As filed with the Securities and Exchange Commission on December 20, 2002
REGISTRATION NO. 333-100186
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
PRE-EFFECTIVE
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------
PNM RESOURCES, INC.
(Exact name of the registrant as specified in its charter)
NEW MEXICO ALVARADO SQUARE 85-0468296
(State or other jurisdiction of ALBUQUERQUE, NEW MEXICO 87158 (I.R.S. Employer
incorporation or organization) (505) 241-2700 Identification Number)
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
M.H. MAERKI
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
PNM RESOURCES, INC.
ALVARADO SQUARE
ALBUQUERQUE, NEW MEXICO 87158
(505) 241-2700
(name, address, including zip code, and telephone number,
including area code, of agent for service)
The commission is requested to mail signed copies of all
orders, notices and communications to:
C. L. MOORE
KELEHER & MCLEOD, P.A.
414 Silver Avenue, S. W.
Albuquerque, New Mexico 87103
----------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
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, 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, please 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. [ ]
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell nor is it an offer to buy these securities in any jurisdiction where the
offer or sale is not permitted.
SUBJECT TO COMPLETION DATED _______, 2002
PROSPECTUS
PNM RESOURCES, INC
PNM DIRECT PLAN
[3,555,859] SHARES
COMMON STOCK
(NO PAR VALUE)
This prospectus relates to up to an aggregate of [3,555,859] shares of
common stock, no par value, of PNM Resources, Inc. that may be offered in
connection with the Amended and Restated PNM Resources, Inc. PNM Direct Plan, or
Plan. The Plan amends and restates the PNM Resources, Inc. PNM Direct Plan dated
December 31, 2001, or the prior plan.
The Plan provides investors with a convenient and economical way to
purchase shares of our common stock, and to reinvest cash dividends in
additional shares of our common stock. Below are some of the changes reflected
in the amended Plan:
o The maximum investment has changed from $60,000 annually to a
monthly maximum investment of $10,000.
o Investments of cash and cash dividends in our common stock
will normally be made within 5 business days of receipt.
o If you hold less than 100 shares you will be automatically
enrolled in the full dividend reinvestment portion of the
Plan.
o Interested new investors and participants may enroll or make
changes to their individual plan options on-line through
Investor ServiceDirect at www.melloninvestor.com.
o Employees of PNM Resources and its subsidiaries may continue
to participate in the Plan via payroll deduction only until
the implementation of the PNM Resources, Inc. Employee Stock
Purchase Plan.
o Under certain circumstances, PNM Resources may waive the
maximum monthly investment limit of $10,000 in order to raise
additional capital through the sale of newly issued shares
under the Plan.
o The Plan Administrator is now Mellon Bank, N.A.
Unlike an individual stock brokerage account, the timing of purchases and
sales is subject to the provisions of the Plan. You should carefully read this
prospectus to find out more about the Plan. If you wish to continue your
participation in the Plan, you do not need to do anything at this time. If you
are currently a participant in the prior plan, and after reviewing this
prospectus, you do not wish to continue participation in the Plan, you should
contact the Plan Administrator. You may terminate your participation in the Plan
at any time.
The Plan does not represent a change in the dividend policy of PNM
Resources. The payment of dividends is at the discretion of our board of
directors and will depend on future earnings, our financial condition and other
factors. Our board may change the amount and timing of dividends at any time and
without notice.
The common stock of PNM Resources is traded on the New York Stock Exchange
under the ticker symbol PNM. The closing price of our common stock on ,
2002 was $ . Our principal executive offices are located at Alvarado
Square, Albuquerque, NM 87158. The 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 HAS DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is _______, 2002.
CONTENTS
WHERE YOU CAN FIND MORE INFORMATION...........................................1
PNM RESOURCES.................................................................3
SUMMARY OF THE PLAN...........................................................4
TERMS AND CONDITIONS OF THE PLAN..............................................7
OTHER PROVISIONS.............................................................13
USE OF PROCEEDS..............................................................17
PLAN OF DISTRIBUTION.........................................................17
TRANSFER AGENT AND REGISTRAR.................................................18
EXPERTS......................................................................18
LEGAL OPINION................................................................19
APPENDIX A...................................................................20
APPENDIX B...................................................................21
-i-
WHERE YOU CAN FIND MORE INFORMATION
PNM Resources files reports, proxy statements and other information
with the Securities and Exchange Commission, or 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 rooms and their copy
charges. You may also inspect our SEC reports and other information at the New
York Stock Exchange, or NYSE, 20 Broad Street, New York, New York 10005.
In connection with this offering, we have filed with the SEC a
registration statement on Form S-3 under the Securities Act of 1933, as amended
("Securities Act"). As permitted by SEC rules, this prospectus omits certain
information included in the registration statement. For a more complete
understanding of the securities we may offer, you should refer to the
registration statement, including its exhibits.
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 and
information we file later with the SEC will automatically update and supersede
such information. Any future filings made with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), until the Plan is terminated will comprise the incorporated documents.
This prospectus incorporates by reference the documents set forth below that we
have filed previously with the SEC.
SEC FILINGS (FILE NO. 333-32170) PERIOD/DATE
-------------------------------- -----------
o Annual Report on Form 10-K................................ Year ended December 31, 2001 and filed with
the SEC on March 26, 2002
o Current Reports on Form 8-K............................... Filed January 15, 2002, January 23, 2002, January 24,
2002, February 21, 2002, February 27, 2002, March 14,
2002, March 19, 2002, April 5, 2002, April 9, 2002,
April 19, 2002, April 24, 2002, May 10, 2002, May 23,
2002, June 10, 2002 (two), June 18, 2002, July 10,
2002, July 12, 2002, July 17, 2002, July 18, 2002,
July 23, 2002, July 24, 2002, August 14, 2002, August
19, 2002, August 23, 2002, September 13, 2002,
September 18, 2002, September 26, 2002, September 27,
2002, October 4, 2002, October 11, 2002, October 15,
2002, October 22, 2002, October 30, 2002, November
14, 2002, December 10, 2002, December 11, 2002 (two),
December 19, 2002, and _______.
o Definitive Proxy Statement on Schedule 14A................ Filed April 10, 2002, in connection with
our 2002 annual meeting of shareholders
1
o Quarterly Reports on Form 10-Q............................ Quarter ended March 31, 2002 and filed
with the SEC on May 15, 2002
Quarter ended June 30, 2002 and filed
with the SEC on August 14, 2002
Quarter ended September 30, 2002 and
filed with the SEC on November 12, 2002
o Description of Capital Stock.............................. The description of PNM Resources' common stock, no
par value, contained in PNM Resources' Current Report
on Form 8-K filed December 31, 2001, and any
amendment or reports filed for the purpose of
updating such description
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
Internet address: www.pnm.com
(505)241-2477
2
PNM RESOURCES, INC.
PNM Resources, Inc. is a holding company of energy and energy-related
companies incorporated in the State of New Mexico. We conduct all of our
operations through our subsidiaries.
Our principal subsidiary is Public Service Company of New Mexico, or
PNM. A combined electric and gas utility, PNM generates, transmits and sells
electricity and provides natural gas distribution service to residential,
business and industrial customers in New Mexico. PNM also sells electric power
on the wholesale market in the Western U.S.
