POSASR
As filed with the Securities and Exchange Commission on November 3, 2008
Registration No. 333-150101
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
POST-EFFECTIVE AMENDMENT NO. 1
to
FORM S-3
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
(State or other jurisdiction of
incorporation or organization)
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85-0468296
(I.R.S. Employer
Identification Number) |
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2700
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Patrick T. Ortiz, Esq.
Senior Vice President, General Counsel and 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)
Copies
to:
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Charles L. Moore, Esq.
Associate General Counsel
PNM Resources, Inc.
Alvarado Square
Albuquerque, New Mexico 87158
Tel. 505-241-4935
Fax. 505-241-2393
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Jill M. Webb, Esq.
Troutman Sanders LLP
1001 Haxall Point
Richmond, Virginia 23219
Tel. 804-697-1441
Fax. 804-698-5198 |
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are being offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
þ
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):
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| Large accelerated filer
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Accelerated filer o |
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Non-accelerated filer o
(Do not check if a smaller reporting company) |
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Smaller Reporting Company o |
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Amount |
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Maximum |
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Maximum |
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Amount of |
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Title of Each Class of |
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to be |
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Offering Price |
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Aggregate |
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Registration |
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Securities to be Registered |
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Registered |
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Per Unit |
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Offering Price |
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Fee |
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Debt Securities |
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(1) |
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(1) |
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(1 ) |
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(1) |
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An indeterminate aggregate initial offering price and an unspecified amount of securities of the identified class of securities
is being registered as may, from time to time, be offered at indeterminate prices. In accordance with Rules 456(b) and 457(r),
the Registrant is deferring payment of all of the registration fee. |
EXPLANATORY NOTE
This Registration Statement on Form S-3 (registration No. 333-150101) of PNM Resources, Inc.
is being amended to (i) register an additional class of debt securities, (ii) file as exhibits to
the Registration Statement, the base indenture and the supplements thereto pursuant to which the
debt securities will be offered, thereby qualifying the indenture as supplemented under the Trust
Indenture Act of 1939 and (iii) file as exhibits to the Registration Statement the Statement of
Eligibility on Form T-1 for U.S. Bank National Association, the trustee under the indenture as
supplemented pursuant to which the debt securities will be offered, and certain other exhibits. No
changes or additions are being made hereby to the base prospectus that already forms a part of the
Registration Statement, and accordingly, such base prospectus is being omitted from this filing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable in connection with the
distribution of the securities being registered hereby. All amounts are estimated.
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Amount to Be |
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Paid Per |
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Offering* |
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SEC registration fee |
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$ |
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Printing fees |
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5,000 |
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Accounting fees and expenses |
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15,000 |
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Legal fees and expenses |
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100,000 |
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Trustee’s fees and expenses |
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10,000 |
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Rating agency fees |
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50,000 |
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Listing fees |
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*** |
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Miscellaneous |
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5,525 |
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Total |
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185,525 |
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Because an indeterminate amount of securities is covered by this registration statement, the
expenses in connection with the issuance and distribution of the securities are not currently
determinable. The amounts shown are estimates of expenses for a single offering of securities
under the registration statement, but do not limit the amount of securities that may be
offered. |
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In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant is
deferring payment of the SEC registration fee until the time of any particular offering of
securities under this registration statement, and such fee is therefore not currently
determinable. |
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Listing fees are based upon the principal amount of securities listed, if any, and are
therefore not currently determinable. |
Item 15. Indemnification of Directors and Officers.
Section 6 of Article II of PNM Resources, Inc.’s Bylaws 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
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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, by-laws, 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. We have 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, Inc. out of its foregoing
indemnification provisions, subject to certain exclusions and to the policy limits.
Item 16. Exhibits and Financial Statement Schedules.
