As filed with the Securities and Exchange Commission on March 31, 1995.
Registration No. 33-15190
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
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
of incorporation or organization) Identification No.)
400 East Van Buren Street, Suite 700
Phoenix, Arizona 85004
(602) 379-2500
(Address, including zip code, and telephone number
and area code, of registrant's principal executive offices)
--------------
Pinnacle West Capital Corporation
Investors Advantage Plan
(Full title of the plan)
--------------
MICHAEL S. ASH With a Copy to:
400 East Van Buren Street, Suite 700 MATTHEW P. FEENEY
Phoenix, Arizona 85004 Snell & Wilmer L.L.P.
(Name and address of agent for service) One Arizona Center
(602) 379-2500 Phoenix, Arizona 85004-0001
(Telephone number, including area code, (602) 382-6239
of agent for service)
================================================================================
- ------------------------------------------------------------------------------
P R O S P E C T U S
- ------------------------------------------------------------------------------
PINNACLE WEST CAPITAL CORPORATION
INVESTORS ADVANTAGE PLAN
COMMON STOCK
(No Par Value)
--------------
The Pinnacle West Capital Corporation Investors Advantage Plan (the "Plan"),
to be effective as of May 1, 1995 and which amends and restates in its entirety
the Pinnacle West Capital Corporation Stock Purchase and Dividend Reinvestment
Plan, is designed to provide investors with a convenient way to purchase shares
of common stock, no par value ("Common Stock") of Pinnacle West Capital
Corporation (the "Company"), and to reinvest all or a portion of the cash
dividends paid on the Common Stock and the preferred stock of Arizona Public
Service Company ("APS") in shares of Common Stock.
PARTICIPANTS IN THE PLAN MAY:
o Reinvest all or a portion of cash dividends paid on Common Stock or APS
preferred stock registered in their names or on Common Stock credited to
their Plan accounts in shares of Common Stock.
o Make an initial investment in Common Stock with a cash payment of at least
$50, and additional optional investments thereafter, up to a maximum of
$60,000 per calendar year, including the initial investment.
o Receive, upon written request, certificates for whole shares of Common
Stock credited to their Plan accounts.
o Deposit certificates representing Common Stock into the Plan for
safekeeping.
o Sell shares of Common Stock credited to their Plan accounts through the
Plan.
Shares of Common Stock will be purchased under the Plan, at the option of
the Company, from newly issued shares, shares held in the treasury of the
Company, or shares purchased on the open market. Purchases will be effected
through an independent agent appointed by the Company. The Common Stock is
listed on the New York and Pacific Stock Exchanges. The closing price of the
Common Stock on March 29, 1995 on the New York Stock Exchange was $21.00.
The purchase price of newly issued or treasury shares of Common Stock
purchased under the Plan for an Investment Date (as defined in the Plan) will be
the average of the high and low sales prices of the Common Stock reported on the
New York Stock Exchange Composite Tape as published in The Wall Street Journal
or, for any day on which there is no such publication, in another generally
accepted publication for the first business day of the relevant Investment
Period (as defined in the Plan), provided that the New York Stock Exchange is
open on such day. The price of shares of Common Stock purchased or sold on the
open market will be the weighted average price per share (adjusted for brokerage
commissions, any related service charges, and applicable taxes) of the aggregate
number of shares purchased or sold, respectively, on the open market during the
relevant Investment Period. The Company will pay the costs of administration of
the Plan, except that Plan participants will bear the cost of brokerage
commissions, any related service charges, and applicable taxes relating to
shares of Common Stock purchased or sold on the open market.
To the extent required by applicable law in certain jurisdictions, shares of
Common Stock offered under the Plan to persons not presently record holders of
Common Stock are offered only through a registered broker/dealer in such
jurisdictions.
This Prospectus contains a summary of the material provisions of the Plan
and, therefore, this Prospectus should be retained by participants in the Plan
("Participants") for future reference.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
--------------
The date of this Prospectus is March 31, 1995.