We are exempt from registration as a public utility holding company
pursuant to Section 3(a)(1) of the Public Utility Holding Company Act of 1935.
Our executive office is located at Alvarado Square, Albuquerque, New Mexico
87158, and our telephone number is (505) 241-2700.
3
SUMMARY OF THE PLAN
The following summary of the Plan may omit certain information that may
be important to you. If you wish to receive a copy of the actual text of the
Plan as filed with the Securities and Exchange Commission, please contact: PNM
Resources, Inc., Investor Relations, Alvarado Square, Albuquerque, New Mexico
87158, telephone (505) 241-2477.
PURPOSE
The purpose of the Plan is to provide new and existing shareholders
with a convenient and economical method of investing cash and cash dividends in
shares of our common stock. Since new shares of our common stock, or shares held
in our treasury, may be purchased directly from us, we may receive additional
funds for general corporate purposes.
Nothing in this prospectus or other Plan information represents a
recommendation by PNM Resources or anyone else that any person buy or sell PNM
Resources common stock. We urge you to read this prospectus thoroughly before
you make your own independent decision regarding whether or not to invest in PNM
Resources common stock through this Plan.
The value of shares of PNM Resources common stock may increase or
decrease from time to time. A Plan participant, like the owner of directly held
shares, bears all risk of loss that may result from market fluctuations in the
price of our common stock. Unlike an individual stock brokerage account,
however, a Plan participant does not have control or authority to direct the
price or time at which common stock held under the Plan for the Participant is
purchased or sold. We cannot guarantee that shares purchased under the Plan
will, at any particular time, be worth more than their purchase price. The
Securities Investor Protection Corporation, the Federal Deposit Insurance
Corporation, or any other entity does not insure Plan accounts.
PARTICIPATION--HOW TO JOIN
FIRST TIME INVESTORS:
After you have read this prospectus, you may complete the Enrollment
Form included or, you may enroll on-line through Investor ServiceDirect at
www.melloninvestor.com. Click the "Stock Purchase Plans" button, at the "easy
search" screen select the ticker symbol button and enter PNM, then follow the
instructions for authorizing your initial investment and indicate whether you
want to participate in the full or partial dividend reinvestment portion of the
Plan.
If you purchase or currently own less than 100 shares, you will
automatically be enrolled in the dividend reinvestment portion of the Plan,
unless you request to receive cash dividends. All investments must be made in
U.S. dollars and drawn on a U.S. bank.
You may make your initial investment by:
1. authorizing an electronic debit of at least $50 but not more
than $10,000 from your U.S. bank account. This alternative is
available to on-line investors only; or
2. mailing a check for at least $50 but not more than $10,000
drawn on a U.S. bank account to the Plan administrator along
with your Enrollment Form.
4
Follow the instructions on the on-line Enrollment Wizard to indicate
your selection and, if paying by check, print out the instruction sheet and
submit the sheet as indicated with your check, together with your Enrollment
Form. You can then make an election to have your dividends reinvested and/or
make optional cash investments as described more fully below.
The Plan Administrator may confirm certain transactions affecting the
amount of shares in your Plan account and produce Plan statements in paper form
from time to time and will mail these to you at the address you give when you
enroll in the Plan.
CURRENT SHAREHOLDERS:
Our shareholders whose common stock is registered with us are
automatically eligible to participate in the dividend reinvestment portion of
the Plan, and may make optional cash investments and sell shares through the
Plan. If you are a shareholder of record holding less than 100 shares, you will
automatically be enrolled in the full dividend reinvestment portion of the Plan
and your quarterly PNM Resources dividend will be applied to purchasing
additional shares of stock. If you own fewer than 100 shares but would prefer to
have your dividend paid to you in cash, you must contact the Plan Administrator
and request a cash payment. As a shareholder participating in the Plan with less
than 100 shares, you will have access to your account on-line through Investor
ServiceDirect at www.melloninvestor.com and by telephone at 1-877-663-7775 and
you will receive annual account statements, but you may no longer elect the
partial dividend reinvestment option.
If you are a shareholder of record owning 100 shares or more you may
elect to reinvest all or part of your dividends pursuant to the Plan. As a
shareholder participating in the Plan with more than 100 shares, you will have
access to your account on-line through Investor ServiceDirect at
www.melloninvestor.com and by telephone at 1-877-663-7775 and you will receive
quarterly account statements.
Dividend payments not reinvested will be paid to you in the usual
manner.
FOR CURRENT SHAREHOLDERS AND NEW INVESTORS:
You may sign up for automatic monthly investments, change your
investment amount or make additional investments at any time by accessing your
account on-line through Investor ServiceDirect at www.melloninvestor.com and
using the account management feature or by telephone at 1-877-663-7775.
You may establish additional investment accounts for children or
dependents by following the instructions on the on-line Enrollment Wizard
applicable to custodial or trust accounts.
HOW THE OPTIONAL CASH INVESTMENTS WORK
In addition to having your dividend payments reinvested in our common
stock, you may buy additional shares by investing a "minimum" of $50 at any one
time not to exceed the "maximum" of $10,000 per month. You may submit your
optional cash investments by check, money order or by authorizing electronic
transfers. Do not send cash. You can make individual automatic deductions from
your bank account through Investor ServiceDirect by accessing your account
on-line through the Plan Administrator's website www.melloninvestor.com. Upon
receipt of the funds, the Plan Administrator will normally invest initial and
optional cash investments at least once every five (5) business days.
5
Optional cash investments of more than $10,000 per month by any current
participant and any initial cash investment by a new investor in excess of
$10,000 may only be made pursuant to a request for waiver that has been granted
by us as described in more detail on page 13 of this prospectus. Investors may
make a one-time initial or optional cash investment or invest regularly over a
period of time.
YOUR FUNDS WILL BE FULLY INVESTED
Funds invested pursuant to the Plan are fully invested in whole and
fractional shares (computed to four decimal places) of our common stock either
through the purchase of shares directly from us or the purchase of shares in the
open market (or through a combination of these methods). We pay dividends on
both whole shares and fractions of shares.
SHARE SAFEKEEPING
For your convenience, shares purchased through the Plan will be
maintained by the Plan Administrator in non-certificated (book-entry) form.
Additionally, the Plan offers a "safekeeping" service whereby you may deposit,
free of any service charges, certificates representing your shares of common
stock and have your ownership of such common stock maintained on the Plan
Administrator's records as part of your account. This feature protects against
loss, theft or destruction of stock certificates. A share certificate will be
delivered to you free of charge, upon request.
YOU MAY SELL, WITHDRAW OR TRANSFER YOUR SHARES AT ANY TIME
You may sell or withdraw shares of our common stock credited to your
account, including those shares deposited into the Plan for safekeeping, through
the Plan. Currently there is a $15.00 processing fee, plus a trading fee of
$0.06 per share, for sale transactions and liquidations. A statement will be
mailed to you for each month in which a transaction takes place. Additionally,
you may transfer or make gifts to others of our common stock by contacting the
Plan Administrator. There is no fee for this service.
PLAN ADMINISTRATOR
Mellon Bank N.A. will administer the Plan and act as agent for the
participants. Mellon Bank N.A. has designated its affiliates, Mellon Investor
Services and FutureShare Financial LLC, and other agents to perform certain
services for the Plan.
