Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
NEW MEXICO 1-6986 85-0468296 ---------- ------ ---------- (State or Other (Commission File No.) (IRS Employer Jurisdiction of Identification No.) Incorporation) ALVARADO SQUARE, ALBUQUERQUE, NEW MEXICO 87158 ---------------------------------------- ---------- (Address of Principal Executive Offices) (Zip Code) |
ITEM 5. OTHER EVENTS.
(a) At the annual meeting of the shareholders of Public Service Company of New Mexico ("PNM") held on June 6, 2000, shareholders of PNM approved management's plan to create a new holding company pursuant to the Agreement and Plan of Share Exchange (the "Plan of Exchange"), dated as of April 17, 2000, by and between PNM and PNM Resources, Inc., a New Mexico corporation formerly known as Manzano Corporation ("PNM Resources"). Effective December 31, 2001, pursuant to the Plan of Exchange, the outstanding shares of common stock ($5.00 par value) of PNM were automatically exchanged on a share-for-share basis (the "Share Exchange") for common stock (without par value) of PNM Resources. This transaction resulted in PNM becoming a wholly owned subsidiary of PNM Resources.
The shares of PNM Resources common stock issued pursuant to the Share Exchange were registered under the Securities Act of 1933 pursuant to PNM Resources's Registration Statement on Form S-4, as amended (No. 333-32170), filed on March 10, 2000, which became effective on April 20, 2000. Reference is made to the Proxy Statement/Prospectus of PNM Resources included in the Registration Statement for additional information about this transaction. A revised description of PNM Resources common stock is set forth under (b) below. This description reflects amendments to the Articles of Incorporation of PNM Resources subsequent to the effectiveness of the Registration Statement, which amendments were ratified by shareholders at PNM's 2001 Annual Meeting.
Pursuant to Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), PNM Resources common stock is deemed to be registered under Section 12(b) of the Exchange Act. PNM Resources common stock was approved for listing on the New York Stock Exchange and PNM Resources has assumed PNM's ticker symbol, "PNM", with the consummation of the Share Exchange. PNM common stock has been delisted with the New York Stock Exchange.
(b) Description of PNM Resources Common Stock.
The authorized capital stock of PNM Resources consists of 10,000,000 shares of preferred stock without par value, issuable in series from time to time, and 120,000,000 shares of common stock, without par value. The board of directors of PNM Resources is authorized by PNM Resources's Articles of Incorporation, at any time or from time to time, to establish and designate one or more series of preferred stock and to fix the number of shares and the relative rights, preferences and limitations of each such series. PNM Resources's Articles of Incorporation limit the board of directors to designating voting rights only when dividends on the preferred stock are not paid and when proposed changes to the Articles would adversely affect preferred shareholders' rights. The affirmative vote of the holders of a majority of the outstanding capital stock of PNM Resources entitled to vote shall be required in order to amend, alter, change or repeal any provisions of the Articles of Incorporation.
PNM Resources common stock is listed on the New York Stock Exchange under the ticker symbol PNM.
Dividends
After giving effect to any prior rights of the PNM Resources preferred stock, if any should become outstanding, PNM Resources will pay dividends on its common stock as determined by its board of directors out of legally available funds.
Voting Rights
Holders of common stock are entitled to one vote for each share held by them on all matters submitted to the shareholders of PNM Resources. Holders of PNM Resources common stock do not have cumulative voting rights in the election of directors. The New Mexico Business Corporation Act and PNM Resources's Articles of Incorporation and Bylaws generally require the affirmative vote of a majority of the shares represented at the annual meeting and entitled to vote for shareholder action, including the election of directors. Under the New Mexico Business Corporation Act and PNM Resources's Articles of Incorporation, some corporate actions, including amending the Articles and approving a plan of merger, consolidation or share exchange, require the affirmative vote of a majority of the outstanding shares entitled to vote.
Liquidation
In the event PNM Resources is liquidated or dissolved, either voluntarily or involuntarily, the holders of any PNM Resources preferred stock established by its board of directors would have priority (after any creditors of PNM Resources) with respect to the distribution of assets. After the holders of any such preferred stock are paid their aggregate liquidation preference, the holders of common stock would be entitled, to the exclusion of the holders of preferred stock, to share ratably (according to the number of shares held by them) in all remaining assets of PNM Resources available for distribution.
