As filed with the Securities and Exchange Commission on May 24, 2001
Registration No.________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PUBLIC SERVICE COMPANY OF NEW MEXICO
New Mexico 85-0019030
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2700
PUBLIC SERVICE COMPANY OF NEW MEXICO
MASTER EMPLOYEE SAVINGS PLAN AND TRUST, AS AMENDED
(full title of the Plan)
MAX MAERKI
Senior Vice President and Chief Financial Officer
PUBLIC SERVICE COMPANY OF NEW MEXICO
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2700
The Commission is requested to mail signed copies of all
orders, notices and communications to :
C. L. MOORE
KELEHER & McLEOD, P.A.
414 Silver Avenue, S. W.
Albuquerque, New Mexico 87103
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM AGGREGATE REGISTRATION
TO BE REGISTERED (1) REGISTERED OFFERING PRICE OFFERING FEE
PER SHARE (2) PRICE (2)
Common Stock $5.00 100,000 Shares $36.75 $3,675,000 $919
par value
(1) 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(s) described herein.
(2) Estimated pursuant to Rule 457 solely for the purpose of calculating
the registration fee on the basis of the average of high and low sale
price of the Registrant's Common Stock on the New York Stock Exchange
Composite Transaction Tape on May 22, 2001.
PART I
INFORMATION REQUIRED
IN PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*The information called for by Part I of Form S-8 is not being filed
with or included in this Form S-8 in accordance with Rule 428 under the
Securities Act of 1933, as amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been filed with the Securities and
Exchange Commission by the Company (File No. 1-6986) are incorporated by
reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 2000, as filed on February 22, 2001 (the "2000
10-K Report"), as amended on April 30, 2001 and May 4, 2001.
2. Annual Report on Form 11-K for the fiscal year ended December
31, 2000 for the Public Service Company of New Mexico Master
Employee Savings Plan and Trust, as Amended, as filed on May 24,
2001.
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001, as filed on May 15, 2001
("3/31/01 10-Q Report").
4. The Company's Current Reports on Form 8-K filed January 18,
2001, January 23, 2001, January 25, 2001, January 25, 2001,
February 26, 2001, February 28, 2001, March 1, 2001, March 20,
2001, March 28, 2001, April 11, 2001, April 11, 2001, April
13, 2001, April 16, 2001, April 18, 2001, April 18, 2001, May,
2, 2001, May 2, 2001, and May 18, 2001.
5. The description of the Company's Common Stock contained in its
registration statement on Form S-3, File No. 333-10993, as filed
on August 29, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the
filing date of the 2000 10-K Report and prior to the filing of a post-effective
amendment which indicates that all securities have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable. It is currently contemplated that the securities
will not be original issuance securities. If that situation should
change, an appropriate opinion of counsel will be filed.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 7 of Article II of the Company's By-Laws contains the following
provisions with respect to indemnification of directors and officers.
Each person who shall have served as a director or an officer
of the Company, or, at the request of the Company, as a
director or an officer of any other corporation, partnership
or joint venture, whether profit or not profit, in which the
Company (a) owns shares of capital stock, (b) has an ownership
interest, (c) is a member, or (d) is a creditor, and
regardless of whether or not such person is then in office,
and the heirs, executors, administrators and personal
representatives of any such person shall be indemnified by the
Company to the full extent of the authority of the Company to
so indemnify as authorized by the law of New Mexico.
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. At the Company's 1987 Annual Meeting of Stockholders,
the stockholders approved certain agreements with the Company's directors and
officers relating to indemnification of directors and officers. Such agreements
have been entered into with each director and officer. The agreements 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 the Company out of its foregoing indemnification provisions, subject
to certain exclusions and to the policy limits.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
4.1 Restated Articles of Incorporation of the Company as
amended through May 10, 1985 (incorporated by reference to
Exhibit 4-(b) to Registration Statement No. 2-99990 of the
Company).
4.4 Bylaws (incorporated by reference to Exhibit 3.2 to
3/31/01 10-Q Report).
15.0 Letter Re: Unaudited Interim Financial Information.
23.1 Consent of Independent Public Accountants.
The registrant has submitted the Plan and will submit any amendments thereto to
the Internal Revenue Service ("IRS") in a timely manner and will make all
changes required by the IRS to maintain the Plan's qualification.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers of sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed 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.
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(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 Rule 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous offering.
(5) 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 Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the 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 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.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Albuquerque, State of New Mexico, on May 24,
2001.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /s/ J. E. Sterba
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J. E. Sterba, Chairman, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated. Each person whose signature appears below
hereby authorizes Jeffry Sterba, Max Maerki, and John Loyack, and each of them,
as attorneys-in-fact, to sign in his or her name and behalf, individually and in
each capacity designated below, and to file any amendments, including
post-effective amendments, to this registration statement.
Signature Capacity Date
/s/J. E. Sterba Chairman, President and Chief Executive May 24, 2001
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J.E. Sterba Officer (Principal Executive Officer);
Director
/s/M. H. Maerki Senior Vice President and Chief Financial May 24, 2001
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M. H. Maerki Officer (Principal Financial Officer)
/s/J. Loyack Vice President Corporate Controller May 24, 2001
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J. Loyack and Chief Accounting Officer (Principal
Accounting Officer)
/s/J. T. Ackerman Director May 24, 2001
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J. T. Ackerman
/s/R. G. Armstrong Director May 24, 2001
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R. G. Armstrong
_______________ Director ___________
J. A. Godwin
/s/M. Lujan, Jr. Director May 24, 2001
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M. Lujan, Jr.
/s/B. F. Montoya Director May 24, 2001
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B. F. Montoya
/s/ T. F. Patlovich Director May 24, 2001
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T. F. Patlovich
/s/R. M. Price Director May 24, 2001
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R. M. Price
/s/P. F. Roth Director May 24, 2001
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P. F. Roth
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THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the MESP Committee has duly caused this registration statement to be signed on
the Plan's behalf by the undersigned thereunto duly authorized, in the city of
Albuquerque and State of New Mexico, on the day of May 24, 2001.
PUBLIC SERVICE COMPANY OF NEW MEXICO
MASTER EMPLOYEE SAVINGS PLAN AND TRUST,
AS AMENDED
By: MESP Committee
By: /s/ Ramon M. Gonzales
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Ramon M. Gonzales
Chairperson