AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 2003
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PNM RESOURCES, INC.
(Exact name of registrant as specified in its charter)
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New Mexico 85-0468296
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) 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)
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JOHN R. LOYACK
Senior Vice President and Chief Financial Officer
PNM RESOURCES, INC.
Alvarado Square
Albuquerque, New Mexico 87158
Tel: (505) 241-2700
Fax: (505) 241-2368
E-mail: jloyack@pnm.com
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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It is respectfully requested that the Commission send copies of
all orders, notices and communications to:
CHARLES L. MOORE, ESQ.
KELEHER & MCLEOD, P.A.
414 Silver Avenue, S.W.
Albuquerque, New Mexico 87103
Tel: (505) 346-4646
Fax: (505) 346-1345
E-mail: clm@keleher-law.com
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Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective as determined
by market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are to be
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. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]______
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]_______
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]_______
CALCULATION OF REGISTRATION FEE
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Title of each class of securities Amount to Proposed maximum offering Proposed maximum aggregate Amount of
to be registered be registered(a) price per share (b) offering price (b) registration fee
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Common stock, no par value 1,121,495 $26.75 $30,000,000 $2,427
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(a) Pursuant to Rule 416 under the Securities Act of 1933 (the "Securities
Act"), to the extent additional shares of the registrant's common stock
may be issued or issuable as a result of a stock split or other
distribution declared at any time by the Board of Directors of the
registrant while this registration statement is in effect, this
registration statement is hereby deemed to cover all of such additional
shares of common stock.
(b) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act, based on the average of
the high and low sale prices of the registrant's common stock as
reported on the New York Stock Exchange on June 11, 2003.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 12, 2003
PROSPECTUS
PNM RESOURCES, INC.
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2700
1,121,495 SHARES OF COMMON STOCK
This prospectus relates to 1,121,495 shares (which we refer to as the
"contributed shares") of our common stock, no par value, held in a segregated
account in the PNM Resources, Inc. Employees' Retirement Plan Trust (which we
refer to as the "trust") created under the PNM Resources, Inc. Employees'
Retirement Plan (which we refer to as the "plan"). The contributed shares may be
offered for sale from time to time by Mellon Bank, N.A. or its successor, as
duly appointed trustee for the trust (which we refer to as the "trustee")
pursuant to proper directions from U.S. Trust Company, National Association or
its successor (which we refer to as the "investment manager"), in its capacity
as duly appointed and acting investment manager for the segregated account of
the trust. We refer to the trustee, the trust and the investment manager
collectively as the "selling stockholder". We are registering the contributed
shares to provide the selling stockholder with freely tradable securities
pursuant to a Registration Rights Agreement, dated as of June 11, 2003 (which we
refer to as the "registration rights agreement"), between us and the investment
manager. We will not receive any of the proceeds from the sale of the
contributed shares by the selling stockholder. We are generally required to bear
the expenses of the registration of the contributed shares offered hereby,
including, without limitation, registration fees under federal and state
securities laws, and legal and accounting fees. Any underwriting discounts,
brokerage fees and commissions will be the responsibility of the selling
stockholder. See "Selling Stockholder."
The selling stockholder may sell all or a portion of the contributed
shares from time to time on the New York Stock Exchange, in negotiated
transactions or otherwise, and at prices which will be determined by the
prevailing market price for the contributed shares or in negotiated
transactions.
Our common stock is listed on the New York Stock Exchange under the
symbol "PNM." On June 11, 2003, the last reported sale price per share of our
common stock on the New York Stock Exchange was $26.81.
YOU SHOULD READ THE ENTIRE PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT CAREFULLY BEFORE YOU MAKE YOUR INVESTMENT DECISION.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is _________, 2003.
TABLE OF CONTENTS
About This Prospectus........................................................... 1
PNM Resources, Inc.............................................................. 1
Where You Can Find More Information............................................. 1
Incorporation By Reference...................................................... 2
Description of Capital Stock.................................................... 2
Special Note Regarding Forward-Looking Statements............................... 5
Use Of Proceeds................................................................. 5
Selling Stockholder............................................................. 5
Plan Of Distribution............................................................ 6
Experts......................................................................... 7
Validity........................................................................ 8
(ii)
ABOUT THIS PROSPECTUS
You should rely only on the information contained or incorporated by
reference in this prospectus and any applicable prospectus supplement. We have
not authorized any other person to provide you with different information. No
offer to sell or solicitation of an offer to buy these securities will be made
in any jurisdiction where the offer, sale or solicitation is not permitted. You
should assume that the information appearing in this prospectus is accurate only
as of the date on the cover page.
