Close

Form S-8 PNM RESOURCES INC

October 30, 2020 4:38 PM EDT

As filed with the Securities and Exchange Commission on October 30, 2020

Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

_____________________________________

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________________________

PNM Resources, Inc.
(Exact name of registrant as specified in its charter)

New Mexico
(State or other jurisdiction of
incorporation or organization)
85-0468296
(I.R.S. Employer
Identification Number)
414 Silver Ave. SW
Albuquerque, New Mexico 87102-3289
(Address of principal executive offices, including zip code)
_____________________________________
PNM Resources, Inc. Executive Savings Plan II
(Full title of the plan)
_____________________________________
Patrick V. Apodaca, Esq.
Senior Vice President, General Counsel & Secretary
414 Silver Ave. SW
Albuquerque, New Mexico 87102-3289
Telephone: (505) 241-2898
Fax: (505) 241-2368
(Name, address and telephone number, including area code, of agent for service)

With a copy to:
Leonard D. Sanchez, Esq.
Associate General Counsel
414 Silver Ave. SW
Albuquerque, New Mexico 87102-3289
Telephone: (505) 241-4941
Fax: (505) 241-2338

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

    Large accelerated filer     Accelerated filer
    Non-accelerated filer     Smaller reporting company
        Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.








CALCULATION OF REGISTRATION FEE

Title of
securities to be
registered
Amount to be
registered
Proposed maximum
offering price
per share
Proposed maximum
aggregate
offering price(1)
Amount of
registration fee
PNM Resources, Inc. Executive Savings Plan II Deferred Compensation Obligations(2)100%N/A$10,000,000$1,091.00

(1)Estimated solely for the purpose of calculating the amount of the registration fee, pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the “Securities Act”).

(2)Represent unsecured obligations of PNM Resources, Inc. (the “Company”) to pay up to $10,000,000 in deferred compensation in the future, to a select group of eligible employees, in accordance with the PNM Resources, Inc. Executive Savings Plan II (the “Plan”).






EXPLANATORY NOTE

PNM Resources, Inc. (the “Company”) is filing this Registration Statement on Form S-8 (this “Registration Statement”) to register an additional $10,000,000 in deferred compensation obligations under the PNM Resources, Inc. Executive Savings Plan II (the “Plan”), successor plan to the PNM Resources, Inc. Executive Savings Plan. An aggregate of $28,500,000 in deferred compensation obligations and 257,500 shares of the Company’s common stock, no par value per share, issuable under the Plan, were previously registered by the Company on its Registration Statements on Form S-8 (File Nos. 333-121371, 333-139108, 333-141282, 333-156243, and 333-159362).

PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

Item 1. Plan Information.*

Item 2. Registrant Information and Employee Plan Annual Information.*

*The documents containing the information specified in Part I of this Form S-8 will be delivered to each employee, officer, director or other person, as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”), who is eligible to participate in the Plan. These documents are not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference into this registration statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents have been filed by the Company with the Commission and are hereby incorporated by reference in this Registration Statement:

1.The Company’s Annual Report on Form 10-K for the year ended December 31, 2019;
2.The Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020 and June 30, 2020, and September 30, 2020;
3.The Company’s Current Reports on Form 8-K, filed with the Commission on January 10, 2020, January 22, 2020, January 30, 2020 (with respect to Item 8.01 only), February 26, 2020, March 30, 2020 (with respect to Item 8.01 only), April 15, 2020, April 17, 2020, April 24, 2020, May 14, 2020, June 11, 2020 (with respect to Item 8.01 only), July 15, 2020, October 21, 2020, and October 28, 2020;
4.The description of the Company’s common stock contained in the Company’s Current Report on Form 8-K, filed with the Commission on December 31, 2001, and any amendments or reports filed for the purpose of updating such description, including the Company’s Current Reports on Form 8-K, filed with the Commission on August 17, 2006, November 21, 2008 and August 9, 2012.
All documents filed by the Company pursuant to Section  13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment, which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein. 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
1


statement to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 6 of Article II of the Company’s Bylaws states that each person serving as a director or an officer of the Company, or, at the Company’s request, as a director or an officer of any other company in which the Company 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 Company to the full extent of the authority of the Company 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. A director shall not be indemnified in respect of any proceeding charging improper personal benefit to the director, whether or not involving action in the director’s official capacity, in which the director shall have been adjudged to be liable on the basis that personal benefit was improperly received by the director. In some instances, indemnification of a director may be mandatory or, upon the application of a director, may be ordered by a court. Determination that indemnification is permissible and determination as to reasonable expenses is to be made by majority of a quorum of the board of directors, a designated committee set for this purpose, special legal counsel, or by the shareholders. 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 bylaws, an agreement, a resolution of shareholders or directors or otherwise. The Company 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 Company’s 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 the foregoing indemnification provisions, subject to certain exclusions and to the policy
2


