As filed with the Securities and Exchange Commission on July 2, 2002
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PINNACLE WEST CAPITAL CORPORATION
(Exact name of Registrant as specified in its charter)
ARIZONA 86-0512431
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
400 NORTH FIFTH STREET
P.O. Box 53999,
Phoenix, Arizona 85072-3999
(Address of Principal Executive Offices) (Zip Code)
THE PINNACLE WEST CAPITAL CORPORATION
2002 LONG-TERM INCENTIVE PLAN
(Full title of the Plan)
Matthew P. Feeney
SNELL & WILMER L.L.P.
One Arizona Center
Phoenix, AZ 85004-0001
(Name and Address of Agent for Service)
(602) 382-6239
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) PRICE(2) REGISTRATION FEE
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Common Stock,
No Par Value 6,000,000 shares $ 37.65 $ 225,900,000 $ 20,783
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(1) Pursuant to Rule 416 of the Securities Act of 1933, there is also being
registered such number of additional shares of common stock that may become
issuable under the 2002 Long-Term Incentive Plan in the event of certain
changes in the outstanding shares, including stock splits, stock dividends,
combinations or reclassifications of shares, recapitalizations, or mergers.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act
of 1933, on the basis of the average of the high and low prices for shares
of common stock on the New York Stock Exchange on June 26, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents have been filed by Pinnacle West Capital
Corporation ("Pinnacle West") with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 and are incorporated by
reference into this Registration Statement:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
2001;
2. Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2002;
3. The Company's Current Reports on Form 8-K filed on January 28, 2002,
February 20, 2002, April 22, 2002, May 6, 2002, May 23, 2002, June 6,
2002, and June 11, 2002; and
4. The description of Pinnacle West's common stock contained in its
registration statement on Form 8-B, File No. 1-8962, as filed on July
25, 1985, except for the reference to transfer agents and registrars
for the common stock contained therein and of Pinnacle West's
Preferred Share Purchase Rights included in its registration statement
on Form 8-A, File No. 1-8962, as filed on March 31, 1989, a Form 8
Amendment thereto as filed on August 29, 1991, and Forms 8A/A thereto
as filed on April 19, 1999 and June 28, 2002.
All documents subsequently filed by Pinnacle West pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this registration statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this registration
statement.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Arizona Business Corporation Act (the "ABCA") permits extensive
indemnification of present and former directors, officers, employees or agents
of an Arizona corporation, whether or not authority for such indemnification is
contained in the indemnifying corporation's articles of incorporation or bylaws.
Specific authority for indemnification of present and former directors and
officers to the fullest extent permitted by applicable law is contained in
Article VII of Pinnacle West's bylaws.
Under the ABCA, in order for a corporation to indemnify a director or
officer, a majority of the corporation's disinterested directors, independent
legal counsel, or the shareholders must find that the conduct of the individual
to be indemnified was in good faith and that the individual reasonably believed
that the conduct was in the corporation's best interests (in the case of conduct
in an "official capacity" with the corporation) or that the conduct was at least
not opposed to the corporation's best interests (in all other cases). In the
case of any criminal proceeding, the finding must be to the effect that the
individual had no reasonable cause to believe the conduct was unlawful.
Indemnification is permitted with respect to expenses, judgments, fines, and
amounts paid in settlement by such individuals. Broader indemnification is
allowed, with certain limitations for an officer who is not also a director or
where the basis on which the officer was made a party to the proceeding is an
act or omission solely as an officer, as provided in the articles of
incorporation, bylaws, a resolution of the board of directors or a contract.
Indemnification under the ABCA is permissive, except in the event of a
successful defense, in which case a director or officer must be indemnified
against reasonable expenses, including attorneys' fees, incurred in connection
with the proceeding. In addition, the ABCA requires Arizona corporations to
indemnify any "outside director" (a director who is not an officer, employee or
holder of five percent or more of any class of the corporation's stock or the
stock of any affiliate of the corporation) against liability unless (i) the
corporation's articles of incorporation limit such indemnification, (ii) the
outside director is adjudged liable in a proceeding by or in the right of the
corporation or in any other proceeding charging improper personal benefit to the
director, or (iii) a court determines, before payment to the outside director,
that the director failed to meet the standards of conduct described in the
preceding paragraph. A court may also order that an individual be indemnified if
the court finds that the individual is fairly and reasonably entitled to
indemnification in light of all of the relevant circumstances, whether or not
the individual has met the standards of conduct in this and the preceding
paragraph or was adjudged liable as described above.