You may contact the Plan Administrator as directed below:
Call Mellon Investor Services 1-877-663-7775
On-line over the Internet at: www.melloninvestor.com
You may write the Plan Administrator at the following address:
Mellon Investor Services
P.O. Box 3338
South Hackensack, NJ 07606-1938
Please include your daytime telephone number, your social security or
tax I.D. number and a reference to PNM Resources, Inc. on all correspondence.
6
TERMS AND CONDITIONS OF THE PLAN
AM I ELIGIBLE TO PARTICIPATE IN THE PLAN?
You are eligible to participate in the Plan if you meet the
requirements outlined below.
o IF YOU DO NOT CURRENTLY OWN OUR STOCK. If you do not currently
own any of our stock you may join the Plan, after receiving a
copy of this prospectus, by making an initial investment of at
least $50, but not more than $10,000. All U.S. citizens, U.S.
residents and non-U.S. residents are eligible to participate
in the Plan, whether they are current shareholders or not. In
all cases, however, investments must be made in U.S. currency
drawn on a U.S. bank. Prior to investing in our common stock,
each participant is responsible for reviewing the applicable
laws of his or her country of residence to determine if there
are any restrictions on investment.
You can get started in the Plan by enrolling on-line through
Investor ServiceDirect at www.melloninvestor.com (see
Participation - How to Join) or by returning a completed
Enrollment Form to the Plan Administrator, along with your
check or money order payable to Mellon Bank N.A. Do not send
cash. The Plan Administrator will arrange for the purchase of
shares for your account but will not pay interest on amounts
held pending investment. Please allow two (2) weeks for your
account to be established, initial shares to be purchased and
a statement to be mailed to you.
o IF YOU CURRENTLY OWN OUR STOCK. If you already own less than
100 shares of our stock and the shares are registered in your
name, you are automatically enrolled in the full dividend
reinvestment portion of the Plan. If you already own 100
shares or more of our stock and the shares are registered in
your name, you may join the dividend reinvestment portion
and/or the optional purchase portion of the Plan by enrolling
on-line (see Participation - How to Join) or by returning a
completed Enrollment Form to the Plan Administrator.
If your shares are held in a brokerage, bank or other
intermediary account, and you wish to participate directly in
the Plan, you should instruct your broker, bank or trustee to
register some or all of your shares of our common stock
directly in your name.
o IF YOU ARE ALREADY ENROLLED. If you are currently enrolled in
the prior plan, which is superseded by the Plan, and do not
want to change your participation, no further action is
required for your continued participation. However, if you
wish to change your participation in any way (e.g., from
partial to full reinvestment), you must submit a new
Enrollment Form or access the account management feature
on-line through Investor ServiceDirect at
www.melloninvestor.com or by telephone at 1-877-663-7775. If
you own less than 100 shares of our stock, you will no longer
be able to elect partial reinvestment of cash dividends.
WHAT ARE MY INVESTMENT OPTIONS?
Once enrolled in the Plan, you may purchase additional shares of common
stock through reinvestment of your dividends and/or by cash investments as
described below:
o DIVIDEND REINVESTMENT. If you are a shareholder of record and
you own less than 100 shares, you will automatically be
enrolled in the Plan and will have your dividends reinvested
in additional shares (unless you contact the Plan
Administrator as directed on page
7
6 of this prospectus to request cash dividends). In addition,
you will receive an annual statement and will have electronic
access to your account on-line through Investor ServiceDirect
at www.melloninvestor.com or by telephone at 1-877-663-7775.
If you are a shareholder of record owning 100 shares or more,
you may choose to reinvest all or a portion of the regular
cash dividends paid on your shares held in the Plan toward the
purchase of additional shares of our common stock. In
addition, you will receive a quarterly account statement and
have electronic access to your account on-line through
Investor ServiceDirect at www.melloninvestor.com or by
telephone at 1-877-663-7775.
You may change your dividend reinvestment election at any time
by notifying the Plan Administrator. For a particular dividend
to be reinvested, your notification must be received before
the record date for that dividend. (The record date is
approximately 14 days before the dividend payment date.)
You may, of course, choose not to reinvest any of your
dividends, in which case the Plan Administrator will remit any
dividends to you by check or automatic deposit to a bank
account you designate.
If you elect to reinvest your dividends, you must choose one
of the following:
o FULL DIVIDEND REINVESTMENT. This means you
will purchase additional shares through the
Plan by investing all your cash dividends.
o PARTIAL DIVIDEND REINVESTMENT. If you own
100 shares or more and choose to reinvest
less than all your dividends, you may
receive a cash dividend payment based on the
number of full shares you specify and
reinvest the dividends on all remaining
shares. This allows you to receive a fixed
amount of cash each quarter (assuming the
dividend stays the same).
o OPTIONAL CASH INVESTMENTS. You may purchase additional shares
of our common stock by using the Plan's optional cash
investment feature. You must invest at least $50 at any one
time but not more than $10,000 per month. Upon receipt of your
funds, the Plan Administrator will invest initial and
additional cash investments as promptly as practicable,
normally at least once every 5 business days.
Shares will be posted to your account in whole and fractional
shares immediately upon settlement, usually within 3 business
days. You will receive a confirmation of your transaction by
paper statement at the postal address you give us when you
enroll in the plan.
In the unlikely event that, due to unusual market conditions,
the Plan Administrator is unable to invest your funds within
35 days, the Plan Administrator will return the funds to you
by check. No interest will be paid on funds held by the Plan
Administrator pending investment.
For automatic monthly purchases, the amounts you have
authorized will be withdrawn from your banking account on the
24th day of each month, or the next succeeding business day if
the 24th falls on a weekend or holiday. The funds will be
credited to your account and invested within 5 business days
of receipt by the Plan Administrator.
The Plan Administrator will use your investment to purchase as
many full and fractional shares as possible. Fractional share
amounts will be computed to four decimal places.
8
You may make optional cash investments by sending a check or
money order (not cash) to the Plan Administrator payable to
Mellon Bank N.A., or by authorizing individual electronic
transfers from your bank account by accessing your account
on-line through Investor ServiceDirect at
www.melloninvestor.com. To facilitate processing of your
investment when you send a check or money order, please use
the transaction stub attached to your Plan statement. Mail
your investment and transaction stub to the address specified
on the statement. A $35 fee will be assessed for a check or
electronic debit that is returned for insufficient funds.
Please see the fee schedule attached as Appendix A.
HOW ARE MY SHARES TYPICALLY PURCHASED AND HOW IS THE PURCHASE PRICE FOR THE
SHARES DETERMINED?
Shares of our common stock purchased under the Plan will, at our
election, be newly issued shares purchased directly from us, treasury shares
purchased directly from us, shares purchased by a broker, or a combination
thereof. If shares are purchased under the Plan directly from us and by the Plan
Administrator through its broker, each participant's Plan account will be
credited with its pro rata portion of the number of shares purchased directly
from us and by the broker. We have full discretion as to whether the common
stock purchased under the Plan will be purchased on the open market or purchased
directly from us, based on our need for capital.
o COMMON STOCK PURCHASED IN THE OPEN MARKET. The investment
price of our common stock purchased in the open market with
reinvested dividends, with initial cash investments or with
optional cash investments will be the weighted average price,
including applicable brokerage trading fees, incurred in
connection with the purchase of such shares for the relevant
investment date. No interest will be paid on funds held by the
Plan Administrator pending investment. The Plan Administrator
will normally invest cash dividends within 5 business days of
the dividend payment date and will normally invest initial and
optional cash investments at least once every 5 business days.
