AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 2003
REGISTRATION NO. 333-
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)
--------------------------------
It is respectfully requested that the Commission send copies of all orders,
notices and communications to:
CHARLES L. MOORE, ESQ. TIMOTHY MICHAEL TOY, ESQ.
KELEHER & MCLEOD, P.A. PILLSBURY WINTHROP LLP
414 Silver Avenue, S.W. One Battery Park Plaza
Albuquerque, New Mexico 87103 New York, New York 10004-1490
Tel: (505) 346-4646 Tel: (212) 858-1000
Fax: (505) 346-1345 Fax: (212) 858-1500
E-mail: clm@keleher-law.com E-mail: ttoy@pillsburywinthrop.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
=========================================================================================================================
Proposed maximum aggregate Amount of
Title of each class of securities to be registered offering price (1)(2) registration fee
-------------------------------------------------------------------------------------------------------------------------
Debt securities.........................................................
Common stock, no par value..............................................
Preferred stock.........................................................
Purchase contracts (3)..................................................
Purchase contract units (3).............................................
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Total $500,000,000 $40,450
=========================================================================================================================
(1) Includes an indeterminate number or amount of debt securities, shares of
common stock, shares of preferred stock, purchase contracts and purchase
contract units as may from time to time be issued at indeterminate prices
provided that in no event will the aggregate initial price of all debt
securities, shares of common stock, shares of preferred stock, purchase
contracts and purchase contract units sold under this registration
statement exceed $500,000,000. If any such securities are issued at an
original
issue discount, then the aggregate initial offering price as so discounted
shall not exceed $500,000,000, notwithstanding that the stated principal
amount of such securities may exceed such amount.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) There is being registered hereunder an indeterminate number of shares of
common stock issuable by PNM Resources, Inc., upon settlement of purchase
contracts or purchase contract units.
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 OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
The information in this prospectus is not complete and may be changed. PNM
Resources, Inc. may not sell these securities 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
$500,000,000
PNM RESOURCES, INC.
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
PURCHASE CONTRACTS
and
PURCHASE CONTRACT UNITS
We may offer from time to time up to an aggregate of $500,000,000 of
our securities. We will provide specific terms of our securities, including
their offering prices, in supplements to this prospectus. The supplements may
also add, update or change information contained in this prospectus. You should
read this prospectus and any supplements carefully before you invest.
Our common stock is listed on the New York Stock Exchange and trades
under the symbol "PNM."
We may offer these securities directly or through underwriters, agents
or dealers. The supplements to this prospectus will describe the terms of any
offering of these securities, including any underwriting arrangements. See also
"Plan of Distribution" on page 17 of this prospectus.
Our principal executive offices are located at Alvarado Square,
Albuquerque, New Mexico, 87158 and our telephone number is (505) 241-2700.
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.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the Securities and Exchange Commission, or SEC, using a "shelf"
registration process. Under this shelf registration process, we may sell the
securities or combinations of the securities described in this prospectus in one
or more offerings up to a total dollar amount of $500,000,000. This prospectus
provides you with a general description of the securities that we may offer.
Each time we offer any of the securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the
heading "Where You Can Find More Information."
For more detailed information about the securities, you can read the
exhibits to the registration statement. Those exhibits have been either filed
with the registration statement or with our other SEC filings incorporated by
reference in the registration statement.
Unless otherwise indicated or unless the context otherwise requires,
all references in this prospectus to "PNM Resources", "we", "our", "us", or
similar references mean PNM Resources, Inc. and all of its subsidiaries.
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 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 we
sell all of these securities 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 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.
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
You should rely only on the information contained in, or incorporated
by reference in, this prospectus and any prospectus supplement. We have not, and
any underwriters, agents or dealers have not, authorized anyone else to provide
you with different information. We are not, and any underwriters, agents or
dealers are not, making an offer of these securities or soliciting offers to buy
these securities in any state where the offer or solicitation is not permitted.
You should not assume that the information contained in this prospectus and any
prospectus supplement is accurate as of any date other than the date on the
front of such document or that the information incorporated by reference in this
prospectus is accurate as of any date other than the date of the document
incorporated by reference.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our ratio of earnings to fixed charges for
the periods* indicated:
Three Months
Year Ended December 31, Ended
2002 2001 2000 1999 1998 March 31, 2003
2.15 3.63 3.05 2.40 2.19 1.75
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RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table shows our ratio of earnings to combined fixed
charges and preferred stock dividends for the periods** indicated:
Three Months
Year Ended December 31, Ended
2002 2001 2000 1999 1998 March 31, 2003
2.13 3.61 3.03 2.38 2.18 1.73
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*This table shows the ratio information for Public Service Company of New Mexico
through 2001, and thereafter shows the ratio information for PNM Resources,
Inc., following the formation of the holding company.