In this prospectus, references to "Company," "we," "us," "our" and "PNM
Resources" refer to PNM Resources, Inc. and do not include any of its
subsidiaries in the context of the issuer of securities. In other contexts,
references to "Company," "we," "us," "our" and "PNM Resources" may also include
subsidiaries of PNM Resources. The phrase "this prospectus" refers to this
prospectus and any applicable prospectus supplement, unless the context
otherwise requires.
PNM RESOURCES, INC.
We are an investor-owned holding company of energy and energy-related
companies and were incorporated in the State of New Mexico on March 3, 2000. Our
principal subsidiary, Public Service Company of New Mexico, or PNM, was
incorporated in the State of New Mexico on May 9, 1917. PNM is a public utility
primarily engaged in the generation, transmission, distribution, sale and
marketing of electricity and in the transmission, distribution and sale of
natural gas within the State of New Mexico. The business of PNM constitutes
substantially all of the business of PNM Resources, Inc. and its subsidiaries.
Our principal business segments are utility operations, wholesale
operations and corporate and other. Utility operations include electric services
and gas services. Electric services consist of the distribution, transmission
and generation of electricity for retail electric customers in New Mexico. Gas
services include the transportation and distribution of natural gas to end
users. Our wholesale operations consist of the generation and sale of
electricity into the wholesale market based on three product lines which are
long-term contracts, forward sales and short-term sales.
Upon the completion of a one-for-one share exchange between us and PNM on
December 31, 2001, we became the parent company of PNM and began trading on the
New York Stock Exchange under the "PNM" symbol. Prior to the share exchange, we
had existed as a subsidiary of PNM.
Our executive offices are located at Alvarado Square, Albuquerque, New
Mexico 87158, and our telephone number is (505) 241-2700.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports, proxy statements and other
information with the Securities and Exchange Commission (the "SEC"). These SEC
filings are available over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the SEC's
Public Reference Room at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for more information on the Public
Reference Room and their copy charges. You may also inspect our SEC reports and
other information at the New York Stock Exchange, 20 Broad Street, New York, New
York 10005. We also maintain a website at www.pnm.com. Information contained on
our website does not constitute part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus the
information we file separately with it, which means we may disclose important
information by referring you to those other documents. The information we
incorporate by reference is considered to be part of this prospectus. Any future
filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, or the Exchange Act, until all of
the contributed shares have been sold by the selling stockholders, will
automatically update, replace and supersede the information contained in this
prospectus and in previously filed documents incorporated by reference in this
prospectus. This prospectus incorporates by reference those future filings as
well as the following documents that we have filed previously with the SEC:
- Annual Report on Form 10-K for the fiscal year ended December 31, 2002, as
updated by financial information included in the Current Report on Form 8-K
filed June 12, 2003.
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
- Current Reports on Form 8-K dated January 3, 2003 (two), January 31, 2003,
April 10, 2003, April 22, 2003, May 29, 2003 and June 12, 2003.
We encourage you to read our periodic and current reports. We think these
reports provide additional information about our company which prudent investors
find important. You may request a copy of these filings at no cost by writing or
telephoning us at the following address:
PNM Resources, Inc.
Investor Relations
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2477
DESCRIPTION OF CAPITAL STOCK
AUTHORIZED CAPITAL STOCK
The following descriptions of our capital stock and the relevant provisions
of our Restated Articles of Incorporation and By-Laws are summaries and are
qualified by reference to our Restated Articles of Incorporation and By-Laws
which have been previously filed with the SEC and are exhibits to the
registration statement of which this prospectus is a part. 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 10,000,000 shares of preferred
stock without par value, issuable in series from time to time, and 120,000,000
shares of common stock, without par value. 39,117,799 shares of our common stock
were outstanding as of May 31, 2003, and following the issuance of the
contributed shares to the trust on June 11, 2003, 40,239,294 shares of our
common stock are outstanding as of June 11, 2003. No shares of PNM Resources,
Inc. preferred stock are currently outstanding.
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COMMON STOCK
Dividend Rights
After giving effect to any prior rights of our preferred stock, if any
should become outstanding, we will pay dividends on our common stock as
determined by our board of directors out of legally available funds.
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 Restated 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.
