Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
PNM
RESOURCES, INC.
(Exact
name of Registrant as specified in its charter)
|
New
Mexico
|
85-0468296
|
|
(State
or other jurisdiction
|
(I.R.S.
Employer
|
|
incorporation
or organization)
|
Identification
No.)
|
Alvarado
Square
Albuquerque,
New Mexico 87158
(Address,
including zip code, of Registrant’s principal executive offices)
PNM
Resources, Inc.
Executive
Savings Plan II
(Full
title of the Plan)
Patrick
T. Ortiz, Esq.
Senior
Vice President & General Counsel
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)
Copy
to:
Charles
L. Moore, Esq.
Associate
General Counsel
PNM
Resources, Inc.
Alvarado
Square
Albuquerque,
New Mexico 87158
Tel.
505-241-4935
Fax.
505-241-0754
This
Registration Statement shall become effective upon filing in accordance with
Rule 464 under the Securities Act of 1933, as amended.
CALCULATION
OF REGISTRATION FEE
|
Title
of securities to be registered
|
Amount
to be registered
|
Proposed
maximum
offering
price per unit
|
Proposed
maximum aggregate offering price
|
Amount
of registration fee
|
|
PNM
Resources, Inc. Executive Savings Plan II Obligations(1)
|
100%
|
n/a
|
$1,500,000
|
$160.50
|
(1)
The
PNM Resources, Inc. Executive Savings Plan II, as amended to date (“Plan”)
obligations are unsecured obligations of PNM Resources, Inc. to pay deferred
compensation in the future in accordance with the Plan for a select group
of
eligible employees. In addition, pursuant to Rule 416(c) under the Securities
Act, this registration statement covers an indeterminate amount of interests
to
be offered or sold pursuant to the Plan. This Registration Statement registers
an additional $1,500,000 in unsecured obligations of PNM Resources, Inc.
to pay
deferred compensation in the future in accordance with the Plan. $2,500,000
in
Plan obligations and 25,000 shares of common stock of PNM Resources, Inc.
issuable under the Plan were originally registered under PNM's Registration
Statement on Form S-8, File No. 333-121371, filed on December 17, 2004. The
previously paid filing fees associated with the referenced securities under
the
foregoing PNM Resources, Inc.'s Registration Statement are $397.58.
Part
I
Information
Required In Section 10(a) Prospectus
The
document(s) containing the information specified in Part I of Form S-8 will
be
sent or given to employees participating in the PNM Resources, Inc. Executive
Savings Plan II, as amended to date (the “Plan”) as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the “Securities Act”). These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section
10(a)
of the Securities Act.
Part
II
Information
Required In The Registration Statement
Item
3. Incorporation
of Documents by Reference
The
following documents previously filed with the Securities and Exchange Commission
(the “Commission”) by PNM Resources, Inc. (“PNM Resources”) are hereby
incorporated by reference in this Registration Statement:
1. Annual
Report on Form 10-K/A (Amendment No. 2) for the fiscal year ended December
31,
2005 as filed on August 8, 2006.
2. Quarterly
Report on Form 10-Q/A (Amendment No.1) for the quarter ended March 31, 2006
as
filed on August 8, 2006.
3. Quarterly
Reports on Form 10-Q for the quarters ended June 30, 2006 , as filed on August
9, 2006, and September 30, 2006, as filed on November 9, 2006.
3. Current
Reports on Form 8-K as filed on January 20, February 17, March 31, April
21, May
26, July 21, August 17, August 31, October 2, 2006 and December 1,
2006.
4. 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, and any
amendment or report filed for the purpose of updating such description,
including Current Report on Form 8-K as filed on August 17, 2006.
All
documents subsequently filed by PNM Resources or the Plan pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) after the date of this Registration Statement and prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which removes
from registration all such securities then remaining unsold shall be deemed
to
be incorporated herein by reference and to be a part hereof from the date
of
filing of such documents. Any statement contained in a document incorporated
or
deemed to be incorporated by reference herein shall be deemed to be modified
or
superseded for purposes of this Registration Statement to the extent that
a
statement contained herein or in any subsequently filed document which also
is
or is deemed to be incorporated by reference herein modifies or supersedes
such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item
4. Description
of Securities
The
deferred compensation obligations being registered represent obligations
(the
“Obligations”) of PNM Resources, Inc. to make future payments to Plan
participants. The Obligations consist of PNM Resources’ commitment under the
Plan to deliver at a future date any of the following:
| · |
supplemental
deferrals of participants’ compensation in such amounts as elected by
participants for each Plan Year,
|
| · |
matching
credits to participants’ Plan accounts made by PNM Resources or its
affiliates,
|
| · |
standard
credits to participants’ Plan accounts made by PNM Resources or its
affiliates,
|
| · |
supplemental
credits to the accounts of senior officers by PNM Resources or
its affiliates,
|
| · |
discretionary
credits to the accounts of selected participants in such amounts
as may be
determined by the Human Resources and Compensation Committee of PNM
Resources’ Board of Directors, and
|
| · |
earnings
on the foregoing amounts based on a notional investment
measurement.
|
The
amount of compensation to be deferred by each participant will be determined
in
accordance with the Plan based on the elections of the participant, and will
be
credited to a separate bookkeeping account in the name of the participant.