**This table shows the ratio information for Public Service Company of New
Mexico through 2001, and thereafter shows the ratio information for PNM
Resources, Inc. To date, PNM Resources, Inc. does not have any outstanding
preferred stock. The ratio information in this table reflects the 128,000 shares
of outstanding preferred stock of Public Service Company of New Mexico.
USE OF PROCEEDS
Except as may otherwise be set forth in a prospectus supplement, the
proceeds from the sale of these securities may be used to retire outstanding
debt, to finance a portion of our capital expenditures and for other general
corporate purposes.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description sets forth certain general terms and
provisions of our debt securities. When we offer our debt securities in the
future, a prospectus supplement will explain the particular terms of those debt
securities and the extent to which any of these general provisions will not
apply.
The debt securities will be our direct obligations. We may issue the
debt securities from time to time in one or more series, under an indenture
between us and JPMorgan Chase Bank, as trustee (Trustee). This indenture, as it
may be amended and supplemented from time to time, is referred to in this
prospectus as the "Indenture."
We have summarized selected provisions of the Indenture below. You
should read this summary together with the Indenture and the officer's
certificates or other documents establishing the debt securities for a complete
understanding of the provisions that may be important to you. You should also
read this prospectus and any applicable prospectus supplement before you make
any investment decision. The following descriptions of the debt securities and
the Indenture are qualified by reference to the Indenture, a form of which is
filed as an exhibit to the registration statement of which this prospectus is a
part. References to certain sections of the Indenture are included in
parentheses. Whenever particular provisions or defined terms in the Indenture
are referred to under this "Description of Debt Securities," such provisions or
defined terms are incorporated by reference herein. The Indenture is qualified
under the Trust Indenture Act of 1939. You should refer to the Trust Indenture
Act of 1939 for provisions that apply to the debt securities.
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Because we are a holding company that conducts substantially all of our
operations through subsidiaries, holders of the debt securities will generally
have a position junior to the claims of creditors of our subsidiaries (including
trade creditors of and holders of indebtedness issued by any such subsidiary)
and preferred stockholders of our subsidiaries. As of May 31, 2003, our
subsidiary, PNM, had 128,000 shares, stated value of $100 per share, of
cumulative preferred stock outstanding and we had, on a consolidated basis,
$1,140,439 aggregate principal amount of debt outstanding, substantially all of
which was debt of PNM.
The prospectus supplement relating to any series of debt securities
being offered will include specific terms relating to that offering. These terms
will include any of the following terms that apply to that series:
- the title of the debt securities;
- the total principal amount of the debt securities;
- the date or dates on which the principal of the debt securities will be
payable and how it will be paid;
- the rate or rates at which the debt securities will bear interest, if
any, and how the rate or rates will be determined;
- the date or dates from which interest on the debt securities will
accrue, the interest payment dates on which interest will be paid, and
the record dates for the interest payments;
- the right, if any, to extend the interest payment periods for the debt
securities and the duration of the extension;
- the place or places where payments will be made;
- whether we have the option to redeem the debt securities and, if so,
the terms of our redemption option;
- any sinking fund or other provisions or options held by holders of the
debt securities that would obligate us to repurchase or otherwise
redeem the debt securities;
- if the debt securities will be issued in denominations other than
$1,000;
- any index or formula used for determining principal, premium or
interest;
- any collateral, security, assurance or guarantee applicable to a series
of debt securities;
- the currency in which payments will be made if other than United States
dollars, and the manner of determining the equivalent of those amounts
in United States dollars;
- if payments may be made on any of the debt securities, at our election
or at the holder's election, in a currency other than that in which the
debt securities are stated to be payable, then the currency in which
those payments may be made, the terms and conditions of the election
and the manner of determining those amounts;
- the portion of the principal payable upon acceleration of maturity, if
other than the entire principal;
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- if the principal payable on the maturity date will not be determinable
on one or more dates prior to the maturity date, the amount which will
be deemed to be such principal amount or the manner of determining it;
- whether the provisions described under "Discharge, Defeasance and
Covenant Defeasance" will apply to the debt securities;
- whether the debt securities will be issuable as global securities and,
if so, the securities depositary;
- any changes or additions to the events of default under the Indenture
or changes or additions to our covenants under the Indenture; and
- any other terms of the debt securities not inconsistent with the terms
of the Indenture.