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.
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 the board of directors in its sole
judgment.
Listing
Our common stock is listed on the New York Stock Exchange.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is Mellon Investor
Services, South Hackensack, New Jersey.
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PREFERRED STOCK
Our board of directors is authorized by resolution to provide from time to
time for the issuance of shares of preferred stock in series and to fix, from
time to time before issuance, the designation, preferences, privileges and
voting powers of the shares of each series of preferred stock and its
restrictions or qualifications, limited to the following:
- the serial designation, authorized number of shares and the stated value;
- the dividend rate, if any, the date or dates on which the dividends will be
payable, and the extent to which the dividends may be cumulative;
- the price or prices at which shares may be redeemed, and any terms,
conditions and limitations upon any redemption;
- the amount or amounts to be received by the holders in the event of our
dissolution, liquidation, or winding up;
- any sinking find provisions for redemption or purchase of shares of any
series;
- the terms and conditions, if any, on which shares may be converted into, or
exchanged for, shares of our other capital stock, or of other series of our
preferred stock;
- the voting rights, if any, for the shares of each series, limited to
circumstances when:
- we fail to pay dividends on the applicable series; and
- when a proposed amendment to our Restated Articles of
Incorporation would have an adverse impact on the rights and
privileges of our preferred stockholders.
The holders of our preferred stock do not have a preemptive right to
acquire 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 of directors.
The effects of the issuance of our preferred stock on the holders of our
common stock could include, among other things, (i) reduction of the amount
otherwise available for payments of dividends on common stock if dividends are
payable on the series of preferred stock, (ii) restrictions on dividends on
common stock if dividends on the series of preferred stock are in arrears, (iii)
dilution of the voting power of common stock if the series of preferred stock
has voting rights, including a possible "veto" power if the series of preferred
stock has class voting rights, (iv) dilution of the equity interest of holders
of common stock if the series of preferred stock is convertible, and is
converted, into common stock and (v) restrictions on the rights of holders of
common stock to share in our assets upon liquidation until satisfaction of any
liquidation preference granted to the holders of the series of preferred stock.
CERTAIN ANTI-TAKEOVER MATTERS
Our Restated 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:
- authorization for our board of directors 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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- our board of directors is classified into three classes, with the directors
being elected for staggered terms;
- advance notice procedures with respect to any proposal other than those
adopted or recommended by our board of directors; and
- provisions specifying that only a majority of the board of directors, the
chairman of the board of directors, the president or holders of not less
than one-tenth of all our shares entitled to vote may call a special
meetings of stockholders.
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. Certain acquisitions by any person
of our outstanding voting securities would also require approval of the SEC
under the Public Utility Holding Company Act of 1935.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statements made in this prospectus and other documents we file with the
SEC that relate to future events or our expectations, projections, estimates,
intentions, goals, targets and strategies are made pursuant to the Private
Securities Litigation Reform Act of 1995. These forward-looking statements are
based upon current expectations and estimates and we assume no obligation to
update this information. Because actual results may differ materially from those
expressed or implied by the forward-looking statements, we caution investors not
to place undue reliance on these statements. Factors that could cause actual
results to differ, and that will affect our future financial condition, cash
flow and operating results include interest rates, weather, fuel costs, changes
in supply and demand in the market for electric power, wholesale power prices,
market liquidity, the competitive environment in the electric and natural gas
industries, the performance of generating units and transmission system, state
and federal regulatory and legislative decisions and actions, the outcome of
legal proceedings and the performance of state, regional and national economies.
For a detailed discussion of the important factors affecting PNM Resources and
that could cause actual results to differ from those expressed or implied by our
forward-looking statements, please see "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in our current and future Annual
Reports on Form 10-K and Quarterly Reports on Form 10-Q, and also our current
and future Current Reports on Form 8-K, filed with the SEC.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the
contributed shares offered by this prospectus. The selling stockholder will
receive all of the proceeds.
SELLING STOCKHOLDER
On June 11, 2003, we contributed to the trust 1,121,495 shares of our
common stock. We did not receive any cash proceeds from the contribution of the
contributed shares.
The investment manager serves in its sole capacity as investment
manager pursuant to an investment management agreement with the Corporate
Investment Committee of PNM Resources, Inc. that is a named fiduciary of the
trust, and PNM Resources. In accordance with the terms of the investment
management agreement, the investment manager is responsible for the management
and disposition of the contributed shares and is a fiduciary of the trust. The
investment manager, in exercising its fiduciary duty, will decide whether or
not, and under what terms, it will sell the contributed shares offered hereby.
