As filed with the Securities and Exchange Commission on December 31, 2001
Registration No. 333-03303
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
PNM RESOURCES, INC.
(Formerly known as Manzano Corporation)
(Exact name of registrant as specified in its charter)
NEW MEXICO 85-0468296
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) Identification No.)
ALVARADO SQUARE
ALBUQUERQUE, NEW MEXICO 87158
(Address of principal executive offices, including zip code)
THIRD RESTATED AND AMENDED
PNM RESOURCES, INC.
PERFORMANCE STOCK PLAN
(Full title of the plan)
M.H. MAERKI
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
PNM RESOURCES, INC.
ALVARADO SQUARE
ALBUQUERQUE, NEW MEXICO 87158
(505) 241-2700
(Name, address and telephone number, including area code, of agent for service)
--------------
The commission is requested to mail signed copies of all orders,
notices and communications to:
C. L. MOORE
KELEHER & MCLEOD, P.A.
414 SILVER AVENUE, S. W.
ALBUQUERQUE, NEW MEXICO 87103
--------------
This Post-Effective Amendment No. 1 to the Registration Statement (Registration
No. 333-03303) shall become effective upon filing in accordance with Rule 464
under the Securities Act of 1933.
===============================================================================
ADOPTION OF PREDECESSOR ISSUER'S REGISTRATION STATEMENT
This post-effective amendment is being filed pursuant to Rule 414 under the
Securities Act of 1933 in connection with the completion of the formation by
Public Service Company of New Mexico, a New Mexico corporation ("PNM"), of a new
holding company above PNM pursuant to the Agreement and Plan of Share Exchange
(the "Plan of Exchange") between PNM and PNM Resources, Inc., a New Mexico
corporation, formerly known as Manzano Corporation ("PNM Resources"). The Plan
of Exchange provides for, among other things, a share exchange pursuant to which
all shares of PNM common stock were exchanged on a one-for-one basis for shares
of common stock of PNM Resources (the "Share Exchange"). The shareholders of PNM
approved the Share Exchange on June 6, 2000.
As a result of the Share Exchange, completed on December 31, 2001 PNM
became a wholly owned subsidiary of PNM Resources. The Third Restated and
Amended Public Service Company of New Mexico Performance Stock Plan (the
"Original Plan") was assumed by PNM Resources and is now known as the Third
Restated and Amended PNM Resources, Inc. Performance Stock Plan (as so replaced
and assumed, the "Plan"). The shares of PNM common stock previously issued upon
the exercise of options granted under the Original Plan were converted into an
equivalent number of shares of PNM Resources common stock. In addition, each
option previously issued or outstanding under the Original Plan to purchase
shares of PNM common stock was converted into an option to purchase an
equivalent number of shares of PNM Resources common stock upon the same terms
and conditions. In assuming responsibility for the Original Plan, PNM Resources
will continue to provide the same rights and benefits provided by PNM.
In accordance with Rule 414 under the Securities Act of 1933, PNM
Resources, as the successor issuer to PNM, hereby expressly adopts this
registration statement No. 333-03303 on Form S-8 for the Plan as its own for all
purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934,
effective upon the effectiveness of the Share Exchange.
The applicable registration fees were paid at the time of the original
filing of this registration statement by PNM.
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 participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933. 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 of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Commission by
PNM and PNM Resources are hereby incorporated by reference in this registration
statement:
1. PNM's Annual Report on Form 10-K for the year ended
December 31, 2000, as amended.
2. PNM's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001.
3. PNM's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2001, as amended.
4. PNM's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2001.
5. PNM's Current Reports on Form 8-K dated January 18, 2001,
January 23, 2001, January 25, 2001 (two), February 26, 2001, February 28, 2001,
March 1, 2001, March 20, 2001, March 27, 2001, April 11, 2001 (two), April 12,
2001, April 16, 2001, April 18, 2001 (two), May, 2, 2001 (two), May 18, 2001,
May 25, 2001, June 1, 2001, June 14, 2001, July 3, 2001 (two), July 13, 2001,
July 16, 2001, July 18, 2001 (three), July 24, 2001, July 30, 2001, August 9,
2001, August 16, 2001, August 17, 2001, September 13, 2001, September 18, 2001,
September 19, 2001, October 11, 2001, October 16, 2001, October 23, 2001,
October 24, 2001, October 25, 2001, November 2, 2001, November 15, 2001,
November 16, 2001, November 30, 2001, December 12, 2001, December 14, 2001
(two), December 20, 2001, and December 27, 2001.