(See Section 3.01)
All debt securities of any one series will be substantially identical
except as to denomination and except as may otherwise be determined in the
manner provided for in the Indenture. (See Section 3.01)
The Indenture does not currently contain any restriction on the payment
of dividends or any financial covenants. However, the supplemental indenture for
any series of debt securities may contain such restrictions. The prospectus
supplement related to such debt securities will describe such restrictions and
the protections, if any, that such restrictions provide the holders of the debt
securities in the event of a highly leveraged transaction involving us that may
adversely affect the holders of the debt securities.
GLOBAL DEBT SECURITIES
We may issue some or all of the debt securities as book-entry
securities. Any such book-entry securities will be represented by one or more
fully registered global securities. We will register each global security with
or on behalf of a securities depositary identified in the applicable prospectus
supplement. Each global security will be deposited with the securities
depositary or its nominee or a custodian for the securities depositary.
As long as the securities depositary or its nominee is the registered
holder of a global security representing debt securities, that person will be
considered the sole owner and holder of the global security and the debt
securities it represents for all purposes. Except in limited circumstances,
owners of beneficial interests in a global security:
- may not have the global security or any of the debt securities it
represents registered in their names;
- may not receive or be entitled to receive physical delivery of
certificated debt securities in exchange for the global security; and
- will not be considered the owners or holders of the global security or
any of the debt securities it represents for any purposes under the
debt securities or the Indenture.
We will make all payments of principal and any premium and interest on
a global security to the securities depositary or its nominee as the holder of
the global security. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
global security.
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Ownership of beneficial interests in a global security will be limited
to institutions having accounts with the securities depositary or its nominee,
which are called "participants" in this discussion, and to persons that hold
beneficial interests through participants. When a global security representing
debt securities is issued, the securities depositary will credit on its book
entry, registration and transfer system the principal amounts of debt securities
the global security represents to the accounts of its participants. Ownership of
beneficial interests in a global security will be shown only on, and the
transfer of those ownership interests will be effected only through, records
maintained by:
- the securities depositary, with respect to participants' interests; and
- any participant, with respect to interests the participant holds on
behalf of other persons.
Payments to owners of beneficial interests held through participants
will be the responsibility of those participants. The securities depositary may
from time to time adopt various policies and procedures governing payments,
transfers, exchanges and other matters relating to beneficial interests in a
global security. None of the following will have any responsibility or liability
for any aspect of the securities depositary's or any participant's records
relating to beneficial interests in a global security representing debt
securities, for payments made on account of those beneficial interests or for
maintaining, supervising or reviewing any records relating to those beneficial
interests:
- PNM Resources;
- the Trustee; or
- an agent of either of them.
REDEMPTION
We will set forth any terms for the redemption of any debt securities
in the applicable prospectus supplement. Unless we indicate differently in the
applicable prospectus supplement, the debt securities will be redeemable upon
notice by mail to the holders between 30 and 60 days prior to the redemption
date. If less than all of the debt securities of any series are to be redeemed,
the Trustee will select the debt securities to be redeemed. In the absence of
any provision for selection, the Trustee will choose a method of random
selection as it deems fair and appropriate. (See Sections 11.03 and 11.04)
The debt securities will cease to bear interest on the redemption date.
We will pay the redemption price and any accrued interest once the debt
securities are surrendered for redemption. (See Section 11.06) If only part of a
debt security is redeemed, the Trustee will deliver to you a new debt security
of the same series for the remaining portion without charge. (See Section 11.07)
We may make any redemption, at our option, conditional upon the receipt
by the paying agent or agents, on or prior to the date fixed for redemption, of
money sufficient to pay the redemption price. If the paying agent or agents have
not received the money by the date fixed for redemption, we will not be required
to redeem the debt securities. (See Section 11.04)
PAYMENT
Except as may be provided in the applicable prospectus supplement,
interest, if any, on each debt security payable on each interest payment date
will be paid to the person in whose name the debt security is registered as of
the close of business on the regular record date for the interest payment date.