Both the trustee and the investment manager receive customary compensation for
serving
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as trustee and investment manager, respectively. The Company retains the
discretion to terminate or replace the trustee and investment manager from
time-to-time.
At the date of this prospectus, the trust beneficially owned 1,121,495
shares of our common stock, representing approximately 2.8% of our outstanding
shares of common stock as of June 11, 2003. The selling stockholder may sell up
to 1,121,495 shares of our common stock pursuant to this offering, and assuming
that all such contributed shares are sold, the trust will beneficially own none
of the outstanding shares of our common stock after this offering, unless the
trust acquires additional shares of our common stock in the open market or
otherwise, or unless we contribute additional shares to the trust, after the
date of this prospectus. The selling stockholder may sell all, some or none of
the contributed shares. Accordingly, we cannot provide you with an estimate of
the number of shares of our common stock that the selling stockholder will hold
in the future.
PLAN OF DISTRIBUTION
The selling stockholder may offer the contributed shares from time to time,
depending on market conditions and other factors, in one or more transactions on
the New York Stock Exchange or any other national securities exchange or
automated interdealer quotation system on which shares of our common stock are
then listed, through negotiated transactions or otherwise. The contributed
shares will be sold at prices and on terms then prevailing, at prices related to
the then current market price or at negotiated prices. Subject to the terms of
the registration rights agreement, the contributed shares may be offered in any
manner permitted by law, including through underwriters, brokers, dealers or
agents, and directly to one or more purchasers. Sales of the contributed shares
may involve:
- sales to underwriters who will acquire contributed shares for their own
account and resell them in one or more transactions at fixed prices or at
varying prices determined at the time of sale;
- block transactions in which the broker or dealer engaged will attempt to
sell contributed shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction;
- purchases by a broker or dealer as principal and resale by the broker or
dealer for its account; or
- ordinary brokerage transactions and transactions in which a broker solicits
purchasers.
The selling stockholder and/or purchasers of the contributed shares may pay
brokers and dealers for selling contributed shares. These payments may be in the
form of underwriting discounts, concessions or commissions. The selling
stockholder and any broker dealer who sells or assists the selling stockholder
in selling contributed shares may be deemed an underwriter within the meaning of
the Securities Act. If they are deemed to be underwriters, any brokerage
commissions or discounts may be deemed to be underwriting discounts and
commissions under the Securities Act. We will file, if required, a prospectus
supplement when the selling stockholder notifies us that it has entered into an
arrangement with an underwriter, broker or dealer for the sale of contributed
shares. The prospectus supplement will disclose certain material information,
including:
- the number of contributed shares being offered;
- the terms of the offering;
- any discounts, commissions or other compensation paid to underwriters,
brokers or dealers;
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- the public offering price;
- any discounts, commissions or concessions allowed or reallowed or paid by
any underwriters to dealers; and
- other material terms of the offering.
As of the date of this prospectus, there are no selling arrangements between the
selling stockholder and any underwriter, broker or dealer. The selling
stockholder may also sell contributed shares in reliance upon Rule 144 of the
Securities Act, provided it meets the criteria and conforms to the requirements
of Rule 144, rather than under this prospectus.
We will not receive any of the proceeds from the sale of contributed
shares by the selling stockholder. We will bear the costs of registering the
contributed shares under the Securities Act, including the registration fee
under the Securities Act, accounting fees, printing fees, fees and disbursements
of our counsel and certain fees and disbursements of counsel to the selling
stockholder. The selling stockholder will be responsible for underwriting
discounts, brokerage fees and commissions, if any, incurred in connection with
the sale of contributed shares.
Under the terms of the registration rights agreement, PNM Resources and
the selling stockholder have agreed to indemnify each other and certain other
related parties for certain liabilities in connection with the registration of
the contributed shares.
All of the contributed shares are subject to the restrictions on
transfer, and other terms, set forth in the registration rights agreement. Under
the registration rights agreement, the selling stockholder may only transfer
contributed shares in the foregoing types of transactions under certain
circumstances. We have agreed to maintain the effectiveness of the registration
statement of which this prospectus is a part until the earlier of (i) the date
on which all contributed shares are sold, and (ii) June 11, 2005.
