As filed with the Securities and Exchange Commission on February 12, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
ARIZONA PUBLIC SERVICE COMPANY
(Exact name of Registrant as specified in charter)
Arizona 86-0011170
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
___________________
400 North Fifth Street, Phoenix, Arizona 85004
(Address of Principal Executive Offices) (Zip Code)
PINNACLE WEST CAPITAL CORPORATION, ARIZONA PUBLIC SERVICE
COMPANY, SUNCOR DEVELOPMENT COMPANY AND EL DORADO
INVESTMENT COMPANY DEFERRED COMPENSATION PLAN
(Full title of plan)
___________________
Matthew P. Feeney
SNELL & WILMER, L.L.P.
One Arizona Center
Phoenix, Arizona 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 Amount of
Title of Securities Amount to be Offering Aggregate Offering Registration
to be Registered(1) Registered Price per Share Price(2) Fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred $4,000,000 100% $4,000,000 $1,180
Compensation
Obligations
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(1) The Deferred Compensation Obligations are unsecured obligations of Arizona
Public Service Company to pay deferred compensation in the future in
accordance with the terms of the Pinnacle West Capital Corporation, Arizona
Public Service Company, SunCor Development Company and El Dorado Investment
Company Deferred Compensation Plan (the "Plan") for a select group of
eligible employees. The Deferred Compensation Obligations being registered
represent the maximum amount of compensation deferrals which, it is
anticipated, may be made by participants in the Plan during the approximate
24 month period following the initial offering date under this Registration
Statement.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, will be delivered to participants in accordance with Form S-8 and Rule 428
under the Securities Act of 1933, as amended (the "Securities Act"). These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, 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 Certain Documents by Reference.
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The following documents have been filed by Arizona Public Service Company
(the "Company") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 and are incorporated herein by reference:
1. The Company's Form 10-K Report for the fiscal year ended December 31,
1996.
2. The Company's Form 10-Q Report for the fiscal quarter ended March
31, 1997.
3. The Company's Form 10-Q Report for the fiscal quarter ended June 30,
1997.
4. The Company's Form 10-Q Report for the fiscal quarter ended September
30, 1997.
5. The Company's Form 8-K Report, dated April 7, 1997.
6. The Company's Form 8-K Report, dated January 13, 1998.
All documents subsequently filed by the Registrant 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.
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Item 4. Description of Securities.
Under the Pinnacle West Capital Corporation, Arizona Public Service
Company, SunCor Development Company and El Dorado Investment Company Deferred
Compensation Plan (the "Plan"), the Company will provide eligible employees the
opportunity to defer a portion of their future cash compensation. The
obligations of the Company ultimately to pay such deferred amounts in accordance
with the Plan (the "Obligations") will be unsecured general obligations of the
Company and will rank without preference with other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding. A brief description
of certain aspects of the Plan follows, and is qualified in its entirety by the
full text of the Plan:
(a) The Plan allows a Senior Management employee, Officer, or
Director ("Participant(s)") to defer a portion of his or her
compensation.
(b) The amount of compensation to be deferred by each Participant
will be determined in accordance with the Plan based on
irrevocable elections by the Participant. Each Obligation will
be payable upon termination of employment or on a date
selected by the Participant in accordance with the terms of
the Plan.
(c) Each Participant or his or her beneficiary under the Plan is
an unsecured general creditor of the Company with respect to
his or her own Plan benefits. Benefits are payable solely from
the Company's general assets, and are subject to the risk of
corporate insolvency. In the event of the Company's
insolvency, each Participant's deferred compensation may be
subject to a lien or security interest of the Company's
creditors.
(d) The Company has decided to segregate all contributions to the
Plan from working capital in a grantor trust established by
Pinnacle West Capital Corporation ("PWCC"), commonly referred
to as a "rabbi trust." This trust will hold and invest the
Plan's assets and the trustee will be obligated to pay all
legitimate claims of Participants, solely from plan assets,
to the extent not paid by the Company.
(e) The Company reserves the right to partially or completely
terminate the Plan with respect to its Participants and PWCC
reserves the right to amend the Plan, provided that such
amendment or termination does not result in any reduction of a
Participant's vested account balance, including previous
earnings or losses, as of the date of such amendment or
termination.
(f) A committee (the "Plan Committee") shall be appointed by the
Board of Directors of PWCC and shall be charged with the
general administration of the Plan and the Obligations. The
Plan Committee has the right to interpret the plan and
determine all other matters that might arise under the terms
and conditions of the Plan. Its decisions are final and
binding on all Participants.
(g) A Participant's right or the right of any other person to the
Obligations cannot be transferred, pledged, or encumbered
subject to a Participant's written
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designation of a beneficiary under the Plan or to the terms of
a domestic relations order.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The law of Arizona 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, under certain
circumstances, is contained in Article Fifth of the Company's Articles of
Incorporation. In addition, Section 7.01 of the Company's bylaws provides that
the Company will indemnify present and former directors and officers to the
fullest extent permitted by Arizona law.
The Arizona Business Corporation Act (the "ABCA") permits extensive
indemnification of present and former directors and officers of an Arizona
corporation, whether or not authority for such indemnification is contained in
the indemnifying corporation's articles of incorporation or bylaws. Under the
ABCA, in order for a corporation to provide indemnification, 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.
