s8_060608pnmr.htm
As filed
with the Securities and Exchange Commission on June 6, 2008
Registration
No. _______
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)
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New
Mexico
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85-0468296
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(State
or other jurisdiction
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(I.R.S.
Employer
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of
incorporation or organization)
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Identification
No.)
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Alvarado
Square
Albuquerque,
New Mexico 87158
(Address
of principal executive offices, including zip code)
PNM
RESOURCES, INC.
EMPLOYEE
STOCK PURCHASE PLAN
(Full
title of the plan)
Patrick
T. Ortiz, Esq.
Senior
Vice President, General Counsel & Secretary
PNM
Resources, Inc.
414
Silver Street SW
Albuquerque,
New Mexico 87102
Telephone:
(505) 241-2896
Fax:
(505) 241-2368
(Name,
address, 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
Indicate
by a check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
x Large
accelerated
filer o Accelerated
filer
o Non-accelerated
filer o Smaller
reporting company
(Do not check if smaller
Reporting company)
This
Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
CALCULATION
OF REGISTRATION FEE
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Title
of securities to be registered
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Amount
to be registered (1)
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Proposed
maximum
offering
price per share (2)
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Proposed
maximum aggregate offering price (2)
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Amount
of registration fee
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Common
Stock, no par value
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180,000
shares
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$15.10
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$2,718,000
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$106.82
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(1) Pursuant
to Rule 416(a) of the Securities Act, there is also being registered, in order
to prevent dilution, such number of additional shares of common stock that may
become available for purchase under the PNM Resources, Inc. Employee Stock
Purchase Plan in the event of certain changes in the outstanding shares,
including reorganizations, mergers, recapitalizations, restructurings, stock
dividends, stock splits, reverse stock splits and
reclassifications. In addition, pursuant to Rule 416(c ) under the
Securities Act of 1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated solely for the
purpose of calculating the amount of the registration fee, pursuant to Rule
457(h) of the Securities Act of 1933, as amended (the “Securities
Act”). The offering price is calculated on the basis of the average
of the high and low sale price of the Registrant’s common stock on the New York
Stock Exchange on June 4, 2008.
This
Registration Statement relates to Form S-8 Registration Statement No.
333-100184, filed on September 20, 2002, pursuant to which the Registrant
registered 250,000 shares of common stock for issuance under the PNM Resources,
Inc. Employee Stock Purchase Plan (as adjusted to reflect an increase of 125,000
shares resulting from a 3 for 2 stock split that occurred on June 11,
2004). The contents of this registration statement are incorporated
by reference herein pursuant to General Instruction E to Form
S-8. This Registration Statement relates to an amendment to the plan
to increase the number of shares of common stock authorized to be issued
thereunder by 180,000 shares (from 375,000 to 555,000 shares). The
previously paid filing fees associated with the referenced securities under the
foregoing registration statement are $449.65.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I of Form S-8 will be
sent or given to employees participating in the PNM Resources, Inc. (“PNM
Resources”) Employee Stock Purchase Plan (the “Plan”) as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”) and
Introductory Note 1 of Form S-8. These documents and the documents
incorporated by reference into this registration statement pursuant to Item 3 of
Part II of this registration statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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ITEM 3.
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INCORPORATION
OF DOCUMENTS BY REFERENCE.
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PNM
Resources and the Plan incorporate by reference in this Registration Statement
the following documents previously filed with the Commission by PNM
Resources:
1. Annual
Report on Form 11-K for the fiscal year ended June 30, 2007 for the PNM
Resources, Inc. Employee Stock Purchase Plan as filed on September 25,
2007.
2. PNM
Resources’ Annual Report on Form 10-K for the fiscal year ended December 31,
2007 as filed on February 29, 2008.
3. PNM
Resources’ Quarterly Report on Form 10-Q for the quarter ended March 31, 2008 as
filed on May 7, 2008.
4. PNM
Resources’ Current Reports on Form 8-K as filed January 17, 2008, February 28,
2008, March 11, 2008, March 14, 2008, May 7, 2008, May 9, 2008, May 12, 2008 and
May 21, 2008.
5. PNM
Resources’ 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 by 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
deregisters all securities then remaining unsold shall be deemed to be
incorporated herein 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 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.
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ITEM 4.
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DESCRIPTION
OF SECURITIES.
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Not
applicable.
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ITEM 5.
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INTERESTS
OF NAMED EXPERTS AND
COUNSEL.
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Not
applicable.
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ITEM
6.
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INDEMNIFICATION OF
DIRECTORS AND OFFICERS.
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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 that provide for indemnification of directors and officers
to the fullest extent permitted by law, including advancement of litigation
expenses where appropriate. The agreements provide for the
appointment of a reviewing party by the Board of Directors to make a
determination whether claimed indemnification is permitted under applicable
law.