The brokerage trading fee is currently 6 cents per share. We
will pay this fee for shares purchased with reinvested
dividends and so the weighed average price for such shares
will not include this trading fee. See Appendix A.
o COMMON STOCK PURCHASED DIRECTLY FROM US. The price of our
common stock purchased directly from us with reinvested
dividends, initial cash investments or optional cash
investments will be the average of the high and low sale
prices of shares of our common stock reported on the NYSE on
the dividend payment date, initial cash investment date or
optional cash investment date, as the case may be. No interest
will be paid on funds held by the Plan Administrator pending
investment. The Plan Administrator will normally invest
initial and optional cash investments at least once every 5
business days.
The "weighted average price" used to calculate the investment price of
open market purchases assumes the use of multiple open market purchases to
invest plan participant investments. For example, if plan investments required
the acquisition of 5,000 shares for allocation to 100 investors and the plan
needed the following three separate purchases in the open market to acquire the
5,000 shares, the weighted average would be calculated as follows:
1,000 shares @ $21.00 = $ 21,000
3,000 shares @ $21.25 = $ 63,750
1,000 shares @ $21.125 = $ 21,125
--------------
$105,875/5,000 = $21.175
=======
9
The same computational method, however, is not used for shares
purchased directly from us because shares purchased in the open market are based
upon specific open market transactions that need to be allocated to participants
at actual cost. Newly issued shares issued by the Company are not based on
specific transactions that need to be allocated but are based on the market, for
that day, which is best represented by an average of the low and the high prices
of the common stock for the entire day.
Thus, for shares purchased directly from the Company, the issuance
price of those shares will be based on the average of the high and low prices of
stock trades during the day. If, for example, there were only three trades on a
day, at prices indicated in the previous example for market purchases, the
average of the high and low prices would be $21.125 per share ((21.00+21.25)/2).
Your account will be credited with that number of shares, including
fractional shares computed to four decimal places, equal to the amount invested
with respect to your Plan account, divided by the price per share of such shares
for all purchases for all Plan participants during the applicable period.
YOU DO NOT HAVE CONTROL OR AUTHORITY TO DIRECT THE PRICE OR TIME AT WHICH COMMON
STOCK IS PURCHASED OR SOLD FOR PLAN ACCOUNTS. THEREFORE, YOU BEAR MARKET RISK
ASSOCIATED WITH FLUCTUATIONS IN THE PRICE OF COMMON STOCK AS THE PRICE OF COMMON
STOCK MAY GO UP OR DOWN BEFORE A PURCHASE OR SALE IS MADE FOR YOUR ACCOUNT.
Unless you request one, certificates for shares of common stock
purchased under the Plan will not be issued. The number of shares purchased for
your account under the Plan will be shown on your statement of account in
book-entry form.
Certificates for any number of whole shares credited to your account
under the Plan will be issued upon your request. Any remaining full shares and
fractions of a share will continue to be credited to your account. Certificates
for fractions of shares will not be issued.
HOW DO I SELL MY SHARES OUT OF THE PLAN?
You may sell any number of shares held in book-entry form by notifying
the Plan Administrator by phone at 1-877-663-7775, by accessing your account
on-line through Investor ServiceDirect at www.melloninvestor.com, or in writing.
Your sale request will be processed and your shares will, subject to market
conditions and other factors, generally be sold by the close of the trading day
for requests received by the Plan Administrator by 1:00 p.m. eastern time. The
sale price will be the weighted average price of all shares sold for Plan
participants during the period. Please note that the Plan Administrator cannot
and does not guarantee the actual sale date or price, nor can it stop or cancel
any outstanding sales or issuance requests. All requests are final. The Plan
Administrator will mail a check to you (less applicable sales fees) on the
settlement date, which is 3 business days after your shares have been sold.
Please allow an additional 5 to 7 business days from the settlement date for the
post office to deliver your check.
Currently, there is a $15.00 processing fee, plus a trading fee of
$0.06 per share, for sale transactions and liquidations.
Alternatively, you may choose to sell your shares through a stockbroker
of your choice, in which case you would have to request a certificate for your
shares from the Plan Administrator prior to such sale.
10
WHAT IS SAFEKEEPING?
Shares of our common stock that you buy under the Plan will be
maintained in your Plan account for safekeeping. You will receive a periodic
Plan statement detailing the status of your holdings. Safekeeping protects your
shares against loss, theft or accidental destruction. Safekeeping also provides
a convenient way for you to keep track of your shares. Only shares held in
safekeeping may be sold through the Plan.
If you own additional shares of our common stock in certificated form,
you may deposit your certificates into your Plan account, free of charge. To use
this service, send your certificates to Mellon Investor Services by registered
mail with written instructions to deposit them into your Plan account for
safekeeping. The Plan Administrator will provide loss insurance coverage for
your certificates with a value not exceeding $100,000 in any one shipping
package that is mailed to its address at 85 Challenger Road, Ridgefield Park,
New Jersey 07660 by USPS registered mail or by any of the following overnight
couriers: Airborne, DHL, Emery, ExpressMail, FedEx, Purolator, TNT and UPS. Do
not endorse the certificates or complete the assignment section.
Note: Mail loss insurance covers only the replacement of shares of stock and in
no way protects against any loss resulting from fluctuations in the value of
such shares.
MAY I GIFT MY SHARES OUT OF THE PLAN?
You may gift or transfer your shares to any recipient you choose by:
o making an initial $50 cash investment to establish an account
in the recipient's name or
o transferring shares from your account to the recipient.
You must transfer a whole number of shares unless you transfer your
entire account. You may transfer shares to new or existing shareholders. The
Plan Administrator will automatically place such new accounts in full dividend
reinvestment status. New participants, at their discretion, may elect another
option. If you participate in the dividend reinvestment portion of the Plan and
your request to either transfer all your shares or make a partial sale and
transfer the balance of your shares is received between the ex-dividend date
(the day after the last day during the quarter on which stock can be transferred
with the new owner receiving that quarter's dividend payout), and the dividend
record date, the processing of your request may be held until after your account
is credited with reinvested dividends.
You must have your signature guaranteed by a financial institution
participating in the Medallion Guarantee program. The Medallion Guarantee
program ensures that the individual signing the certificate or transfer
instructions is in fact the registered owner as the name appears on the stock
certificate or stock power.
If you need additional assistance, please contact the Plan
Administrator.
HOW DO I GET MY STOCK CERTIFICATES?
You may withdraw all or some of the shares from your Plan account by
notifying the Plan Administrator. Certificates will be issued for whole shares
only. If your request involves a fractional share, a check (less any applicable
fees) for the value of the fractional share will be mailed to you.
11
Certificates will be issued in the name(s) in which the account is
registered, unless otherwise instructed. If the certificate is issued in a name
other than that on your Plan account registration form, the signature on the
instructions or stock power must be guaranteed by a financial institution
participating in the Medallion Guarantee program, as described above.
WHAT ARE THE FEES RELATING TO PARTICIPATION IN THE PLAN?
The current fees are described in Appendix A. The Plan Administrator
will deduct the applicable fees from the investment amount or proceeds from a
sale.