limits.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number 
Description
Page or Method of Filing
4.1Articles of Incorporation of PNM Resources, Inc., as amended to date (Certificate of Amendment dated October 27, 2008 and Restated Articles of Incorporation dated August 3, 2006)Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on November 21, 2008
4.2Bylaws of PNM Resources, Inc. with all amendments to and including October 24, 2017Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on October 25, 2017
5.1Filed herewith
23.1Filed herewith
23.2Included in Exhibit 5.1
24.1Power of AttorneyIncluded on the signature page hereto
99.1Incorporated by reference to Exhibit 10.1.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2014
99.2Incorporated by reference to Exhibit 10.7 to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016
Certain legal matters in connection with the securities offered hereby will be passed upon for us by Leonard D. Sanchez, Esq., Associate General Counsel of the Company.
Item 9. Undertakings.
(a)    The undersigned registrant hereby undertakes:
(1)    To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)    To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)    To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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
3


with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this effective Registration Statement; and
(iii)    To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if this Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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.
(b)    The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 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 this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)    Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

4


SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all 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 October 30, 2020.

PNM RESOURCES, INC.
By:/s/ P.K. COLLAWN
P.K. Collawn
Chairman, President and Chief Executive Officer

POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints, jointly and severally, Patricia K. Collawn, Joseph D. Tarry and Henry E. Monroy, and each of them acting individually, as his or her attorney-in-fact, each with full power of substitution, for him or her any and all capacities, to sign any and all amendments (including, without limitation, post-effective amendments and any amendments or abbreviated registration statements increasing the amount of securities for which registration is being sought) to this registration statement, with all exhibits and any and all documents required to be filed with respect thereto, with the Securities and Exchange Commission or any regulatory authority, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in order to effectuate the same as fully to all intents and purposes as he or she might or could do if personally present, hereby ratifying and confirming all that such attorneys-in-fact and agents, or any of them, or their substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

SignatureTitleDate
/s/ P. K. COLLAWN
 Chairman, President and Chief Executive Officer
(Principal Executive Officer)
October 30, 2020
P. K. Collawn
/s/ J. D. TARRY

Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
October 30, 2020
J. D. Tarry
/s/ H. E. MONROY

Vice President and Corporate Controller
(Principal Accounting Officer)
October 30, 2020
H. E. Monroy
/s/ V. A. BAILEY

DirectorOctober 30, 2020
V. A. Bailey
/s/ N. P. BECKER
DirectorOctober 30, 2020
N. P. Becker
/s/ E. R. CONLEY

DirectorOctober 30, 2020
E. R. Conley



/s/ A. J. FOHRER
DirectorOctober 30, 2020
A. J. Fohrer
/s/ S. M. GUTIERREZ
DirectorOctober 30, 2020
S. M. Gutierrez
/s/ J. A. HUGHES
DirectorOctober 30, 2020
J. A. Hughes
/s/ M. T. MULLARKEY
DirectorOctober 30, 2020
M. T. Mullarkey
/s/ D. K. SCHWANZ
DirectorOctober 30, 2020
D. K. Schwanz
/s/ B. W. WILKINSON
DirectorOctober 30, 2020
B. W. Wilkinson




EXHIBIT 5.1
PNM Resources, Inc.
414 Silver Avenue., SW
Albuquerque, NM 87102-3289
PNM Resources.com

October 30, 2020
PNM Resources, Inc.
414 Silver Avenue SW
Albuquerque, New Mexico 87102-3289

Ladies and Gentlemen:
I, as Associate General Counsel, am acting as counsel for PNM Resources, Inc., a New Mexico corporation (the “Company”), in connection with the preparation of the Company’s Registration Statement on Form S-8 (the “Registration Statement”) to be filed on the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the registration of $10,000,000 of deferred compensation obligations of the Company (the “Obligations”), to be offered under the PNM Resources, Inc. Executive Savings Plan II (the “Plan”).
This opinion is being furnished to you at your request in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.
I have examined originals or copies, certified or otherwise identified to my satisfaction, of such corporate records, agreements, and other instruments, certificates, orders, opinions, correspondence with public officials, certificates provided by the Company’s officers and representatives, and other documents as I have deemed necessary or advisable for the purposes of rendering the opinions set forth herein, including (i) the corporate and organizational documents of the Company, including the Articles of Incorporation, as amended to date (the “Articles”), and the Bylaws of the Company, as amended to date (the “Bylaws”), (ii) the Registration Statement and exhibits thereto, including the Prospectus comprising a part thereof (the “Prospectus”), and (iii) the Plan.
For purposes of the opinions expressed below, I have assumed without verification (i) the authenticity of all documents submitted to me as originals, (ii) the conformity to the originals of all documents submitted as certified, photostatic or electronic copies and the authenticity of the originals thereof, (iii) the legal capacity of natural persons, (iv) the genuineness of signatures not witnessed by me, (v) the due authorization, execution and delivery of all documents by all parties, other than the Company, and the validity, binding effect and enforceability thereof and (vi) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates I have reviewed.
As to any facts material to the opinions expressed herein which were not independently established or verified, I have relied upon oral or written statements and representations of officers and other representatives of the Company and others and of public officials.
I have further assumed that (i) the Company will continue to be validly existing and in good standing under the laws of the State of New Mexico and has, and will continue to have, all requisite power and authority to enable it to execute, deliver and perform its obligations with respect to the relevant Obligations and the related documents, including the Plan, (ii) the Registration Statement and any amendment thereto will have become effective under the Act (and will remain effective under the Act at the time of issuance of the Obligations thereunder), (iii) any prospectus supplement or term sheet describing the Obligations will be filed with the Commission to the extent required by applicable law and relevant rules and regulations of the Commission, and (iv) the Board of Directors of the Company, an authorized committee thereof or appropriate officers of the Company will have taken all necessary corporate action with respect to the issuance of the Obligations, the instruments pursuant to which they are duly authorized and established and related matters.