Interest payable at maturity, however, will be paid to the person to whom the
principal is paid. If there has been a
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default in the payment of interest on any debt security, the defaulted interest
may be paid to the holder of that debt security as of the close of business on a
date to be fixed by the Trustee, which will be between 10 and 15 days prior to
the date we proposed for payment of the defaulted interest, or in any other
manner permitted by any securities exchange on which that debt security may be
listed, if the Trustee finds it practicable. (See Section 3.07)
REGISTRATION OF TRANSFER AND EXCHANGE
Unless otherwise specified in the prospectus supplement applicable to
any series of debt securities, the transfer of the debt securities may be
registered, and the debt securities may be exchanged for other debt securities
of the same series, of authorized denominations and with the same terms and
principal amount, at the corporate trust office of the Trustee. We may change
the place for registration of transfer and exchange of the debt securities and
may designate additional places for registration and exchange. Unless otherwise
provided in the prospectus supplement applicable to any series of debt
securities, no service charge will be made for any transfer or exchange of the
debt securities. However, we may require payment to cover any tax or other
governmental charge that may be imposed. We will not be required to execute or
to provide for the registration of transfer of, or the exchange of:
- any debt security during a period of 15 days prior to giving any notice
of redemption; or
- any debt security selected for redemption except the unredeemed portion
of any debt security being redeemed in part.
(See Section 3.05)
RESTRICTIONS ON MERGERS AND SALE OF ASSETS
Under the terms of the Indenture, we may not consolidate with or merge
into any other entity or convey, transfer or lease our properties and assets
substantially as an entirety to any entity, unless:
- the surviving or successor entity is organized and validly existing
under the laws of any domestic jurisdiction and it expressly assumes
our obligations on all debt securities and under the Indenture;
- immediately after giving effect to the transaction, no event of default
and no event which, after notice or lapse of time or both, would become
an event of default shall have occurred and be continuing; and
- we deliver to the Trustee, an officer's certificate and an opinion of
counsel as to compliance with the foregoing.
(See Section 8.01)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that we may be:
- discharged from our obligations, with certain limited exceptions, with
respect to any particular series of debt securities, as described in
the Indenture, such a discharge being called a "defeasance" in this
prospectus; and
- released from our obligations under certain restrictive covenants
especially established with respect to any particular series of debt
securities, including the covenants described above under "Restrictions
7
on Mergers and Sale of Assets", such a release being called a "covenant
defeasance" in this prospectus.
(See Sections 13.02 and 13.03)
We must satisfy certain conditions to effect a defeasance or covenant
defeasance. Those conditions include the irrevocable deposit with the Trustee,
in trust, of money or government obligations which through their scheduled
payments of principal and interest would provide sufficient money to pay the
principal and any premium and interest on those debt securities on the maturity
dates of those payments or upon redemption. (See Section 13.04)
Under current United States federal income tax laws, a defeasance would
be treated as an exchange of the relevant debt securities in which holders of
those debt securities might recognize gain or loss. In addition, the amount,
timing and character of amounts that holders would thereafter be required to
include in income might be different from that which would be includible in the
absence of that defeasance. We urge investors to consult their own tax advisors
as to the specific consequences of a defeasance, including the applicability and
effect of tax laws other than United States federal income tax laws. (See
Section 13.04)
Under current United States federal income tax law, unless accompanied
by other changes in the terms of the debt securities, a covenant defeasance
should not be treated as a taxable exchange.
MODIFICATION OF THE INDENTURE
We and the Trustee may enter into one or more supplemental indentures
without the consent of any holder of the debt securities for any of the
following purposes:
- to evidence the assumption by any permitted successor of our covenants
in the Indenture and in the debt securities;
- to add to our existing covenants or to surrender any of our rights or
powers under the Indenture;
- to add additional events of default;
- to change, eliminate, or add any provision to the Indenture; provided,
however, if the change, elimination, or addition will adversely affect
the interests of the holders of the debt securities of any particular
series in any material respect, that change, elimination, or addition
will become effective only:
- when the consent of the holders of a majority in aggregate
principal amount of the debt securities of that series has
been obtained in accordance with the Indenture; or
- when no debt securities of the affected series remain
outstanding under the Indenture;
- to secure the debt securities;
- to establish the form or terms of the debt securities of any other
series as permitted by the Indenture;
- to evidence and provide for the acceptance of appointment of a
successor trustee;
- to provide for or facilitate the administration of the trust by more
than one Trustee; or
8
- to cure any ambiguity or inconsistency or to make any other provisions
with respect to matters and questions arising under the Indenture;
provided that the action does not adversely affect the interests of the
holders of the debt securities of any particular series in any material
respect.