HOW IS MY INVESTMENT TRACKED?
If you participate in the dividend reinvestment portion of the Plan and
you hold more than 100 shares, the Plan Administrator will mail you a quarterly
Plan statement showing all transactions (shares, amounts invested, purchase
prices) for your account, including year-to-date and other account information.
If you own less than 100 shares, you will receive an annual statement.
Supplemental statements or notices will be sent when you make an
initial or optional cash investment or a deposit, transfer or withdrawal of
shares.
Please retain your Plan statements to establish the cost basis of
shares purchased under the Plan for income tax and other purposes.
You should notify the Plan Administrator promptly of any change in
address since all notices, statements and reports will be mailed to your address
of record.
HOW DO I TERMINATE PARTICIPATION IN THE DIVIDEND REINVESTMENT PORTION OF THE
PLAN?
You may discontinue the reinvestment of your dividends at any time by
giving notice to the Plan Administrator. The Plan Administrator must receive
such notice before the close of business on the record date for any dividend
payment in order to terminate your dividend reinvestment participation prior to
such dividend payment date. The Plan Administrator will continue to hold your
shares unless you request a certificate for any full shares and a check for any
fractional share. You may also request the sale of all or part of any such
shares or have the Plan Administrator electronically transfer your shares to
your brokerage account.
After you terminate your participation in the dividend reinvestment
portion of the Plan, you may rejoin at any time by re-enrolling with the Plan
Administrator. However, the Plan Administrator has the right to reject such
enrollment if you repeatedly join and withdraw from the Plan, or for any other
reason. The Plan Administrator's exercise of such right is intended to minimize
unnecessary administrative expenses and to encourage use of the Plan as a
long-term shareholder investment service.
WHAT ARE THE MATERIAL FEDERAL INCOME TAX CONSEQUENCES OF MY PARTICIPATION IN THE
PLAN?
Your reinvested dividends will be treated for federal income tax
purposes in the same manner they would have been treated had you received such
dividends in cash on the applicable dividend payment date. Your tax basis in the
shares purchased will be equal to the amount of the cash dividends and optional
cash investments applied to the purchases of such shares. Your holding period
for the shares acquired pursuant to the Plan will begin on the day after the
date the shares are purchased. You may recognize gain or loss when your shares
(including fractional shares) are sold or otherwise disposed of in a taxable
exchange, whether by the Administrator on your behalf or by you upon withdrawal
of your
12
shares from the Plan. The amount of such gain or loss will be the
difference between the amount you receive for the shares and your tax basis in
such shares. YOU SHOULD CONSULT WITH YOUR OWN TAX ADVISER TO DETERMINE THE
PARTICULAR TAX CONSEQUENCES THAT MAY RESULT FROM YOUR PARTICIPATION IN THE PLAN
AND THE SUBSEQUENT SALE OR OTHER DISPOSITION OF SHARES ACQUIRED UNDER THE PLAN,
INCLUDING THE EFFECT OF ANY APPLICABLE STATE, LOCAL AND FOREIGN TAX LAWS.
OTHER PROVISIONS
HOW DO I VIEW THE STATUS OF MY ACCOUNT?
You can view the status of your account at any time by logging onto
Investor ServiceDirect at www.melloninvestor.com or by telephoning
1-877-663-7775 and entering your Social Security Number and the PIN number that
you establish the first time you access your account.
HOW DO I CHANGE OR STOP THE AUTOMATIC INVESTMENT FEATURE?
Simply access your account through Investor ServiceDirect on
www.melloninvestor.com or by telephoning 1-877-663-7775, choose the
"Purchase/Sell" menu and indicate your change in the "Periodic Purchase"
selection. Your request must be received at least three business days before the
24th day of the month.
PLAN MODIFICATION OR TERMINATION
We reserve the right to suspend, modify or terminate the Plan at any
time. You will receive notice of any such suspension, modification or
termination. We, together with the Plan Administrator, also reserve the right to
change any administrative procedures of the Plan.
SUSPENSION OR TERMINATION
We reserve the right to deny, suspend or terminate participation by a
shareholder who is using the Plan for purposes inconsistent with the intended
purpose of the Plan. In such event, the Plan Administrator will notify you in
writing and will continue to keep your shares safe but will no longer accept
optional cash investments or reinvest your dividends. The Plan Administrator
will issue a certificate to you upon request.
13
LIMITATION OF LIABILITY
The Plan provides that neither we nor the Plan Administrator in
administering the Plan nor any independent agent will be liable for any act done
in good faith or for the good faith omission to act in connection with the Plan.
This includes, without limitation, any claims of liability:
o for failure to terminate your account upon your death or
adjudicated incompetence prior to receiving written notice of
such death or adjudicated incompetence; or
o relating to purchase or sale prices reflected in your Plan
account or the dates of purchases or sales of your Plan
shares; or
o for any loss or fluctuation in the market value after purchase
or sale of such shares. The foregoing does not represent a
waiver of any rights you may have under applicable securities
laws.
HOW DO I MAKE AN INITIAL OR OPTIONAL CASH INVESTMENT OVER THE MAXIMUM MONTHLY
AMOUNT?
If you wish to make an initial or optional cash investment in excess of
$10,000 per month and be eligible for a potential discount from the market
price, you must obtain our prior written approval. To obtain our approval, you
must submit a request for waiver. To make this request, you should obtain a
"Request For Waiver" form by contacting Mellon's Waiver Department at
1-917-320-6300. Completed Request For Waiver forms should be sent to Mellon's
Waiver Department via facsimile at 1-917-320-6312 no later than 3 business days
prior to the pricing period start date set forth in Appendix B for the
applicable pricing period.
If we approve your request, Mellon will notify you via return
facsimile. You must then send the authorized amount to the Plan Administrator in
the form of a certified check, money order or electronic funds transfer drawn on
a U.S. bank. The Plan Administrator must receive your investment no later than
the close of business on the last day before the applicable pricing period start
date. These dates are listed in Appendix B of this prospectus. Any funds
received by the Plan Administrator after the applicable date will be returned to
the investor.
We also may make the foregoing information available on the
Investing-Shareholder Services segment of our website at www.pnm.com or on
another website we or Mellon may establish for this purpose from time to time.
We have the sole discretion whether to approve any request to make an
initial or optional cash investment in excess of the $10,000 monthly maximum. We
may grant those requests for waiver in order of receipt or by any other method
that we determine to be appropriate. We also may determine the amount that you
may invest pursuant to a waiver. In deciding whether to approve your request for
waiver, we may consider the following material factors:
o whether, at the time of your request, the Plan Administrator
is acquiring shares of common stock for the Plan directly from
us or in the open market or in privately negotiated
transactions with third parties;
o whether we need cash to fund a specific project at the current
time, at some time in the foreseeable future, or whether funds
can be used for a general operational purpose;
14
o if we decide that there is a need for additional funds, then
we would consider whether this Plan was the most beneficial
means of raising additional cash compared to an underwritten
offering or the issuance of new debt or the use of current
debt;
o whether the potential issue price is above or below book
value, the general stock market trends at the time of
consideration, the general utility trends regarding stock
prices at the time of consideration, and our recent stock
price trend;
o whether you have participated in the Plan in the past, your
current level of participation and whether you are known as a
short seller of stock;
o whether granting the waiver request will facilitate obtaining
new, diversified and long-term investment in PNM Resources
through the Plan; and
o whether the total amount of waiver requests exceeds our
cash-raising goal and if so we may adjust potential
investments down if the requests are greater than required to
meet our goal.