In addition, I have assumed that the terms of the Obligations will have been established so as not to and that the execution and delivery by the Company of, and the issuance of the Obligations in accordance with the provisions of the Plan, will not violate, conflict with or constitute a default under (i) any agreement or instrument to which the Company or its properties are subject, (ii) any law, rule or regulation to which the Company or its properties is subject, (iii) any judicial or regulatory order or decree of any governmental authority or (iv) any consent, approval, license, authorization or validation of, or filing, recording or registration with, any governmental authority.
I am a member of the bar of the State of New Mexico and am not purporting to be an expert on, or generally familiar with, or qualified to express legal conclusions based upon, laws of any state or jurisdiction other than the State of New Mexico and I express no opinion as to the effect of the laws of any other jurisdiction or as to the securities or blue sky laws of any state (including, without limitation, New Mexico), municipal law or the laws of any local agencies within any state (including, without limitation, New Mexico). This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
Based on the foregoing and in reliance thereon, and subject to the limitations, qualifications, assumptions, exceptions and other matters set forth herein, I am of the opinion that:
1.The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of New Mexico.
2.The Plan has been duly authorized and, when the terms of the Obligations are established in accordance with the Registration Statement and the Plan, the Obligations will be valid and binding obligations of the Company.
In addition to the qualifications set forth above, and without limiting the generality of such qualifications, the opinion contained herein is also subject to the following:
a.Enforceability may be limited (i) by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws relating to or affecting the enforcement of creditors’ rights, (ii) by general equitable principles, whether applied in law or in equity, or (iii) by the doctrine of commercial reasonableness.
b.I express no opinion as to the availability of specific performance or injunctive relief in any proceeding to enforce, or declare valid and enforceable, any of the Obligations.
c.Enforceability may be limited to the extent that remedies are sought with respect to a breach that a court concludes is not material or does not adversely affect the parties seeking enforcement and I express no opinion with respect thereto.
d.Enforceability may be limited by any unconscionable or inequitable conduct upon the part of any party, defenses arising from the failure of any party to act in accordance with the terms and conditions of the Plan or defenses arising as a consequence of the passage of time or defenses arising as a result of any party’s failure to act reasonably or in good faith and I express no opinion with respect thereto.
e.I express no opinion as to the enforceability of any of the Obligations the performance of which by the Company would be prohibited by federal law or the law of any state other than New Mexico or the rules of a securities exchange.
My opinion is as of the date hereof and I have no responsibility to update this opinion for events and circumstances occurring after the date hereof or as to facts relating to prior events that are subsequently brought to my attention and I disavow any undertaking to advise you of any changes in law.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name under the caption “Legal Matters” in the Registration Statement. In giving this consent, I do not hereby admit



that I come within the category of persons whose consent is required under Section 7 of the Act, or the General Rules and Regulations of the Commission promulgated thereunder.
Very truly yours,

By:    /s/ LEONARD D. SANCHEZ        
    Leonard D. Sanchez
    Associate General Counsel
    PNM Resources, Inc.



EXHIBIT 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


The Board of Directors
PNM Resources, Inc.:

We consent to the use of our report dated March 2, 2020, with respect to the consolidated balance sheets of PNM Resources, Inc. and subsidiaries as of December 31, 2019 and 2018, the related consolidated statements of earnings, comprehensive income, changes in equity, and cash flows for each of the years in the three-year period ended December 31, 2019, and the related notes and financial statement Schedule I – Condensed Financial Information of Parent Company and Schedule II – Valuation and Qualifying Accounts, and the effectiveness of internal control over financial reporting as of December 31, 2019, incorporated herein by reference.

/s/ KPMG LLP

Albuquerque, New Mexico
October 30, 2020



Serious News for Serious Traders! Try StreetInsider.com Premium Free!

You May Also Be Interested In





Related Categories

SEC Filings