Preemptive and Other Rights
Holders of PNM Resources's capital stock do not automatically have any preemptive rights to purchase shares of PNM Resources's common or preferred stock (or their equivalents). PNM Resources common stock is not subject to redemption or to any further calls or assessments and is not entitled to the benefit of any sinking fund provisions. The shares of PNM Resources common stock to be issued to PNM common shareholders in connection with the Share Exchange will be fully paid and non-assessable once the Share Exchange is completed.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) - (b) Not Applicable
(c) Exhibits. The following exhibits are filed as part of this report:
*2.1 Agreement and Plan of Share Exchange, dated as of April 17, 2000, by and between Public Service Company of New Mexico and PNM Resources, Inc., formerly known as Manzano Corporation.
*4.1.1 Articles of Incorporation of PNM Resources, Inc.
*4.1.2 Articles of Amendment to the Articles of Incorporation of PNM Resources, Inc., dated April 10, 2001.
*4.1.3 Articles of Amendment to the Articles of Incorporation of PNM Resources, Inc., dated July 12, 2001.
*4.2 Bylaws of PNM Resources, Inc. as amended through April 17, 2001.
4.3 Articles of Exchange, as filed with the New Mexico Public Regulation Commission Corporations Bureau on December 20, 2001.
* Previously filed and incorporated herein by reference.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
PNM RESOURCES, INC.
(Registrant)
/s/ John R. Loyack
--------------------------------
Name: John R. Loyack
Title: Vice President, Controller and
Chief Accounting Officer
Date: December 31, 2001
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
*2.1 Agreement and Plan of Share Exchange (incorporated by
reference to Exhibit A of the registration statement on Form
S-4, as amended, of PNM Resources, Inc., File No. 333-32170,
filed on April 18, 2000).
*4.1.1 Articles of Incorporation of PNM Resources, Inc. (incorporated
by reference to Exhibit B of the registration statement on
Form S-4, as amended, of PNM Resources, Inc., File No.
333-32170, filed on April 18, 2000).
*4.1.2 Articles of Amendment to the Articles of Incorporation of PNM
Resources, Inc., dated April 10, 2001 (incorporated by
reference to Exhibit 4.1.2 of 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).
*4.1.3 Articles of Amendment to the Articles of Incorporation of PNM
Resources, Inc., dated July 12, 2001 (incorporated by
reference to Exhibit 4.1.3 of 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).
*4.2 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 Articles of Exchange, as filed with the New Mexico Public
Regulation Commission Corporations Bureau on December 20,
2001.
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EXHIBIT 4.3
ARTICLES OF EXCHANGE
BETWEEN
PUBLIC SERVICE COMPANY OF NEW MEXICO,
AND
PNM RESOURCES, INC.
(FORMERLY KNOWN AS MANZANO CORPORATION)
Pursuant to the provisions of the New Mexico Business Corporation Act, Public Service Company of New Mexico ("PNM"), a New Mexico corporation, and PNM Resources, Inc. (formerly known as Manzano Corporation) ("PNM RESOURCES"), a New Mexico corporation, adopt the following Articles of Exchange, effective DECEMBER 31, 2001 AT 12:01 A.M. (MT) (the "EFFECTIVE TIME").
PNM is reorganizing into a holding company structure pursuant to the Plan of Share Exchange (defined below). Prior to the Effective Time, PNM Resources, Inc. was a wholly-owned subsidiary of PNM. Upon the Effective Time, PNM Resources will become the parent of PNM. PNM Resources is the acquiring corporation and PNM is the acquired corporation.