PNM
Resources maintains insurance on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising on
the part of PNM Resources out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits.
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ITEM
7.
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EXEMPTION FROM
REGISTRATION CLAIMED.
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Not
applicable.
See
Exhibit Index.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers of sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however,
That:
(A) Paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration
statement is on Form S-8 (§239.16b of this chapter), and the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration
statement; and
(B) Paragraphs
(a)(1)(i), (a)(1)(ii) and a(1)(iii) of this section do not apply if the
registration statement is on Form S-3 (§239.13 of this chapter) or Form F-3
(§239.33 of this chapter) and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) (§239.424(b) of this chapter) that is part of the
registration statement.
(C) Provided, further, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is for an offering of asset-backed securities on Form S-1 (§239.11 of
this chapter) or Form S-3 (§239.13 of this chapter), and the information
required to be included in a post-effective amendment is provided pursuant to
Item 1100(c) of Regulation AB (§229.1100(c)).
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) If the
registrant is a foreign private issuer, to file a post-effective amendment to
the registration statement to include any financial statements required by Item
8.A. of Form 20-F at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be furnished, provided, that the registrant
includes in the prospectus, by means of a post-effective
amendment,
financial statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in the prospectus is
at least as current as the date of the those financial
statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form
F-3.
(5) That, for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If the
registrant is relying on Rule 430B (§230.430B of this chapter):
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) (§230.424(b)(3) of
this chapter) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration
statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), b(5), or (b)(7)
(§230.424(b)(2), (b)(5), or (b)(7) of this chapter) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) (§234.415(a)(1)(i), (viii), or (x) of this chapter)
for the purpose of providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof. Provided,
however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date; or
(ii) If the
registrant is subject to Rule 430C (§234.430C of this chapter), each prospectus
filed pursuant to Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A (§230.430A of this chapter), shall
be deemed to be part of and included in the registration statement as of the
date it is first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first
use.
(6) That, for
the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424 (§230.424 of this
chapter);
(ii) Any free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
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 June 6, 2008.
PNM
RESOURCES, INC.
By: /s/ Jeffry E.
Sterba
Jeffry E.
Sterba
POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints, jointly and severally, Jeffry E. Sterba,
Charles N. Eldred, and Thomas G. Sategna and each of them acting
individually, as his or her attorneys-in-fact and agents, each with full power
of substitution, for him or her any and all capacities, to sign any and all
amendments (including, without limitation, post-effective amendments and any
amendments or abbreviated registration statements increasing the amount of
securities for which registration is being sought) to this registration
statement, with all exhibits and any and all documents required to be filed with
respect thereto, with the Securities and Exchange Commission or any regulatory
authority, granting unto such 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 order to effectuate the same as fully to
all intents and purposes as he or she might or could do if personally present,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
any of them, or their substitute or substitutes, may lawfully do or cause to be
done.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
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Chairman,
President and Chief Executive Officer; Director (Principal Executive
Officer)
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June
6, 2008
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Jeffry
E. Sterba
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Executive
Vice President and Chief Financial Officer
(Principal
Financial Officer)
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June
6, 2008
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Charles
N. Eldred
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Vice
President and Corporate Controller (Principal Accounting
Officer)
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June
6, 2008
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Thomas
G. Sategna
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Director
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June
6, 2008
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Adelmo E.
Archuleta
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Director
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June
6, 2008
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Julie
A. Dobson
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Director
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June
6, 2008
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Woody
L. Hunt
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Director
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June
6, 2008
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Robert
R. Nordhaus
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Director
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June
6, 2008
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Manuel T. Pacheco
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Director
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June
6, 2008
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Robert M. Price
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Director
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June
6, 2008
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Bonnie S. Reitz
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Director
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June
6, 2008
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THE PLAN. Pursuant to the
requirements of the Securities Act, the Board Governance and Human Resources
Committee of the Board of Directors of PNM Resources, Inc. (which administers
the PNM Resources, Inc. Employee Stock Purchase Plan) 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 6,
2008.
PNM
RESOURCES, INC. EMPLOYEE STOCK PURCHASE PLAN
By: /s/ Bonnie S.
Reitz
Bonnie S.
Reitz
Chair of
the Human
Resources
and Compensation Committee
EXHIBIT
INDEX
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Exhibit
No.
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Description
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4.1
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PNM
Resources, Inc. Employee Stock Purchase Plan.
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5.1
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Opinion
of Charles L. Moore, Esq.
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23.1
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Consent
of Deloitte & Touche LLP
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23.2
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Consent
of Charles L. Moore, Esq. (included in Exhibit 5.1)
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24
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Power
of Attorney (See signatures page in Part II).
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