(See Section 9.01)
If the Trust Indenture Act of 1939 is amended after the date of the
Indenture to require changes to the Indenture, the Indenture will be deemed to
be amended so as to conform to that amendment of the Trust Indenture Act of
1939. We and the Trustee may, without the consent of any of the holders, enter
into one or more supplemental indentures to evidence that amendment. (See
Section 9.01)
The consent of the holders of a majority in aggregate principal amount
of the debt securities of all series then outstanding, considered as one class,
is required for all other modifications to the Indenture. However, if less than
all of the series of debt securities outstanding are directly affected by a
proposed supplemental indenture, then only the consent of the holders of a
majority in aggregate principal amount of the outstanding debt securities of all
series that are directly affected will be required. No amendment or modification
may:
- change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security, or reduce the principal
amount of any debt security or its rate of interest or change the
method of calculating the interest rate or reduce any premium payable
upon redemption, or change the currency in which payments are made, or
impair the right to institute suit for the enforcement of any payment
on or after the stated maturity of any debt security, without the
consent of the holder;
- reduce the percentage in principal amount of the outstanding debt
security of any particular series which consent is required for any
supplemental indenture or any waiver of compliance with a provision of
the Indenture or any default thereunder and its consequences, or reduce
the requirements for quorum or voting, without the consent of all the
holders of the series; or
- modify certain provisions of the Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past defaults
with respect to the debt securities of any particular series, without
the consent of the holder of each outstanding debt security affected
thereby.
(See Section 9.02)
A supplemental indenture which changes the Indenture solely for the
benefit of one or more particular series of debt securities, or modifies the
rights of the holders of the debt securities of one or more series, will not
affect the rights under the Indenture of the holders of the debt securities of
any other series. (See Section 9.02)
The Indenture provides that the debt securities owned by us or anyone
else required to make payment on the debt securities will be disregarded and
considered not to be outstanding in determining whether the required holders
have given a request or consent. (See Section 1.01)
We may fix in advance a record date to determine the required number of
holders entitled to give any request, demand, authorization, direction, notice,
consent, waiver or other such act of the holders, in certain situations. If the
record date is fixed, the holders of the outstanding debt securities of the
relevant series on that record date, and no other holders, will be entitled to
take or revoke the relevant action, whether or not those holders remain holders
after that record date. No action, however, will be effective unless taken on or
prior to the applicable expiration date by holders of the requisite principal
amount of the outstanding debt securities of that series on that record date.
Any request, demand, authorization,
9
direction, notice, consent, election, waiver or other act of a holder will bind
every future holder of the same debt securities and the holder of every debt
security issued upon the registration of transfer of or in exchange of those
debt securities. A transferee will be bound by our acts or those of the Trustee
taken in reliance thereon, whether or not notation of that action is made upon
that debt security. (See Section 1.04)
EVENTS OF DEFAULT
"Event of default" when used in the Indenture with respect to any
particular series of debt securities, means any of the following:
- failure to pay interest on any debt security of the applicable series
for 60 days after it is due;
- failure to pay the principal of or premium on any debt security of the
applicable series when due (whether at maturity or upon earlier
redemption);
- failure to pay the deposit of any sinking fund payment, when and as due
by the terms of the applicable series;
- failure to perform any other covenant in the Indenture, other than a
covenant that does not relate to that series of debt securities, that
continues for 90 days after we receive written notice from the Trustee,
or we and the Trustee receive a written notice from the holders of a
majority in principal amount of the debt securities of such series;
however, the Trustee or the Trustee and such holders can agree to an
extension of the 90-day period and this extension will be automatic if
we are diligently pursuing action to correct the default;
- certain events in bankruptcy, insolvency or reorganization of PNM
Resources; or
- any other event of default provided with respect to the debt securities
of that series.
(See Section 5.01)
REMEDIES
Acceleration of Maturity
If an event of default with respect to any one series of debt
securities occurs and continues, either the Trustee or the holders of a majority
in principal amount of the outstanding debt securities of that series may
declare the principal amount of all the debt securities of that series to be due
and payable immediately. However, if the event of default is applicable to more
than one series of debt securities, the Trustee or the holders of a majority in
principal amount of all the outstanding debt securities of all series,
considered as one class, and not the holders of any one series, may make a
declaration of acceleration. (See Section 5.02)
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the event of default giving rise to the declaration of acceleration
will be considered waived, and the declaration and its consequences will be
considered rescinded and annulled, if:
- we have paid or deposited with the Trustee a sum sufficient to pay:
- all overdue interest on all the debt securities of the
series;
10
- the principal of and premium, if any, on any debt
securities of the series which have otherwise become due
and interest, if any, that is currently due;
- interest, if any, on overdue interest (to the extent
lawful); and
- all amounts due to the Trustee under the Indenture; and
- any other event of default with respect to the debt securities of that
series has been cured or waived as provided in the Indenture.