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) 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
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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.
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising on
the part of the Company out of its foregoing indemnification provisions, subject
to certain exclusions and to the policy limits.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Snell & Wilmer L.L.P. (included in the
opinion filed as Exhibit 5).
24 Power of Attorney (included in signature page).
99 Pinnacle West Capital Corporation, Arizona Public
Service Company, SunCor Development Company and El
Dorado Investment Company Deferred Compensation Plan,
as amended and restated, effective January 1, 1996
(Incorporated by reference to Exhibit 10.10(a) to
the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 1995).
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 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 law 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 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective registration statement.
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(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(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
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 the 12th day of
February, 1998.
By: William J. Post
William J. Post
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated. Each person whose signature appears
below hereby authorizes William J. Post, George A. Schreiber, Jr., and Michael
V. Palmeri and each of them, as attorneys-in-fact, to sign his or her name on
his or her behalf, individually and in each capacity designated below, and to
file any amendments, including post-effective amendments to this Registration
Statement.
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<CAPTION>
Signature Title Date
<S> <C> <C>
By: William J. Post Director, President, and Chief February 12, 1998
William J. Post Executive Officer (Principal
Executive Officer)
By: George A. Schreiber, Jr. Director, Executive Vice February 12, 1998
George A. Schreiber, Jr. President, and Chief Financial
Officer (Principal Financial
Officer and Principal
Accounting Officer)
By: O. Mark DeMichele Director February 12, 1998
O. Mark DeMichele
By: Michael L. Gallagher Director February 12, 1998
Michael L. Gallagher
By: Martha O. Hesse Director February 12, 1998
Martha O. Hesse
By: Marianne M. Jennings Director February 12, 1998
Marianne M. Jennings
By: Robert E. Keever Director February 12, 1998
Robert E. Keever
By: Robert G. Matlock Director February 12, 1998
Robert G. Matlock
By: Bruce J. Nordstrom Director February 12, 1998
Bruce J. Nordstrom
By: John R. Norton III Director February 12, 1998
John R. Norton III
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<S> <C> <C>
By Donald M. Riley Director February 12, 1998
Donald M. Riley
By Quentin P. Smith, Jr. Director February 12, 1998
Quentin P. Smith, Jr.
By Richard Snell Director February 12, 1998
Richard Snell
By Diane C. Walker Director February 12, 1998
Diane C. Walker
By Ben F. Williams Jr. Director February 12, 1998
Ben F. Williams, Jr.
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
+Exhibit No. Description Page or Method of Filing
<S> <C> <C>
5 Opinion of Snell & Wilmer
L.L.P.
23.1 Consent of Deloitte &
Touche LLP
23.2 Consent of Snell & Wilmer Included in Exhibit 5
L.L.P.
24 Power of Attorney Included in signature page
99 Pinnacle West Capital Incorporated by reference to Exhibit 10.10(a)
Corporation, Arizona Public to the Annual Report on Form 10-K of
Service Company, SunCor the Company for the fiscal year ended
Development Company and December 31, 1995
El Dorado Investment
Company Deferred
Compensation Plan, as
amended and restated,
effective January 1, 1996
</TABLE>
EXHIBIT 5
February 12, 1998
Arizona Public Service Company
400 N. Fifth Street
Phoenix, AZ 85004
Ladies and Gentlemen:
You have requested our opinion as counsel for Arizona Public Service
Company, an Arizona corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, and the proposed offering of up to
$4,000,000 of deferred compensation obligations under the Pinnacle West Capital
Corporation, Arizona Public Service Company, SunCor Development Company and El
Dorado Investment Company Deferred Compensation Plan (the "Plan"), as
contemplated in the Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission on or about February 12, 1998 (the
"Registration Statement").
We have examined the Company's Registration Statement, the Plan, the
Articles of Incorporation and By-Laws of the Company, and resolutions adopted by
the Company's Board of Directors. In addition, we have examined such corporate
records, certificates, and other documents (of which we are aware) as we have
considered necessary or appropriate for the purposes of this opinion.
On the basis of the foregoing, it is our opinion that the obligations
under the Plan will, when arising under the Plan in accordance with its terms,
constitute valid and binding obligations of the Company.
In connection with this opinion, we have assumed the authenticity of
original documents and the genuineness of all signatures and the conformity to
the originals of all documents submitted to us as copies.
Our opinion is qualified to the extent that enforcement of obligations
issued under the Plan may be subject to applicable federal or state bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent conveyance, or
other laws or court decisions relating to or affecting the rights of creditors
generally and may be limited by equitable principles of general applicability,
including without limitation concepts of materiality, reasonableness, good faith
and fair dealing, equitable subordination, and the possible unavailability of
specific performance or injunctive relief (regardless of whether considered in a
proceeding in equity or at law or whether codified by statutes).
<PAGE>
Arizona Public Service Company
Page 2
February 12, 1998
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Snell & Wilmer L.L.P.
EXHIBIT 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration
Statement of Arizona Public Service Company on Form S-8 of our report dated
February 28, 1997, appearing in the Annual Report on Form 10-K of Arizona Public
Service Company for the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Phoenix, Arizona
February 10, 1998