The plan is an employee pension benefit plan as defined in the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). Prohibited
transactions under Title I of ERISA and Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), could arise if, absent an available
exemption, a person or entity which is a "party in interest," as defined under
ERISA, or a "disqualified person," as defined under the Code, were to purchase
any of the contributed shares being offered by the selling stockholder. Any such
potential purchaser should consult with counsel to determine whether an
exemption is available with respect to any such purchase.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference from PNM Resources' Current Report on Form 8-K dated June 12, 2003
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their reports, which are incorporated herein by reference (which reports express
an unqualified opinion and include explanatory paragraphs referring to the
realignment of segments for financial reporting purposes and its adoption of
EITF 02-3, Issues Involved in Accounting for Derivative Contracts Held for
Trading Purposes and Contracts Involved in Energy Trading and Risk Management
Activities).
The financial statement schedules of the Company incorporated by reference
in this prospectus from the Company's Annual Report on Form 10-K (as updated by
the Company's Current Report on Form 8-K
-7-
dated June 12, 2003) have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report which is incorporated herein by reference.
The aforementioned reports have been so incorporated and included in
reliance upon such firm given their authority as experts in accounting and
auditing.
With respect to the unaudited interim financial information for the periods
ended March 31, 2003 and 2002, which is incorporated herein by reference,
Deloitte & Touche LLP have applied limited procedures in accordance with
professional standards for a review of such information. However, as stated in
their reports included in the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2003 and incorporated by reference herein, they did not
audit and they do not express an opinion on that interim financial information
(which review report includes an explanatory paragraph related to the Company's
adoption of Statement of Financial Accounting Standards No. 143, Accounting for
Asset Retirement Obligations). Accordingly, the degree of reliance on their
reports on such information should be restricted in light of the limited nature
of the review procedures applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
reports on the unaudited interim financial information because those reports are
not "reports" or a "part" of the registration statement prepared or certified by
an accountant within the meaning of Sections 7 and 11 of the Securities Act.
VALIDITY
The law firm of Keleher & McLeod, P.A., Albuquerque, New Mexico, has
delivered its opinion on behalf of PNM Resources that the shares in this
offering have been validly issued and are fully paid and non assessable.
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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 estimated expenses payable by PNM Resources,
Inc. in connection with the sale and distribution of the common stock registered
hereby:
SEC Filing Fees................................................................. $ 2,427
Printing and Engraving Expenses*................................................ $ 5,000
Accounting Fees and Expenses*................................................... $15,000
Legal Fees and Expenses*........................................................ $50,000
New York Stock Exchange Additional Listing Fee*................................. $ 6,350
Miscellaneous*.................................................................. $ 5,000
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Total Expenses*.......................................................... $83,777
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* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 6 of Article II of PNM Resources, Inc.'s By-Laws contains the
following provisions with respect to indemnification of directors and officers:
Each person serving as a director or an officer of the Corporation, or,
at the request of the Corporation, as a director or an officer of any
other company in which the Corporation has a financial interest and
regardless of whether or not the person is then in office, and the
heirs, executors, administrators and personal representatives of the
person, shall be indemnified by the Corporation to the full extent of
the authority of the Corporation to so indemnify as authorized by New
Mexico law.
Section 53-11-4.1 of the Business Corporation Act of the State of New
Mexico provides that a corporation shall have power to indemnify any person made
(or threatened to be made) a party to any proceeding (whether threatened,
pending or completed) by reason of the fact that the person is or was a director
(or, while a director, is or was serving in any of certain other capacities) if:
(1) the person acted in good faith; (2) the person reasonably believed: (a) in
the case of conduct in the person's official capacity with the corporation, that
the person's conduct was in its best interests; and (b) in all other cases, that
the person's conduct was at least not opposed to its best interests; and (3) in
the case of any criminal proceeding, the person had no reasonable cause to
believe the person's conduct was unlawful. Indemnification may be made against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by the person in connection with the proceeding, but may be limited or
unavailable with respect to certain proceedings. In some instances,
indemnification of a director may be mandatory or, upon the application of a
director, may be ordered by a court. Reasonable expenses incurred by a director
may, under certain circumstances, be paid or reimbursed in advance of a final
disposition of a proceeding. Unless limited by its articles of incorporation, a
corporation may (or, as the case may be, shall) indemnify and advance expenses
to an officer of the corporation to the same extent as to a director under
Section 53-11-4.1. Also, unless limited by its articles of incorporation, a
corporation has (1) the power to indemnify
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and to advance expenses to an employee or agent of the corporation to the same
extent that it may indemnify and advance expenses to directors under the statute
and (2) additional power to indemnify and to advance reasonable expenses to an
officer, employee or agent who is not a director to such further extent,
consistent with law, as may be provided by its articles of incorporation,
bylaws, general or specific action of its Board of Directors, or contract.