ARTICLE 1
PLAN OF SHARE EXCHANGE
Pursuant to the Agreement and Plan of Share Exchange dated as of April 17, 2000 ("PLAN OF SHARE EXCHANGE") between PNM and PNM Resources, attached hereto as part of these Articles of Exchange:
(1) Each share of common stock of PNM ($5.00 par value per share) issued and outstanding immediately before the Effective Time shall be automatically exchanged for one share of common stock of PNM Resources (without par value), which shares of PNM Resources common stock shall thereupon be fully paid and non-assessable;
(2) PNM Resources shall acquire and become the owner and holder of each issued and outstanding share of common stock of PNM so exchanged; and
(3) Each share of PNM Resources common stock issued and outstanding immediately prior to the Effective Time shall be cancelled and shall thereupon constitute an authorized and unissued share of PNM Resources.
Shares of preferred stock of PNM in existence prior to the Effective Time shall not be exchanged or otherwise affected in connection with the Plan of Share Exchange.
ARTICLE 2
OUTSTANDING SHARES
Immediately prior to the Effective Time:
For PNM Resources: 100 shares of PNM Resources common stock issued and outstanding and owned by PNM, and no issued and outstanding shares of PNM Resources preferred stock.
For PNM: 39,117,799 shares of PNM common stock issued and outstanding, and 128,000 shares of preferred stock of PNM issued and outstanding in one series.
ARTICLE 3
SHAREHOLDER APPROVAL
Approval of the Plan of Share Exchange required the affirmative vote of the holders of two-thirds of the shares of PNM common stock entitled to vote at the annual meeting of PNM shareholders held on June 6, 2000.
Holders of 39,535,699 shares of PNM common stock, issued and outstanding at the close of business on the April 17, 2000 record date, were entitled to vote on the Plan of Share Exchange. Each share of PNM common stock was entitled to one vote. Of the 39,535,699 eligible shares, 28,701,001 shares of PNM common stock were voted in favor of the Plan of Share Exchange, 2,813,624 shares of PNM common stock were voted against the Plan of Share Exchange, 221,815 shares were voted to abstain, and the remainder of the holders of eligible shares were not voted at the June 6, 2000 meeting of PNM shareholders.
ARTICLE 4
ACQUIRING CORPORATION STATEMENT
The adoption plan, I.E., the Plan of Share Exchange, and performance of its terms were duly approved by the board of directors of PNM Resources, along with such other requisite corporate action by PNM Resources.
Dated: December 20, 2001.
PNM RESOURCES, INC.
By /s/ J.E. Sterba
--------------------------------------------------
J.E. Sterba, Chairman, President
and Chief Executive Officer
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PUBLIC SERVICE COMPANY
OF NEW MEXICO
By /s/ J.E. Sterba
--------------------------------------------------
J.E. Sterba, Chairman, President
and Chief Executive Officer
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Attachment - Plan of Share Exchange
AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF SHARE EXCHANGE (this "Agreement"), dated as of April 17, 2000, is between PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation (the "Company") and the corporation whose shares of Common Stock, $5.00 par value per share (the "Company Common Stock"), will be acquired pursuant to the Exchange (as hereinafter defined) provided for herein, and MANZANO CORPORATION, a New Mexico corporation ("Manzano") and the corporation which will acquire the Company Common Stock. The Company and Manzano are hereinafter referred to, collectively, as the "Companies".
WITNESSETH:
WHEREAS, the authorized capital stock of the Company consists of (a) 80,000,000 shares of Company Common Stock, of which 39,535,699 shares are issued and outstanding as of the date hereof, and (b) 10,000,000 shares of Cumulative Preferred Stock, no par value ("Company Preferred Stock"), of which 128,000 shares are issued and outstanding in one series as of the date hereof;
WHEREAS, Manzano is a wholly-owned subsidiary of the Company with authorized capital stock consisting of (a) 120,000,000 shares of Common Stock, without par value ("Manzano Common Stock"), of which 100 shares are issued and outstanding as of the date hereof and owned of record by the Company, and (b) 50,000,000 shares of Preferred Stock, without par value ("Manzano Preferred Stock"), of which no shares are issued and outstanding as of the date hereof;
WHEREAS, the Boards of Directors of the respective Companies deem it desirable and in the best interests of the Companies and their shareholders that, at the Effective Time (as hereinafter defined), Manzano acquire each share of Company Common Stock issued and outstanding immediately prior to the Effective Time and that each such share of Company Common Stock be automatically exchanged for one share of Manzano Common Stock with the result that Manzano becomes the owner of all outstanding Company Common Stock and that each holder of Company Common Stock becomes the owner of an equal number of shares of Manzano Common Stock, all on the terms and conditions hereinafter set forth;
WHEREAS, the implementation of the Exchange is subject, to the extent required, and among other things as provided herein, to the receipt of orders, authorizations and approvals of the New Mexico Public Regulation Commission (the "PRC"), the Federal Energy Regulatory Commission (the "FERC") and the Nuclear Regulatory Commission (the "NRC"); and
WHEREAS, the Board of Directors of the Company has recommended that the Company's shareholders approve the Exchange and this Agreement, and the Exchange and this Agreement will be submitted to a vote of the holders of Company Common Stock pursuant to the New Mexico Business Corporation Act (the "Act").
