2004 Form S-8, the 2006 Form S-8, the 2007 Form S-8, and the
2008 Form S-8 are incorporated herein by reference pursuant to General
Instruction E of Form S-8.
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 ESP 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 2004 Form S-8, the 2006 Form S-8, the 2007 Form
S-8, and the 2008 Form S-8, the following documents previously filed with the
Securities and Exchange Commission (the “SEC”) 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,
2008.
2. Quarterly
Report on Form 10-Q for the quarterly period ended
March 31, 2009.
3. Current
Reports on Form 8-K, as filed on February 4, 2009, February 20, 2009, March
13, 2009, March 27, 2009, April 10, 2009, May 6, 2009 and May 19,
2009.
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 filed on August 17, 2006 and November 21, 2008.
All
documents subsequently filed by the Company 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
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 the Company’s By-Laws contains the following provision 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 also provides 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 bylaws, an agreement, a
resolution of shareholders or directors or otherwise.
The
Company has entered into agreements with each director and officer that 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.
The
Company maintains insurance 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 the Company 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.
The
following opinions and consents are filed with this Registration
Statement.
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4.1
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PNM
Resources, Inc. Executive Savings Plan II as amended and restated
effective January 1, 2009 (incorporated by reference to Exhibit 4.1 to the
Registration Statement on Form S-8 (No. 333-156243) that the Company filed
on December 17, 2008)
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23.1
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Consent
of Deloitte & Touche LLP (filed herewith)
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24.1
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Power
of Attorney (included on the signature page
hereof)
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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 F-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 (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:
(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.
(7) 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 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 of
1933, 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
May 20, 2009.
PNM
RESOURCES, INC.
By: /s/ Jeffry E.
Sterba
Jeffry E.
Sterba
Chairman and Chief Executive Officer
POWER
OF ATTORNEY
KNOW ALL
PERSONS 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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Chairman
and Chief Executive Officer; Director (Principal Executive
Officer)
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May
20, 2009
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Jeffry E.
Sterba
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Executive
Vice President and Chief Financial Officer (Principal
Financial Officer)
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May
20, 2009
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Charles
N. Eldred
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/s/ Thomas G. Sategna |
Vice
President and Corporate Controller (Principal Accounting
Officer) |
May
20, 2009
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Thomas
G. Sategna |
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/s/ Adelmo E.
Archuleta
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Director
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May
20, 2009
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Signature
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Title
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Date
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/s/ Julie A. Dobson
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Director
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May
20, 2009
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Julie A. Dobson |
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/s/ Robert R. Nordhaus |
Director |
May 20,
2009
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Robert R. Nordhaus |
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/s/
Manuel T. Pachero |
Director |
May 20,
2009
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Manuel T. Pacheco |
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/s/ Robert M.
Price
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Director |
May 20,
2009
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Robert M. Price |
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/s/ Bonnie S. Reitz |
Director |
May 20,
2009
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Bonnie S. Reitz |
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/s/
Donald K. Schwanz |
Director |
May 20,
2009
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Donald K. Schwanz |
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/s/ Joan B.
Woodard
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Director |
May 20,
2009
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Joan
B. Woodard |
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THE
PLAN. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other person who administers the employee benefit plan) have 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 May 20, 2009.
PNM
RESOURCES, INC. EXECUTIVE SAVINGS PLAN II
By: /s/ Bonnie S.
Reitz
Bonnie S.
Reitz
Chairperson of the Board Governance and Human Resources
Committee
EXHIBIT
INDEX
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4.1
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PNM
Resources, Inc. Executive Savings Plan II as amended and restated
effective January 1, 2009 (incorporated by reference to Exhibit 4.1 to the
Registration Statement on Form S-8 (No. 333-156243) that the Company filed
on December 17, 2008)
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23.1
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Consent
of Deloitte & Touche LLP (filed herewith)
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24.1
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Power
of Attorney (included on the signature page
hereof)
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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.