Section 53-11-4.1 was amended in 1987 to provide that the
indemnification authorized thereunder shall not be deemed exclusive of any
rights to which those seeking indemnification may be entitled under the articles
of incorporation, the by-laws, an agreement, a resolution of shareholders or
directors or otherwise. PNM Resources has entered into agreements with each
director and officer which provide for indemnification of directors and officers
to the fullest extent permitted by law including advancement of litigation
expenses where appropriate. The agreements provide for the appointment of a
reviewing party by the Board of Directors to make a determination whether
claimed indemnification is permitted under applicable law.
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising on
the part of PNM Resources out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits.
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ITEM 16. EXHIBITS.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1* Restated Articles of Incorporation of PNM Resources, Inc. dated February 22, 2002 (Exhibit 3.1
to PNM Resources, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 2001
in File No. 333-32170).
4.2* By-Laws of PNM Resources, Inc. with all amendments to and including February 18, 2003 (Exhibit
3.2 to PNM Resources Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31,
2002 in File No. 333-32170).
4.3 Registration Rights Agreement, dated as of June 11, 2003, between PNM Resources, Inc. and U.S.
Trust Company, National Association
5 Opinion of Keleher & McLeod, P.A., counsel for PNM Resources, Inc.
15 Letters regarding unaudited interim financial information.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Keleher & McLeod, P.A. (included in Exhibit 5).
24 Power of Attorney is contained on the signature page of this registration statement.
------------------
*Incorporated herein by reference as indicated.
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;
(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 SEC 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;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the SEC 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.
(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 purposes of determining any liability under the
Securities Act of 1933, each filing of each registrant's
Annual Report pursuant to Section 13(a) or 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 herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(b) 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 provisions described under
Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the SEC 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 of 1933, and will be governed
by the final adjudication of such issue.
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SIGNATURES
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-3 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 June 12, 2003.
PNM RESOURCES, INC.
By: /s/ Jeffry E. Sterba
------------------------------------
Jeffry E. Sterba
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints Jeffry E. Sterba, John R. Loyack,
and Robin Lumney, and each of them, his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any
or all amendments to this registration statement, including post-effective
amendments, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and conforming all that said
attorneys-in-fact and agents, and each of them, or the substitute or substitutes
of any or all of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Jeffry E. Sterba Chairman, President and Chief June 12, 2003
------------------------------------ Executive Officer; Director
Jeffry E. Sterba (Principal Executive Officer)
/s/ John R. Loyack Senior Vice President and Chief June 12, 2003
------------------------------------ Financial Officer
John R. Loyack (Principal Financial Officer)
/s/ Robin Lumney Vice President, Controller and June 12, 2003
------------------------------------ Chief Accounting Officer
Robin Lumney (Principal Accounting Officer)
/s/ Robert G. Armstrong
-------------------------------------- Director June 12, 2003
Robert G. Armstrong
/s/ R. Martin Chavez
-------------------------------------- Director June 12, 2003
R. Martin Chavez
/s/ Julie A. Dobson
-------------------------------------- Director June 12, 2003
Julie A. Dobson
/s/ Joyce A. Godwin
-------------------------------------- Director June 12, 2003
Joyce A. Godwin
/s/ Manuel T. Pacheco
-------------------------------------- Director June 12, 2003
Manuel T. Pacheco
/s/ Theodore F. Patlovich
-------------------------------------- Director June 12, 2003
Theodore F. Patlovich
/s/ Robert M. Price
-------------------------------------- Director June 12, 2003
Robert M. Price
/s/ Bonnie S. Reitz
-------------------------------------- Director June 12, 2003
Bonnie S. Reitz
EXHIBIT INDEX
Exhibit
Number Description of Exhibits
----- -----------------------
4.3 Registration Rights Agreement.
5 Opinion of Keleher & McLeod, P.A., counsel for PNM Resources, Inc.
15 Letters regarding unaudited interim financial information.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Keleher & McLeod, P.A. (included in Exhibit 5).
24 Power of Attorney is contained on the signature page of this registration statement.