NOW THEREFORE, in consideration of the premises, and of the agreements, covenants and conditions hereinafter contained, and subject to satisfaction of the conditions herein contained, the parties hereto agree with respect to the acquisition and exchange provided for herein (the "Exchange") that at the Effective Time each share of Company Common Stock
issued and outstanding immediately prior to the Effective Time will be automatically exchanged for one share of Manzano Common Stock, and that the terms and conditions of the Exchange and the method of carrying the same into effect are as follows:
ARTICLE I
Subject to the satisfaction of the terms and conditions contained herein, the Exchange will be effective upon the filing of Articles of Exchange (the "Articles") with respect to the Exchange with the Corporations Bureau of the PRC or at such later time as may be stated in the Articles (the time at which the Exchange becomes effective being referred to herein as the "Effective Time").
ARTICLE II
At the Effective Time:
(1) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time shall be automatically exchanged for one share of Manzano Common Stock, which shares of Manzano Common Stock shall thereupon be fully paid and non-assessable;
(2) Manzano shall acquire and become the owner and holder of each issued and outstanding share of Company Common Stock so exchanged;
(3) each share of Manzano Common Stock issued and outstanding immediately prior to the Effective Time shall be cancelled and shall thereupon constitute an authorized and unissued share of Manzano Common Stock; and
(4) the former holders of Company Common Stock shall be entitled only to receive shares of Manzano Common Stock in exchange therefor as provided herein subject to statutory dissenters' rights under Sections 53-15-3 and 53-15-4 of the Act that may be applicable to such former holders.
Shares of Company Preferred Stock shall not be exchanged or otherwise affected in connection with the Exchange. Subject to the terms thereof, each share of Company Preferred Stock issued and outstanding immediately prior to the Effective Time shall continue to be issued and outstanding following the Exchange and shall continue to be a share of Company Preferred Stock of the applicable series designation.
ARTICLE III
The consummation of the Exchange is subject to the following conditions precedent at or prior to the Effective Time:
(1) the receipt and continued effectiveness of (a) the approval by the holders of Company Common Stock as required by the Act and (b) such orders, authorizations, approvals or waivers from the PRC, the FERC, the NRC and any other jurisdictive regulatory bodies, boards or agencies, or other parties, which are required to consummate the Exchange at the
Effective Time and which do not include, in the sole judgment of the Company's Board of Directors, unacceptable conditions;
(2) a registration statement relating to the shares of Manzano Common Stock to be issued or reserved for issuance in connection with the Exchange shall be effective under the Securities Act of 1933, as amended, and shall not be the subject of any stop order pursuant to Section 8 thereunder;
(3) the approval for listing, upon official notice of issuance, by the New York Stock Exchange of the shares of Manzano Common Stock to be issued in connection with the Exchange;
(4) the receipt of an opinion of counsel or an opinion from the Company's independent public accountants, in form and substance satisfactory to the Board of Directors of the Company and of Manzano, as to the United States federal income tax consequences of the Exchange; and
(5) the receipt of an opinion, in form and substance satisfactory to the Company's Board of Directors, from Keleher & McLeod, P.A., counsel to the Company, as to the legality of Manzano Common Stock to be issued by Manzano in connection with the Exchange.