The
participant’s account will reflect units of an investment fund intended to
mirror substantially an investment in the common stock of PNM Resources
(“Company Stock Fund”) and other hypothetical investment media selected pursuant
to the Plan. The participant’s account will be credited, or debited, as the case
may be, based on the returns on the Company Stock Fund and the other
hypothetical investment media established pursuant to the Plan, or based
upon
earnings or losses incurred, pursuant to established procedures under the
Plan.
The Company Stock Fund and other investment media will be used only for the
purpose of calculating hypothetical returns, and the amounts in participants’
Plan accounts need not actually be invested in the selected investment media.
Dividends paid on the Company Stock Fund will be reflected in the participant’s
account by crediting to the Company Stock Fund the amount of units of the
Common
Stock Fund equal to the value of the dividends. The participant’s account will
also be adjusted periodically to reflect any stock splits or other adjustments
to the common stock. All amounts in a participant’s account will be vested
immediately, except amounts allocated to a participant’s supplemental credit
account. Amounts in a participant’s supplemental credit account will vest using
a two year cliff vesting schedule. However, a participant’s supplemental credit
account will be fully vested on the earliest of: (1) the date a participant
reaches age 55 and has two years of service, (2) the date a participant reaches
age 62, (3) the date a participant’s employment is terminated due to disability,
(4) the date a participant dies, (5) the date a participant’s employment is
terminated by PNM Resources or its affiliates for reasons other than cause
following a change in control or the participant’s employment is constructively
terminated (as defined in the Plan) following a change in control, or (6)
PNM
Resources decides, in its discretion, to accelerate the vesting of the
participant’s supplemental credits.
The
Obligations are generally payable in a cash lump-sum distribution or in the
form
of installments or an annuity as selected by the participant. The
distributions will be made or begin within an administratively reasonable
period
of time following the quarterly valuation date following a participant's
death, disability or other separation from service. If the
distribution is occasioned by the participant's separation from service with
PNM
Resources and its affiliates, the distribution will be delayed until an
administratively reasonable period of time following the quarterly valuation
date that is six months following the participant's separation from service
if
the participant is a "key employee", as most, if not all, participants will
be. Under certain circumstances, at the participant’s election, an
interest in the Common Stock Fund is distributable in the form of whole shares
of common stock.
There
is
no trading market for the Obligations. The Obligations are unsecured general
obligations of PNM Resources to make future payments to participants in
accordance with the terms of the Plan. Obligations will rank without preference
with other unsecured and unsubordinated indebtedness of PNM Resources from
time
to time outstanding and are, therefore, subject to the risks of the Company’s
insolvency. No trustee has been appointed to take action with respect to
the
Obligations and each participant in the Plan will be responsible for acting
independently with respect to, among other things, the giving of notices,
responding to requests for consents, waivers or amendments pertaining to
the
Obligations, enforcing covenants and taking action upon default.
A
participant’s rights to any amounts credited to his accounts may not be
alienated, sold, transferred, assigned, pledged, attached or otherwise
encumbered by the participant and may only pass upon the participant’s death
pursuant to a beneficiary designation made by a participant in accordance
with
the terms of the Plan. The Obligations are not convertible into any other
security of PNM Resources. All or a portion of the Obligations are payable
in
shares of common stock of PNM Resources, as described above. PNM Resources
reserves the right to amend, merge, consolidate or terminate the Plan at
any
time or from time to time, except that no such action may, without the consent
of the affected participant, affect any of the participant’s rights with respect
to the amount then credited to the participant’s account.
Obligations
in an aggregate principal amount of $2,500,000 were registered under the
Plan by
the Registration Statement on Form S-8, File No. 333-121371, filed on December
17, 2004. Obligations in an additional amount of $1,500,000 are now being
registered under the Plan. Further amounts may be registered and issued as
new
or existing Plan participants elect to defer portions of their compensation
in
subsequent years.
A
copy of
the Plan is filed as Exhibit 4 hereto and is incorporated herein by reference.
Item
5. Interests
of Named Experts and Counsel
None.
Item
6. Indemnification
of Directors and Officers
Section
6
of Article II of PNM Resources’ 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.
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.
Not
Applicable.
Item
8. Exhibits
The
following exhibits are filed with this Registration Statement.
|
Exhibit
No.
|
Description
|
|
4
|
PNM
Resources, Inc. Executive Savings Plan II, as amended by a First
Amendment
dated June 3, 2005 and a Second Amendment dated September 29, 2006
(incorporated by reference to Exhibit 4 to PNM Resources, Inc.’s
Registration Statement on Form S-8, File No. 333-121371 filed December
17,
2004, Exhibit 10.56.1 to PNM Resources, Inc.’s Quarterly Report on Form
10-Q for the quarter ended June 30, 2005 and Exhibit 10.2 to PNM
Resources, Inc.’s Current Report on Form 8-K filed October 2,
2006)
|
|
23.1
|
Consent
of Deloitte & Touche LLP (filed herewith)
|
|
24
|
Power
of Attorney (See signature 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.