(See Section 5.02)
The holders of a majority in principal amount of the outstanding debt
securities of any particular series may on behalf of the holders of all the debt
securities of that series waive any past default under the Indenture with
respect to that series and its consequences, except a default:
- in the payment of the principal of or any premium or interest on any
debt security of that series, or
- in respect of a covenant or provision of the Indenture which cannot be
modified or amended by supplemental indenture without the consent of
the holder of each outstanding debt security of the series affected.
However, if a default occurs and continues with respect to more than
one series of debt securities, the holders of a majority in aggregate principal
amount of the outstanding debt securities of all such series, considered as one
class, has the right to waive the default, and not the holders of the debt
securities of any one such series. Upon any waiver, the default ceases to exist,
and any and all events of default arising therefrom is deemed to have been
cured, for every purpose of the Indenture; but no waiver will extend to any
subsequent or other default or impair any right consequent thereon. (See Section
5.13)
Right to Direct Proceedings
If an event of default with respect to any particular series of debt
securities occurs and continues, the holders of a majority in principal amount
of the outstanding debt securities of that series have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the debt securities of that series. However, if an event of default
occurs and continues with respect to more than one series of debt securities,
the holders of a majority in aggregate principal amount of the outstanding debt
securities of all such series, considered as one class, have the right to make
the direction, and not the holders of the debt securities of any one of such
series and that:
- such direction will not be in conflict with any rule of law or with the
Indenture;
- the Trustee may take any other action deemed proper by the Trustee and
not inconsistent with direction, and
- subject to the provisions of the Indenture the Trustee will have the
right to decline to follow any direction if the Trustee in good faith
determines that the proceeding so directed would involve the Trustee in
personal liability.
(See Section 5.12)
11
Limitation on Right to Institute Proceedings
No holder of debt securities of any particular series will have any
right to institute any proceeding, judicial or otherwise, with respect to the
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy under the Indenture, unless:
- the holder has previously given to the Trustee written notice of a
continuing event of default;
- the holders of a majority in aggregate principal amount of the
outstanding debt securities of all series in respect of which an event
of default has occurred and is continuing, considered as one class,
have made a written request to the Trustee, and have offered reasonable
indemnity to the Trustee to institute proceedings; and
- the Trustee has failed to institute any proceeding for 60 days after
notice and has not received any direction inconsistent with the written
request of the holders during that period.
(See Section 5.07)
No Impairment of Right to Receive Payment
The limitations on the right to institute proceedings, however, do not
apply to a suit by a holder of a debt security for payment of the principal of
or premium, if any, or interest if any, on that debt security on or after the
applicable due date. (See Section 5.08)
Annual Notice to Trustee
We will provide to the Trustee an annual statement by an appropriate
officer as to whether we are in default in the performance and observance of any
of the terms, provisions and conditions of the Indenture. (See Section 10.04)
NOTICES
Notices to holders of the debt securities will be given by mail to the
holders at the addresses that appear in the security register. (See Section
1.06)
TITLE
We, the Trustee, and any of our agents or the agents of the Trustee,
may treat the person in whose name the debt securities are registered as the
absolute owner thereof, whether or not such debt securities may be overdue, for
the purpose of making payments and for all other purposes irrespective of notice
to the contrary. (See Section 3.08)
GOVERNING LAW
The Indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York. (See Section
1.12)
REGARDING THE TRUSTEE
The Trustee is JPMorgan Chase Bank. In addition to acting as Trustee,
JPMorgan Chase Bank acts, and may act, as trustee under our and our affiliates'
other various indentures and trusts. We and our affiliates also maintain credit
and liquidity facilities and conduct other banking transactions with
12
JPMorgan Chase Bank in the ordinary course of our businesses. In addition,
affiliates of JPMorgan Chase Bank are lessors with respect to three leases with
PNM, our principal subsidiary, relating to the sale and leaseback of portions of
Unit 1 and Unit 2 of the Palo Verde Nuclear Generating Station.