We will probably not grant waiver requests when the Plan Administrator
is acquiring shares in the open market or through privately negotiated
transactions. In addition, if, at the time of your request, we do not need
additional funds, determine that issuing new shares is not the most beneficial
means of obtaining additional funds, or determine that the purchase price is
below book value, then we may not grant your waiver request.
If you do not receive a response from us within 3 business days of
submitting your waiver request, you should assume that we have denied your
request.
If requests for a waiver are submitted for any pricing period for an
aggregate amount in excess of the amount we are then willing to accept, we may
honor these requests in order of receipt, or by any other method that we
determine, in our sole discretion, to be appropriate. In making this
determination we may consider the make-up of our shareholder base and existing
ownership levels. Currently, our stock is held by approximately 90%
institutional investors and 10% retail investors. Our top ten shareholders own
almost 40% of the outstanding shares. Our goal is to increase diversity of our
shareholder base by lowering the percentage ownership of our top ten
shareholders and by increasing the number of both institutional and retail
shareholders. We believe that increasing the diversity of our shareholder base
reduces the risk of a single shareholder or a small number of shareholders
creating significant movements in our stock price. A lack of shareholder
diversity may increase volatility and could negatively impact shareholder value.
We reserve the right to modify, suspend or terminate participation in
the Plan by otherwise eligible registered holders or beneficial owners of our
common stock for any reason whatsoever including eliminating practices that are
inconsistent with the purposes of the Plan, which are to provide a convenient
and economical method of investing in our stock and to encourage long-term
investment. If it becomes apparent that an individual is buying and immediately
selling our common stock to take advantage of the discount provision, we will
take action to prevent that type of activity, e.g., by not granting any future
waiver requests for that person.
ONCE A WAIVER REQUEST FOR A CASH INVESTMENT OVER $10,000 HAS BEEN GRANTED, HOW
ARE SHARES PRICED AND PURCHASED?
Shares purchased pursuant to a granted waiver request will be purchased
directly from us. Initial and optional cash investments made pursuant to a
request for waiver will be applied to the purchase of
15
shares of common stock as soon as practicable on or after the "waiver investment
date" set forth in Appendix B. Initial and optional cash investments made
pursuant to a request for waiver will be acquired at a price equal to the
average of the daily high and low sales prices computed up to 4 decimal places,
if necessary, of our common stock as reported on the New York Stock Exchange for
the 10 trading days immediately preceding the applicable waiver investment date.
A "trading day" is any day on which our stock is reported as bought or sold over
the NYSE. The last 10 trading days before each of the waiver investment dates
listed in Appendix B are in the "pricing period" for that investment date. All
funds properly received by the Plan Administrator up to the close of business on
the last business day before the pricing period begins will be invested by the
Plan Administrator in shares of PNM Resources common stock as soon as
practicable on or after the waiver investment date.
Example of Timing of Optional Cash Investment Over Maximum Monthly Amount
Assuming Waiver Investment Date of March 13, 2003
Filing a Request Funds must be Waiver Investment by
for Waiver Received by Pricing Period* Investment Date Administrator
---------------- ------------- --------------- --------------- -------------
No later than February 26, 2003 February 27 to March As soon as practicable
February 24, 2003 12, 2003* MARCH 13 after March 13, 2003
* The purchase price will be the average of the daily high and low sales price
for the 10 trading days during the pricing period (assuming that we do not set a
threshold price for the pricing period or offer a discount from the purchase
price as discussed further below).
For purposes of determining the price per share for investments made
pursuant to a request for waiver, we may set a minimum purchase price per share
or threshold price, for any pricing period. This threshold price is a minimum
price that would be used under an alternative method for setting the per share
purchase price that is described in the next paragraph. We will determine
whether to set a threshold price, and, if so, its amount, at least 3 business
days before the first day of the pricing period. We will notify the Plan
Administrator of the threshold price, if any. In deciding whether to set a
threshold price, we will consider one, all or a combination of the following
factors:
o the general trend of the stock market as a whole, the general
trend of the utility sector of the stock market, and the
general trend of our stock.
o whether any previous offerings under the waiver provisions of
the Plan been over or under subscribed.
o do we have an immediate need for the cash, do we foresee an
upcoming transaction that will require new cash and are there
external events affecting the decision.
Participants may ascertain whether a threshold price has been set or waived for
any given pricing period by calling Mellon's Waiver Department at 1-917-320-6300
or such other number as we may establish from time to time.
We will fix the threshold price for a pricing period as a dollar amount
that the average of the high and low sales prices as reported by the NYSE for
each trading day of that pricing period (not adjusted for discounts, if any)
must equal or exceed. We will exclude from the pricing period and from the
determination of the purchase price any trading day within the pricing period
that does not meet the
16
threshold price. Thus, for example, if the threshold price is not met for 2 of
the 10 trading days in a pricing period, then we will base the purchase price
upon the remaining 8 trading days in which the threshold price was met.
In addition, we will return a pro rata portion of each cash investment
made pursuant to an approved request for waiver for each trading day of a
pricing period for which the threshold price is not met as soon as reasonably
practical after the pricing period, without interest. The returned amount will
equal one-tenth (1/10th) of the total amount of that cash investment (not just
the amount exceeding $10,000) for each trading day that the threshold price is
not met. Thus, for example, if the threshold price is not met for two (2) of the
ten (10) trading days in a pricing period, then we will return two-tenths
(2/10th or 20%) of the initial or optional cash investment to you without
interest after conclusion of the pricing period. This does not constitute a
discount to the purchase price; however, it does reduce the total number of
shares that you may purchase with respect to an investment date.
The establishment of the threshold price and the possible return of a
portion of the payment applies only to initial or optional cash investments
exceeding $10,000 per month made pursuant to a granted request for waiver.
Setting a threshold price for a pricing period will not affect the setting of a
threshold price for any other pricing period. We may waive our right to set a
threshold price for any particular pricing period. Neither we nor the Plan
Administrator are required to give you notice of the threshold price for any
pricing period. We may alter or amend at our sole discretion these pricing
periods at any time and from time to time, prior to the commencement of any
pricing period and prior to the granting of any waiver with respect to such
period.
At our sole discretion, we may offer participants making a cash
investment in excess of $10,000 a discount of up to 3% from the regular purchase
price on any particular investment date. The maximum discount rate, if any, on
initial or optional cash investments in excess of $10,000 per month may be
obtained at least 3 business days before the first day of the applicable pricing
period, as provided on Appendix B to this prospectus, by calling Mellon's Waiver
Department at 1-917-320-6300.
Setting a discount from the purchase price for initial and optional
cash investments in excess of $10,000 per month for a particular pricing period
will not affect the setting of a discount for any other pricing period. We may
increase, decrease, or waive our right to set a discount from the purchase price
for any particular pricing period. Neither we nor the Plan Administrator is
required to give you notice of the discount for any pricing period. When setting
the discount, if any, we will consider our capital needs, whether we want to
issue equity to meet our capital needs and how quickly we desire to close the
investment. For example, to the extent we desire to issue equity in a particular
pricing period to meet our capital needs, we are more likely to establish a
discount to encourage participants to make cash investments.