Item
9. Undertakings
The
undersigned registrant hereby undertakes:
i) To
file,
during any period in which offers of sales are being made, a post-effective
amendment to this registration statement:
(1)
To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(2)
To
reflect in the prospectus any facts or events arising after the effective
date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(3)
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)(1) and (i)(2) 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 Exchange Act that are incorporated
by
reference in the registration statement.
ii) That,
for
the purpose of determining any liability under the Securities Act, 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.
iii) 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.
iv) That,
for
purposes of determining any liability under the Securities Act, each filing
of
the registrant’s annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) 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 may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted
by such
director, officer or controlling person in connection with the securities
being
registered, the registrant will, unless in the opinion of its counsel the
matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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-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 4, 2006.
| |
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| |
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, Charles N. Eldred, and Thomas
G.
Sategna, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her
and
in his or her name, place and stead, in any and all capacities, to sign any
or
all amendments to this registration statement, including post-effective
amendments and any registration statement filed pursuant to Rule 462(b) under
the Securities Act of 1933, and to file the same, with all exhibits thereto
and
other documents in connection therewith, with the Commission, granting unto
said
attorneys-in-fact and agents, and each of them, full power and authority
to do
and perform each and every act and thing requisite and necessary to be done
in
and about the premises, as fully to all intents and purposes as he or she
might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them, or the substitute or substitutes
of any or all of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
|
Signature
|
Title
|
Date
|
| |
|
|
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/s/
Jeffry E. Sterba
|
Chairman,
President and Chief
|
December
4, 2006
|
|
Jeffry
E. Sterba
|
Executive
Officer; Director
|
|
| |
(Principal
Executive Officer)
|
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| |
|
|
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/s/
Charles N. Eldred
|
Senior
Vice President and Chief
|
December
4, 2006
|
|
Charles
N. Eldred
|
Financial
Officer
|
|
| |
(Principal
Financial Officer)
|
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|
|
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/s/
Thomas G. Sategna
|
Vice
President and Corporate
|
December
4, 2006
|
|
Thomas
G. Sategna
|
Controller
(Principal Accounting
|
|
| |
Officer)
|
|
| |
|
|
| /s/
Adelmo E. Archuleta |
Director
|
December
4, 2006
|
|
Adelmo
E. Archuleta
|
|
|
| |
|
|
|
/s/
Julie A. Dobson
|
Director
|
December
4, 2006
|
|
Julie
A. Dobson
|
|
|
| |
|
|
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/s/
Woody L. Hunt
|
Director
|
December
4, 2006
|
|
Woody
L. Hunt
|
|
|
| |
|
|
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/s/
Charles E. McMahen
|
Director
|
December
4, 2006
|
|
Charles
E. McMahen
|
|
|
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/s/
Manuel T. Pacheco
|
Director
|
December
4, 2006
|
|
Manuel
T. Pacheco
|
|
|
| |
|
|
|
/s/
Robert M. Price
|
Director
|
December
4, 2006
|
|
Robert
M. Price
|
|
|
| |
|
|
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/s/
Bonnie S. Reitz
|
Director
|
December
4, 2006
|
|
Bonnie
S. Reitz
|
|
|
| |
|
|
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/s/
Joan B. Woodard
|
Director
|
December
4, 2006
|
|
Joan
B. Woodard
|
|
|
THE
PLAN.
Pursuant to the requirements of the Securities Act, the Plan Administrator
of
the Plan has duly caused this registration statement to be signed on the
Plan’s
behalf by the undersigned thereunto duly authorized officer, in the City
of
Albuquerque, State of New Mexico, on December 4, 2006.
| |
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PNM
RESOURCES, INC.
EXECUTIVE SAVINGS PLAN
II
|
|
|
|
| |
By: |
/s/ Alice
A.
Cobb |
| |
Alice
A. Cobb |
| |
Senior
Vice President and Chief Administrative Officer,
People Services and Development of PNM Resouces,
Inc.
|
Exhibit
Index
|
Exhibit
No.
|
Description
|
|
4
|
PNM
Resources, Inc. Executive Savings Plan II, as amended by a First
Amendment
dated June 3, 2005 and a Second Amendment dated September 29, 2006
(incorporated by reference to Exhibit 4 to PNM Resources, Inc.’s
Registration Statement on Form S-8, File No. 333-121371 filed December
17,
2004, Exhibit 10.56.1 to PNM Resources, Inc.’s Quarterly Report on Form
10-Q for the quarter ended June 30, 2005 and Exhibit 10.2 to PNM
Resources, Inc.’s Current Report on Form 8-K filed October 2,
2006)
|
|
23.1
|
Consent
of Deloitte & Touche LLP (filed herewith)
|
|
24
|
Power
of Attorney (See signature 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.
9