The Trustee may resign at any time by giving us written notice or be
removed at any time by an act of the holders of a majority in principal amount
of any particular series of debt securities then outstanding delivered to the
Trustee and PNM Resources. In addition, provided that no event of default has
occurred or is continuing, we may appoint a new trustee upon delivering to the
Trustee, a resolution of our board of directors appointing a successor trustee
and the successor's acceptance of our appointment. In this case, the Trustee
will be deemed to have resigned and the successor will be deemed to have been
appointed as trustee in accordance with the Indenture. In any event, the
resignation or removal of the Trustee, and no appointment of a successor
trustee, will be effective until the acceptance of appointment by a successor
trustee. (See Section 6.10)
The Trustee will perform only those duties that are specifically set
forth in the Indenture unless an event of default under the Indenture occurs and
continues. In case an event of default occurs and continues, the Trustee will
exercise the same degree of care and skill as a prudent individual would
exercise in the conduct of his or her own affairs. (See Section 6.01)
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 1,121,495
newly issued shares on June 11, 2003 to the PNM Resources, Inc. Employees'
Retirement Plan Trust, 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.
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
13
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.
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;
14
- 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.
A prospectus supplement will describe the terms of any preferred stock
being offered, including whether the preferred stock will be listed on any
securities exchange.
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);
- 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.
15
DESCRIPTION OF PURCHASE CONTRACTS
AND PURCHASE CONTRACT UNITS
We may issue purchase contracts for the purchase or sale of our
securities or securities of any entity unaffiliated with us, a basket of such
securities, an index or indices of such securities or any combination of the
above as specified in the applicable prospectus supplement. Each purchase
contract will entitle the holder thereof to purchase or sell, and obligate us to
sell or purchase, on specified dates, such securities, at a specified purchase
price, all as set forth in the applicable prospectus supplement. We must,
however, satisfy our obligations, if any, with respect to any purchase contract
by delivering the cash value thereof, as set forth in the applicable prospectus
supplement. The applicable prospectus supplement will also specify the methods
by which the holders may purchase or sell such securities, any acceleration,
cancellation or termination provisions or other provisions relating to the
settlement of a purchase contract and, if applicable, the identity of any of our
subsidiaries guaranteeing our obligations with respect to such purchase
contracts. Purchase contracts may require holders to satisfy their obligations
thereunder when the purchase contracts are issued. Our obligation to settle such
pre-paid purchase contracts on the relevant settlement date may constitute
indebtedness. Accordingly, the pre-paid purchase contracts may be issued under
an indenture.
The purchase contracts may be issued separately or as part of a
purchase contract unit that consists of (a) a purchase contract and (b) debt
securities, U.S. Treasury securities or other debt obligations of third parties,
that may be used to secure the holders' obligations under a purchase contract.
The purchase contracts may require us to make periodic payments to the holders
of the purchase contracts or vice versa, and such payments may be unsecured or
prefunded on some basis. The purchase contracts may require holders to secure
their obligations under these purchase contracts in a specified manner.
A prospectus supplement will describe the terms of any purchase
contracts or purchase contract units being offered. The description in the
prospectus supplement will not necessarily be complete, and reference will be
made to the purchase contracts and, if applicable, collateral or depositary
arrangements, relating to purchase contracts or purchase contract units. Some of
the important United States federal income tax considerations applicable to the
purchase contract units and purchase contracts will be discussed in the related
prospectus supplement.
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 that affect us 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.
16
PLAN OF DISTRIBUTION
We may sell the securities offered pursuant to this prospectus in one
or more series in any of three ways: (1) through underwriters or dealers; (2)
through agents; or (3) directly to a limited number of purchasers or to a single
purchaser.
THROUGH UNDERWRITERS OR DEALERS
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at the
initial public offering price or at varying prices determined at the time of the
sale. The offered securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more managing underwriters. The underwriter or underwriters
with respect to offered securities will be named in the prospectus supplement
relating to the offering and, if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover page of the
prospectus supplement. Unless otherwise set forth in the prospectus supplement,
the obligations of the underwriters to purchase the offered securities will be
subject to some conditions precedent, and the underwriters will be obligated to
purchase all of the offered securities if any are purchased.
THROUGH AGENTS
Offered securities may be sold through agents designated by us from
time to time. A prospectus supplement will set forth the name of any agent
involved in the offer or sale of the offered securities for which the prospectus
supplement is delivered as well as any commissions that we will pay to that
agent. Unless otherwise indicated in the prospectus supplement, that agent will
be acting on a reasonable best efforts basis for the period of its appointment.
DIRECTLY
We may sell the offered securities directly to one or more purchasers.
In this case, no underwriters or agents would be involved.