ARTICLE IV
This Agreement may be amended, modified or supplemented, or compliance with any provision or condition hereof may be waived, at any time prior to the Effective Time (including, without limitation after receipt of the affirmative vote of holders of the Company Common Stock as provided in Article V hereof), by the mutual consent of the Boards of Directors of the Company and of Manzano; provided, however, that, after receipt of such holder approval, no such amendment, modification, supplement or waiver shall be made or effected if such amendment, modification, supplement or waiver would, in the sole judgment of the Board of Directors of the Company, materially and adversely affect the rights of the shareholders of the Company.
This Agreement may be terminated and the Exchange abandoned at any time prior to the Effective Time (including, without limitation, after receipt of the affirmative vote of holders of the Company Common Stock as provided in Article V hereof), if the Board of Directors of the Company determines, in its sole judgment, that consummation of the Exchange would for any reason be inadvisable or not in the best interests of the Company or its shareholders.
ARTICLE V
The Exchange and this Agreement will be submitted to the holders of Company Common Stock for approval pursuant to the Act. As required by the Act, the affirmative vote of the holders of two-thirds of the outstanding shares of Company Common Stock will be required to approve the Exchange and this Agreement.
ARTICLE VI
Following the Effective Time, each holder of an outstanding certificate or certificates theretofore representing shares of Company Common Stock may, but shall not be required to, surrender the same to Manzano for cancellation and reissuance of a new certificate or certificates in such holder's name or for cancellation and transfer, and each such holder or transferee will be entitled to receive a certificate or certificates representing the same number of shares of Manzano Common Stock as the shares of Company Common Stock previously represented by the certificate or certificates surrendered. Until so surrendered or presented for transfer, each outstanding certificate which, immediately prior to the Effective Time, represents Company Common Stock shall be deemed and treated for all corporate purposes to represent the ownership of the same number of shares of Manzano Common Stock as though such surrender or transfer and exchange had taken place. The holders of Company Common Stock at the Effective Time shall have no right to have their shares of Company Common Stock transferred on the stock transfer books of the Company, and such stock transfer books shall be deemed to be closed for this purpose at the Effective Time, and at and after the Effective Time, such stock transfer books may be deemed to be the stock transfer books of Manzano.
ARTICLE VII
Prior to or as of the Effective Time, the Company shall cause those directors of the Company identified as Manzano directors in the Company's Proxy Statement for the Company's 2000 Annual Meeting to be elected directors of Manzano, and such directors shall remain as directors of Manzano at and after the Effective Time until Manzano's 2001 Annual Meeting. Each director of the Company as of the Effective Time shall also remain a director of the Company at and after the Effective Time until otherwise determined by Manzano.
ARTICLE VIII
At the Effective Time, Manzano shall become sponsor of a dividend reinvestment and stock purchase plan ("Manzano Direct Plan") by amendment to the Company's PNM Direct Plan as in effect immediately prior to the Effective Time. At the Effective Time, all shares of Company Common Stock held under the PNM Direct Plan (including fractional and uncertificated shares) immediately prior to the Effective Time shall be automatically exchanged for a like number of shares (including fractional and uncertificated shares) of Manzano Common Stock and shall be held under and pursuant to the Manzano Direct Plan. At the Effective Time, Manzano shall become the sponsor of, and agree to issue Manzano Common Stock on and after the Effective Time in connection with, the Company's Performance Stock Plan and the Company's Director Retainer Plan, each as in effect immediately prior to the Effective Time, by appropriate amendments to these plans.
IN WITNESS WHEREOF, each of the Company and Manzano, pursuant to authorization and approval given by its Board of Directors, has caused this Agreement to be executed by its President and Chief Executive Officer and its corporate seal to be affixed hereto and attested by its Secretary as of the date first above written.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By: /s/ Benjamin F. Montoya
-------------------------------------
Chairman of the Board
and Chief Executive Officer
ATTEST:
/s/ Patrick T. Ortiz
-----------------------------------
Secretary
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MANZANO CORPORATION
By: /s/ Benjamin F. Montoya
-------------------------------------
Chairman of the Board
and Chief Executive Officer
ATTEST:
/s/ Patrick T. Ortiz
-----------------------------------
Secretary
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