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 Pinnacle West out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
See Exhibit Index located at Page 6.
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;
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (i) and (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
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(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 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.
(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 and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix, State of Arizona, on this 2nd day of
July, 2002.
PINNACLE WEST CAPITAL CORPORATION
By: William J. Post
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William J. Post,
Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated. Each person whose signature appears below
hereby authorizes Chris N. Froggatt, Barbara M. Gomez and Michael V. Palmeri,
and each of them, as attorneys-in-fact, to sign in his or her name and behalf,
individually and in each capacity designated below, and to file any amendments,
including post-effective amendments, to this registration statement.
Signature Title Date
--------- ----- ----
William J. Post Chairman of the Board of Directors July 2, 2002
-------------------------- and Chief Executive Officer
William J. Post (Principal Executive Officer)
Michael V. Palmeri Vice President, Finance July 2, 2002
-------------------------- (Principal Financial Officer)
Michael V. Palmeri
Chris N. Froggatt Vice President and Controller July 2, 2002
-------------------------- (Principal Accounting Officer)
Chris N. Froggatt
Edward N. Basha, Jr. Director July 2, 2002
--------------------------
Edward N. Basha, Jr.
Jack E. Davis Director and President July 2, 2002
--------------------------
Jack E. Davis
Michael L. Gallagher Director July 2, 2002
--------------------------
Michael L. Gallagher
Pamela Grant Director July 2, 2002
--------------------------
Pamela Grant
Roy A. Herberger, Jr. Director July 2, 2002
--------------------------
Roy A. Herberger, Jr.
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Martha O. Hesse Director July 2, 2002
--------------------------
Martha O. Hesse
William S. Jamieson, Jr. Director July 2, 2002
--------------------------
William S. Jamieson, Jr.
Humberto S. Lopez Director July 2, 2002
--------------------------
Humberto S. Lopez
Robert G. Matlock Director July 2, 2002
--------------------------
Robert G. Matlock
Kathryn L. Munro Director July 2, 2002
--------------------------
Kathryn L. Munro
Bruce J. Nordstrom Director July 2, 2002
--------------------------
Bruce J. Nordstrom
William L. Stewart Director July 2, 2002
--------------------------
William L. Stewart
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EXHIBIT INDEX
Exhibit No. Description
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5.1 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (contained within Signature Page)
In addition to those Exhibits shown above, the registrant hereby incorporates
the following Exhibits pursuant to Rule 411 of Regulation C promulgated under
the Securities Act of 1933 by reference to the filings set forth below:
Exhibit No. Description Previously Filed As File No. Date Effective
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4.1 Articles of Exhibit 19.1 to the 1-8962 11-14-88
Incorporation, restated Company's September 1988
as of July 29, 1988 Form 10-Q Report
4.2 Bylaws, amended as of Exhibit 4.1 to the 1-8962 1-20-00
December 15, 1999 Company's Registration
Statement on Form S-8 No.
333-95035
4.3 Amended and Restated Exhibit 4.1 to the 1-8962 4-19-99
Rights Agreement dated as Company's March 22, 1999
of March 26, 1999 Form 8-K Report
4.4 Amendment to Rights Exhibit 4.1 to the 1-8962 5-15-02
Agreement effective as of Company's March 2002 Form
January 1, 2002 10-Q Report
99.1 The Pinnacle West Capital Appendix B to the 1-8962 4-08-02
Corporation 2002 Company's 2002 Notice and
Long-Term Incentive Plan Proxy Statement for the
Annual Meeting of
Shareholders held on
May 22, 2002
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