GENERAL INFORMATION
The prospectus supplement with respect to the offered securities will
set forth the terms of the offering of the offered securities, including:
- the name or names of any underwriters, dealers or agents;
- the purchase price of the offered securities and the proceeds to us
from their sale;
- any underwriting discounts, agents' commissions and other items
constituting underwriting compensation;
- any initial public offering price; and
- any discounts or concessions allowed or reallowed or paid to dealers.
Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
17
If so indicated in the prospectus supplement with respect to the
offered securities, we may authorize agents, underwriters or dealers to solicit
offers by certain specified institutions to purchase the offered securities from
us at the initial public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a
specified date in the future. These contracts will be subject to the conditions
set forth in the prospectus supplement, which will also set forth the commission
payable for solicitation of the contracts.
Agents, underwriters and dealers may be entitled under agreements
entered into with us to indemnification by us against certain civil liabilities,
including certain liabilities under the Securities Act of 1933, or to
contribution by us with respect to payments which those agents, underwriters and
dealers may be required to make in respect thereof.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference from the Company's 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 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 validity of the offered securities will be passed upon for us by
Keleher & McLeod, P.A., Albuquerque, New Mexico, and, for any underwriters,
dealers or agents by Pillsbury Winthrop LLP, New York, New York. In giving their
opinions, Keleher & McLeod, P.A. may rely as to all matters of New York law upon
the opinion of Pillsbury Winthrop LLP and Pillsbury Winthrop LLP may rely as to
all matters of New Mexico law upon the opinion of Keleher & McLeod, P.A.
Pillsbury Winthrop LLP has rendered, and may in the future render, legal
services to us and our subsidiaries.
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
SEC Filing Fees................................................................................ $ 40,450
Printing and Engraving Expenses*............................................................... 5,000
Accounting Fees and Expenses*.................................................................. 15,000
Legal Fees and Expenses*....................................................................... 100,000
Fees and Expenses of Trustee*.................................................................. 2,000
Transfer Agent and Registrar Fees*............................................................. 10,000
Rating Agency Fees*............................................................................ 40,000
Miscellaneous*................................................................................. 2,550
--------
Total Expenses*......................................................................... $215,000
========
-------------------------
* 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 and to advance expenses to an
employee or agent of the corporation to the same extent that it may
II-1
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.
II-2
ITEM 16. EXHIBITS.
Exhibit No. Description of Exhibit
----------- ----------------------
1.1** Form of Underwriting Agreement for Debt Securities.
1.2** Form of Underwriting Agreement for Preferred Stock.
1.3** Form of Underwriting Agreement for Purchase Contract Units.
3.1* 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).
3.2* 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).
4.1 Form of Indenture for Debt Securities.
4.2** Form of Officers' Certificate establishing Debt Securities (with form of debt security attached).
4.3** Form of Purchase Contract Agreement.
4.4** Form of Pledge Agreement.
4.5** Form of Remarketing Agreement.
5.1** Opinion of Keleher & McLeod, P.A., counsel for PNM Resources, Inc.
5.2** Opinion of Pillsbury Winthrop LLP.
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
12.2 Statement Regarding Computation of Ratio of Earning to Combined Fixed Charges and Preferred
Stock Dividends.
15 Letters regarding unaudited interim financial information.
23.1 Consent of Deloitte & Touche LLP.
23.2** Consent of Keleher & McLeod, P.A. (to be included in Exhibit 5.1).
23.3** Consent of Pillsbury Winthrop LLP (to be included in Exhibit 5.2).
24 Power of Attorney is contained on the signature page of this registration statement.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the JPMorgan Chase
Bank, to act as Trustee for the Debt Securities.
25.2** Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of JPMorgan Chase Bank,
to act as Purchase Contract Agent for the Purchase Contract Units.
---------------------
*Incorporated herein by reference as indicated.
**To be filed by an amendment or pursuant to a report to be filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, if applicable.
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;
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.
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
Jeffry E. Sterba Executive Officer; Director
(Principal Executive Officer)
/s/ John R. Loyack Senior Vice President and Chief June 12, 2003
John R. Loyack Financial Officer
(Principal Financial Officer)
/s/ Robin Lumney Vice President, Controller and June 12, 2003
Robin Lumney Chief Accounting Officer
(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
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4.1 Form of Indenture for Debt Securities.
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
12.2 Statement Regarding Computation of Ratio of Earning to Combined Fixed Charges and Preferred
Stock Dividends.
15 Letters regarding unaudited interim financial information.
23.1 Consent of Deloitte & Touche LLP.
24 Power of Attorney is contained on the signature page of this registration statement.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of the JPMorgan Chase
Bank, to act as Trustee for the Debt Securities.