6. PNM Resources's Current Report on Form 8-K filed with the
Commission on December 31, 2001 which includes the description of the common
stock of PNM Resources, no par value per share, and any amendment or report
filed for the purpose of updating such description.
7. All other reports filed by PNM or PNM Resources pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act on or after December 31,
2000.
All documents subsequently filed by PNM Resources pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold will be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document 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
other subsequently filed document which is also incorporated or 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 PNM Resources'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 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.
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
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;
(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 (1)(i) and (1)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and 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
Commission by the registrant pursuant to Section 13 or 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 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 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 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, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Albuquerque, State of New Mexico, on December
31, 2001.
PNM RESOURCES, INC.
By: /s/ M. H. Maerki
------------------------------------------
M. H. Maerki
Senior Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints J.E Sterba, M.H. Maerki and J.R.
Loyack, 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 their
capacities and on the dates indicated.
Signature Capacity Date
--------- -------- ----
/s/ J. E. Sterba Chairman, President and Chief
---------------------------------- Executive Officer; Director December 31, 2001
J. E. Sterba (Principal Executive Officer)
/s/ M. H. Maerki Senior Vice President and Chief
---------------------------------- Financial Officer December 31, 2001
M. H. Maerki (Principal Financial Officer)
/s/ J. R. Loyack Vice President, Corporate Controller
---------------------------------- and Chief Accounting Officer December 31, 2001
J. R. Loyack (Principal Accounting Officer)
/s/ R. G. Armstrong
---------------------------------- Director December 31, 2001
R. G. Armstrong
---------------------------------- Director
J. A. Godwin
Signature Capacity Date
--------- -------- ----
/s/ B. F. Montoya
---------------------------------- Director December 31, 2001
B. F. Montoya
/s/ T. F. Patlovich
---------------------------------- Director December 31, 2001
T. F. Patlovich
---------------------------------- Director
R. M. Price
/s/ P. F. Roth
---------------------------------- Director December 31, 2001
P. F. Roth
EXHIBIT INDEX
Exhibit no. Description
----------- -----------
4.1.1 Articles of Incorporation of PNM Resources, Inc. (incorporated
by reference to Exhibit B of the registration statement on
Form S-4, as amended, of PNM Resources, Inc., File No.
333-32170, filed on April 18, 2000).
4.1.2 Articles of Amendment to the Articles of Incorporation of PNM
Resources, Inc., dated April 10, 2001 (incorporated by
reference to Exhibit 4.1.2 of Post-Effective Amendment No. 1
to the registration statement on Form S-3 of PNM Resources,
Inc., File No. 333-10993, filed on October 4, 2001).
4.1.3 Articles of Amendment to the Articles of Incorporation of PNM
Resources, Inc., dated July 12, 2001 (incorporated by
reference to Exhibit 4.1.3 of Post-Effective Amendment No. 1
to the registration statement on Form S-3 of PNM Resources,
Inc., File No. 333-10993, filed on October 4, 2001).
4.2 Bylaws of PNM Resources, Inc. as amended through April 17,
2001 (incorporated by reference to Exhibit 4.2 of the
Post-Effective Amendment No. 1 to the registration statement
on Form S-3 of PNM Resources, Inc., File No. 333-10993, filed
on October 4, 2001).
4.3.1 Third Restated and Amended Public Service Company of New
Mexico Performance Stock Plan (incorporated by reference to
Exhibit 10.74 to Quarterly Report on Form 10-Q of Public
Service Company of New Mexico for the quarter ended March 31,
1998).
4.3.2 First Amendment to the Third Restated and Amended Public
Service Company of New Mexico Performance Stock Plan
(incorporated by reference to Exhibit 10.74.1 to Quarterly
Report on Form 10-Q of Public Service Company of New Mexico
for the quarter ended March 31, 1998).
4.3.3 Second Amendment to the Third Restated and Amended Public
Service Company of New Mexico Performance Stock Plan
(incorporated by reference to Exhibit 10.74.2 to Annual Report
on Form 10-K of Public Service Company of New Mexico for the
fiscal year 2000).
4.3.4 Third Amendment to the Third Restated and Amended Public
Service Company of New Mexico Performance Stock Plan
(incorporated by reference to Exhibit 10.74.3 to Annual Report
on Form 10-K of Public Service Company of New Mexico for the
fiscal year 2000).
4.3.5 Fourth Amendment to the Third Restated and Amended Public
Service Company of New Mexico Performance Stock Plan.
15 Letter regarding Unaudited Interim Financial Information.
23 Consent of Arthur Andersen LLP.
24 Power of Attorney (See signatures page in Part II).
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.