The following exhibits are included herein or incorporated herein by reference:
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Exhibit Description |
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4.3
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Indenture dated as of October 7, 2005, between PNMR and U.S. Bank National Association, as
Trustee (incorporated by reference from Exhibit 4.11 to PNMR’s Quarterly Report on Form 10-Q
for the quarter ended September 30, 2005, File No. 1-32462) |
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4.4
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Supplemental Indenture dated as of October 7, 2005, between PNMR and U.S. Bank National
Association, as Trustee, with Form of Senior Note included as Exhibit A thereto (incorporated
by reference from Exhibit 4.12 to PNMR’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 2005, File No. 1-32462) |
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4.5
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Supplemental Indenture No. 2 dated as of August 4, 2008, between PNMR and U.S. Bank National
Association, as Trustee |
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5.3
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Opinion of Charles L. Moore, Esq. |
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5.4
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Opinion of Troutman Sanders LLP |
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23.4
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm |
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23.5
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Consent of Charles L. Moore, Esq. (included in Exhibit 5.3 to this Registration Statement) |
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23.6
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Consent of Troutman Sanders LLP (included in Exhibit 5.4 to this Registration Statement) |
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25.2
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Statement of Eligibility of U.S. Bank National Association, as Trustee for the Debt Securities |
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or 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;
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(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 the 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 Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20% 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 (i), (ii) and (iii) above do not apply if the
information required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Securities and Exchange 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.
(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) That, for the purpose of determining liability under the Securities Act of 1933 to
any purchaser:
(i) 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
(ii) 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 a
part of the registration statement or made in any such document immediately prior to such
effective date.
(5) 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;
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(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.
(b) 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 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or controlling persons of the registrant pursuant to the
provisions described under Item 15 above, 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 Securities Act of 1933 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this post-effective Amendment No. 1 to the registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Albuquerque, State of New
Mexico, on November 3, 2008.
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PNM RESOURCES, INC.
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By: |
/s/ Jeffry E. Sterba
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Jeffry E. Sterba |
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Chairman and
Chief Executive Officer |
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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 dates indicated.
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/s/ Jeffry E. Sterba
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Chairman and
Chief Executive Officer; Director
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November 3, 2008 |
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(Principal
Executive Officer) |
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Executive Vice President and
Chief Financial Officer
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November 3, 2008 |
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(Principal
Financial Officer) |
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Vice President and Corporate Controller
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November 3, 2008 |
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(Principal
Accounting Officer) |
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Director
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November 3, 2008 |
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Director
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November 3, 2008 |
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Director
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November 3, 2008 |
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Director
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November 3, 2008 |
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Director
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November 3, 2008 |
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Director
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November 3, 2008 |
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Director
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November 3, 2008 |
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Director |
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Director
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November 3, 2008 |
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By: |
/s/ Jeffry E. Sterba
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Jeffry E. Sterba, Attorney-in-fact |
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II-5
INDEX TO EXHIBITS
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| Exhibit |
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Exhibit Description |
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4.3
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Indenture dated as of October 7, 2005, between PNMR and U.S. Bank National Association, as
Trustee (incorporated by reference from Exhibit 4.11 to PNMR’s Quarterly Report on Form 10-Q
for the quarter ended September 30, 2005, File No. 1-32462) |
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4.4
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Supplemental Indenture dated as of October 7, 2005, between PNMR and U.S. Bank National
Association, as Trustee, with Form of Senior Note included as Exhibit A thereto (incorporated
by reference from Exhibit 4.12 to PNMR’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 2005, File No. 1-32462) |
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4.5
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Supplemental Indenture No. 2 dated as of August 4, 2008, between PNMR and U.S. Bank National
Association, as Trustee |
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5.3
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Opinion of Charles L. Moore, Esq. |
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5.4
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Opinion of Troutman Sanders LLP |
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23.4
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm |
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23.5
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Consent of Charles L. Moore, Esq. (included in Exhibit 5.3 to this Registration Statement) |
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23.6
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Consent of Troutman Sanders LLP (included in Exhibit 5.4 to this Registration Statement) |
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25.2
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Statement of Eligibility of U.S. Bank National Association, as Trustee for the Debt Securities |
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