USE OF PROCEEDS
We expect to use the net proceeds received from the issuance and sale
of common stock offered hereby for general corporate purposes, including capital
expenditures.
PLAN OF DISTRIBUTION
Subject to the discussion below, we will distribute newly issued shares
of our common stock sold under the Plan. FutureShare, a registered
broker/dealer, will assist in the identification of investors and other related
services, but will not be acting as an underwriter with respect to shares of our
common stock sold under the Plan. There are no brokerage commissions or service
charges allocated to participants in the Plan in connection with their purchases
of such newly issued shares of common stock.
17
In connection with the administration of the Plan, we may be requested
to approve investments made pursuant to waiver requests by or on behalf of
participants or other investors who may be engaged in the securities business.
Persons who acquire shares of our common stock through the Plan and
resell them shortly after acquiring them, including coverage of short positions,
under certain circumstances, may be participating in a distribution of
securities that would require compliance with Regulation M under the Exchange
Act, and may be considered to be underwriters within the meaning of the
Securities Act. We will not extend to any such person any rights or privileges
other than those to which it would be entitled as a participant, nor will we
enter into any agreement with any such person regarding the resale or
distribution by any such person of the shares of our common stock so purchased.
We may, however, accept investments made pursuant to Requests for Waiver by such
persons.
From time to time, financial intermediaries, including brokers and
dealers, and other persons may engage in positioning transactions in order to
benefit from any waiver discounts applicable to investments made pursuant to
waiver requests under the Plan. Those transactions may cause fluctuations in the
trading volume of our common stock. Financial intermediaries and such other
persons who engage in positioning transactions may be deemed to be underwriters.
We have no arrangements or understandings, formal or informal, with any person
relating to the sale of shares of our common stock to be received under the
Plan. We reserve the right to modify, suspend or terminate participation in the
Plan by otherwise eligible persons to eliminate practices that are inconsistent
with the purpose of the Plan.
We will pay any and all brokerage commissions and related expenses
incurred in connection with purchases of our common stock under the Plan, except
that a trading fee (currently $.06 per share) is included in the share price for
open market purchases. Upon withdrawal by a participant from the Plan by the
sale of shares of our common stock held under the Plan, the participant will
receive the proceeds of that sale less a transaction and trading fee and any
required tax withholdings or transfer taxes.
You will not incur fees, commissions or expenses in connection with
purchases made under the Plan, other than the current trading fee included in
the open market share price of $.06 per share. This trading fee will not be
charged to you for shares purchased with reinvested dividends. If you direct the
Plan Administrator to sell shares of common stock credited to your account,
however, the Administrator will deduct from the sales proceeds; (1) any
applicable service fee (currently $15.00 per sale transaction) plus (2) the
applicable trading fee (currently $.06 per share). The current fees are set
forth in Appendix A.
TRANSFER AGENT AND REGISTRAR
Our Transfer Agent and Registrar is Mellon Investor Services, 85
Challenger Road, Ridgefield Park, New Jersey 07660.
EXPERTS
The consolidated financial statements and financial schedules incorporated
by reference in this prospectus and elsewhere in this registration statement of
which this prospectus is a part by reference to PNM Resources and PNM's Annual
Report on Form 10-K for the year ended December 31, 2001 have been so
incorporated in reliance in the report of Arthur Andersen LLP, independent
public accountants, given on the authority of said firm as experts in accounting
and auditing.
18
There may be risks and your recovery may be limited as a result of our
prior use of Arthur Andersen LLP as our independent public accounting firm. On
March 31, 2002, Arthur Andersen LLP, our independent public accounting firm for
the years ended December 31, 1993 through 2001, was indicted on federal
obstruction of justice charges arising from the U.S. government's investigation
of Enron. On June 7, 2002, we dismissed Arthur Andersen LLP as our independent
public accountants and hired Deloitte & Touche LLP as our independent auditors
for the year ending December 31, 2002. Because our former audit partner has left
Arthur Andersen LLP, after reasonable efforts, we have not been able to obtain
the written consent of Arthur Andersen LLP to the incorporation into this
registration statement of their report with respect to the consolidated
financial statements which appeared in our Annual Report on Form 10-K for the
year ended December 31, 2001. Under these circumstances, Rule 437a under the
Securities Act permits us to dispense with the requirements under Section 7 of
the Securities Act to file such consent with this registration statement. The
absence of such consent may limit recovery by investors on certain claims. In
particular, and without limitation, investors will not be able to recover
against Arthur Andersen LLP under Section 11(a)(4) of the Securities Act for any
untrue statement of material fact contained in our consolidated financial
statements for the year ended December 31, 2001 or any omissions to state a
material fact required to be stated therein. In addition, the ability of Arthur
Andersen LLP to satisfy any claims (including claims arising from Arthur
Andersen LLP's provision of auditing and other services to us) may be limited as
a practical matter due to recent events involving Arthur Andersen LLP.
With respect to the unaudited interim financial information for the three
and six-month periods ended June 30, 2002 and the three and nine-month periods
ended September 30, 2002 which are incorporated herein by reference, Deloitte &
Touche LLP has applied limited procedures in accordance with professional
standards for a review of such information. However, as stated in their reports
included in PNM Resources' Quarterly Report on Form 10-Q for the quarters ended
June 30, 2002 and September 30, 2002 and incorporated by reference herein, they
did not audit and they do not express an opinion on that interim financial
information. 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 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.
LEGAL OPINION
Certain legal matters in connection with the common stock offered
hereby have been passed upon for PNM Resources by Keleher & McLeod, P.A.,
Albuquerque, New Mexico.
19
APPENDIX A
FEE SCHEDULE
ENROLLMENT FEE FOR NEW INVESTORS..................... NO CHARGE
INITIAL PURCHASE OF SHARES........................... TRADING FEE INCLUDED IN SHARE PRICE (CURRENTLY $0.06
PER SHARE), APPLICABLE WHEN SHARES ARE ACQUIRED BY THE
PLAN ADMINISTRATOR THROUGH ITS BROKER
REINVESTMENT OF DIVIDENDS............................ NO CHARGE. WE WILL PAY THE APPLICABLE TRADING FEE
WHEN SHARES ARE ACQUIRED BY THE PLAN ADMINISTRATOR
THROUGH ITS BROKER
OPTIONAL CASH INVESTMENTS............................ TRADING FEE INCLUDED IN SHARE PRICE (CURRENTLY $0.06
PER SHARE), APPLICABLE WHEN SHARES ARE ACQUIRED BY THE
PLAN ADMINISTRATOR THROUGH ITS BROKER
SALE OF SHARES (PARTIAL OR FULL):
TRANSACTION FEE................................. $15 PER SALE TRANSACTION OR LIQUIDATION
TRADING FEE..................................... CURRENTLY $0.06 PER SHARE
GIFT OR TRANSFER OF SHARES........................... NO CHARGE
SAFEKEEPING OF STOCK CERTIFICATES.................... NO CHARGE
CERTIFICATE ISSUANCE................................. NO CHARGE
RETURNED CHECKS OR REJECTED AUTOMATIC DEBIT.......... $35 PER CHECK OR TRANSACTION
DUPLICATE STATEMENTS:
CURRENT YEAR.................................... NO CHARGE
PRIOR YEAR(s)................................... $20 FLAT FEE PER REQUEST PER EACH PRIOR YEAR
PLAN FEES ARE AT THE DISCRETION OF PNM RESOURCES, INC. INVESTORS SHOULD NOT RELY
SOLELY ON THE ABOVE SCHEDULE AS FEES ARE SUBJECT TO CHANGE. FOR MORE
INFORMATION, PLEASE CONTACT THE PLAN ADMINISTRATOR AT 1-877-663-7775.
20
APPENDIX B
"REQUEST FOR WAIVER" INITIAL OR OPTIONAL CASH INVESTMENTS OF MORE THAN $10,000
PER MONTH
Threshold Price and Optional Cash
Waiver Discount, if any, Investments Must be Pricing Period Waiver
Year will be set by received by Start Date Investment Date
---- ------------------------ ------------------- -------------- ---------------
2003 February 3 February 5 February 6 February 21
February 24 February 26 February 27 March 13
March 14 March 18 March 19 April 2
April 3 April 7 April 8 April 23
April 24 April 28 April 29 May 13
May 14 May 16 May 19 June 3
June 4 June 6 June 9 June 23
June 24 June 26 June 27 July 14
July 15 July 17 July 18 August 1
August 4 August 6 August 7 August 21
August 22 August 26 August 27 September 11
September 12 September 16 September 17 October 1
October 2 October 6 October 7 October 21
October 22 October 24 October 27 November 10
November 11 November 13 November 14 December 1
December 2 December 4 December 5 December 19
December 22 December 24 December 26 January 12, 2004
2004 January 13 January 15 January 16 February 2
February 3 February 5 February 6 February 23
February 24 February 26 February 27 March 12
March 15 March 17 March 18 April 1
April 2 April 6 April 7 April 22
April 23 April 27 April 28 May 12
May 13 May 17 May 18 June 2
June 3 June 7 June 8 June 22
June 23 June 25 June 28 July 13
July 14 July 16 July 19 August 14
August 3 August 5 August 6 August 20
August 23 August 25 August 26 September 10
September 13 September 15 September 16 September 30
October 1 October 5 October 6 October 20
October 21 October 25 October 26 November 9
PRICING PERIODS ARE AT THE DISCRETION OF PNM RESOURCES, INC. INVESTORS SHOULD
NOT RELY SOLELY ON THE ABOVE SCHEDULE AS PRICING PERIODS AND WAIVER INVESTMENT
DATES MAY VARY. FOR MORE INFORMATION, PLEASE CONTACT THE PLAN ADMINISTRATOR'S
WAIVER DEPARTMENT AT 1-917-320-6300.
21
[LOGO]
PNM RESOURCES, INC.
COMMON STOCK
(NO PAR VALUE)
PNM RESOURCES, INC. PNM DIRECT PLAN
--------------------
PROSPECTUS
--------------------
, 2002
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission registration fee*.................. $ 3,597.20
Printing, engraving and postage expenses.............................. $16,000.00
Legal fees............................................................ $20,000.00
Accounting fees....................................................... $15,000.00
Miscellaneous......................................................... $10,000.00
Total Expenses............................................... $64,597.20
==========
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* Actual, others 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 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
II-1
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.
ITEM 16. Exhibits.
Exhibit No. Description
----------- ------------
4.1 Restated Articles of Incorporation of PNM Resources, Inc.
(incorporated by reference to Exhibit 3.1 of PNM Resources and
PNM's Annual Report on Form 10-K for the year ended December
31, 2001).
4.2 Bylaws of PNM Resources, Inc. as amended through April 17,
2001 (incorporated by reference to Exhibit 4.2 of the
Post-Effective Amendment No. 1 to the registration statement
on Form S-3 of PNM Resources, Inc., File No. 333-10993, filed
on October 4, 2001).
4.3* Form of Amended and Restated PNM Resources, Inc. PNM Direct
Plan.
5* Opinion of Keleher & McLeod, P.A.
15 Letter Regarding Unaudited Information
23.1 Consent of Arthur Andersen LLP (Consent of independent public
accountants omitted pursuant to Rule 437a)
23.2* Consent of Keleher & McLeod, P.A. (included in Exhibit 5).
24* Power of attorney (See signatures page in Part II of Form S-3
filed September 30, 2002).
----------
*Previously filed
ITEM 17. Undertakings.
The undersigned registrant hereby undertakes:
II-2
(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, as
amended (the "Securities Act"); (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, the aggregate,
the changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; (iii) To include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided however, that paragraphs
(1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3,
Form S-8, or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the 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 Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, the
registrant 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 December 20,
2002.
PNM RESOURCES, INC.
By: /s/ J. E. Sterba
-----------------------------------
J. 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 J.E. Sterba, M.H. Maerki and J.R. Loyack,
and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any or all amendments
to this registration statement, including post-effective amendments, and to file
the same, with all exhibits thereto and other documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and conforming all that said attorneys-in-fact and agents, and each of them, or
the substitute or substitutes of any or all of them, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in their capacities and on
the dates indicated.
Signature Capacity Date
--------- -------- ----
/s/ J. E. Sterba Chairman, President and Chief December 20, 2002
----------------------------- Executive Officer; Director
J. E. Sterba (Principal Executive Officer)
/s/ M. H. Maerki Senior Vice President and Chief December 20, 2002
----------------------------- Financial Officer
M. H. Maerki (Principal Financial Officer)
/s/ J. R. Loyack Vice President, Controller and Chief December 20, 2002
----------------------------- Accounting Officer
J. R. Loyack (Principal Accounting Officer)
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* Director
-----------------------------
R. G. Armstrong
* Director
-----------------------------
R. M. Chavez
* Director
-----------------------------
J. A. Dobson
* Director
-----------------------------
J. A. Godwin
* Director
-----------------------------
M. T. Pacheco
* Director
-----------------------------
T. F. Patlovich
* Director
-----------------------------
R. M. Price
* Director
-----------------------------
B. S. Reitz
* Director
-----------------------------
P. F. Roth
/s/ J.E. Sterba December 20, 2002
-----------------------------
J. E. Sterba
* Attorney-in-fact
II-5
INDEX TO EXHIBITS
Exhibit No. Exhibit
----------- -------
4.1 Restated Articles of Incorporation of PNM Resources, Inc.
(incorporated by reference to Exhibit 3.1 of PNM Resources and
PNM's Annual Report on Form 10-K for the year ended December
31, 2001).
4.2 Bylaws of PNM Resources, Inc. as amended through April 17,
2001 (incorporated by reference to Exhibit 4.2 of the
Post-Effective Amendment No. 1 to the registration statement
on Form S-3 of PNM Resources, Inc., File No. 333-10993, filed
on October 4, 2001).
4.3* Form of Amended and Restated PNM Resources, Inc. PNM Direct
Plan.
5* Opinion of Keleher & McLeod, P.A.
15 Letter Regarding Unaudited Information
23.1 Consent of Arthur Andersen LLP (Consent of independent public
accountants omitted pursuant to Rule 437a)
23.2* Consent of Keleher & McLeod, P.A. (included in Exhibit 5).
24* Power of attorney (See signatures page in Part II of Form S-3
filed September 30, 2002).
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* Previously filed