CONTENTS
PAGE
----
Available Information................................................... 1
Incorporation of Certain Documents by Reference......................... 1
The Company............................................................. 2
Description of the Plan................................................. 2
Definitions........................................................... 2
Purpose of the Plan................................................... 4
Advantages and Disadvantages of the Plan.............................. 4
Plan Administration................................................... 6
Participation in the Plan............................................. 6
Participation Options................................................. 7
Initial Cash Investments and Cash Investments......................... 9
Reinvestment of Dividends............................................. 11
Purchases............................................................. 11
Certificates.......................................................... 13
Safekeeping of Certificates........................................... 13
Sale of Shares........................................................ 13
Termination of Plan Participation..................................... 14
Costs................................................................. 15
Reports to Participants............................................... 15
Other Information..................................................... 16
Federal Income Tax Information........................................ 17
Application of Proceeds................................................. 18
Experts................................................................. 18
Legal Opinions.......................................................... 18
Shareholder Information................................................. 19
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements, and other information can be obtained at prescribed rates from the
Public Reference Section of the Commission or may be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, and at certain of its regional offices
located at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and 75
Park Place, Room 1400, New York, New York 10007. The Common Stock is listed on
the New York and Pacific Stock Exchanges. Reports, proxy material, and other
information concerning the Company can be inspected at the respective offices of
these Exchanges at Room 401, 20 Broad Street, New York, New York 10005, and 115
Sansome Street, San Francisco, California 94104.
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE
The following documents previously filed with the Commission by the Company
(File No. 1-8962) are hereby incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1994 (the "1994 10-K").
2. The description of the Company's Common Stock included in the Company's
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 the Company's Preferred Share Purchase
Rights included in its Registration Statement on Form 8-A, File No. 1-8962,
as filed on March 31, 1989, and a Form 8 Amendment thereto as filed on
August 29, 1991.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of the 1994 10-K 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 will be deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein will
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which is also incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded will not be deemed,
except as modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus has been delivered, on the
oral or written request of any such person, a copy of any or all of the
documents referred to above which have been or may be incorporated in this
Prospectus by reference, other than exhibits to such documents. Requests for
such copies should be directed to Pinnacle West Capital Corporation, P.O. Box
52132, Phoenix, Arizona 85072-2132, or by calling (602) 379-2500 or (800)
457-2983 toll-free nationwide.
THE COMPANY
The Company was incorporated in 1985 under the laws of the State of Arizona
and is engaged in the acquisition and holding of securities of corporations for
investment purposes. The principal executive offices of the Company are at 400
East Van Buren Street, P.O. Box 52132, Phoenix, Arizona 85072-2132, and its
telephone number is (602) 379-2500.
The Company's principal subsidiary, APS, is Arizona's largest electric
utility. The Company's other subsidiaries include SunCor Development Company,
which is engaged primarily in owning, holding, and developing real property, and
El Dorado Investment Company, which is engaged primarily in making equity
investments in other companies.
The following questions and answers describe the provisions of the Pinnacle
West Capital Corporation Investors Advantage Plan (the "Plan"). For convenience
of reference, the definitions of certain key terms are included below:
DESCRIPTION OF THE PLAN
DEFINITIONS
Administrator -- Pinnacle West Capital Corporation (the "Company"
or "Pinnacle West"). See also "Plan
Administrator."
Cash Investment -- A payment made subsequent to enrollment in the
Plan. The maximum aggregate Cash Investment
(including the Initial Cash Investment) is $60,000
per account per calendar year.
Company -- Pinnacle West Capital Corporation.
Dividend Payment Date -- The date determined by the Company's Board of
Directors on which Common Stock dividends are
payable. These dates are normally the first day of
March, June, September, and December.
Dividend Record Date -- Generally the first business day of the month
immediately preceding the Dividend Payment Date.
Eligible Investor -- An investor who makes an Initial Cash Investment
of at least $50 or a Shareholder of Record.
Enrollment Forms -- Forms available through the Company that the
investor must complete to be able to participate
in the Plan.
Ex-Dividend Date -- A date prior to the Dividend Record Date, based on
industry regulations, necessary to allow for the
settlement of traded securities by the Dividend
Record Date. Common Stock purchased between the
Ex-Dividend Date and the Dividend Record Date is
not entitled to the succeeding dividend.
Initial Cash Investment -- A payment made to the Company to purchase shares
of Common Stock to open a Plan account. The
minimum Initial Cash Investment is $50.
Investment Date -- The date on which the purchase price for all
shares of Common Stock to be purchased has been
determined. The purchased shares are credited to a
participant's account on the Investment Date.
Investment Period -- The period during which Common Stock is purchased.
The Investment Period begins on the first business
day of any month in which there is not a Dividend
Record Date and on the second business day of any
month in which there is a Dividend Record Date.
Investment Statement -- A statement sent to a participant after an
Investment Period in which the participant's
account had investment activity. The Investment
Statement includes the purchase price and number
of shares of Common Stock purchased.
Plan -- Pinnacle West Capital Corporation Investors
Advantage Plan.
Plan Administrator -- Pinnacle West Capital Corporation (the "Company").
Plan History Statement -- A statement sent to a participant upon withdrawal
(including by way of the sale of shares or the
issuance of a certificate for shares) of all or a
portion of shares from the participant's account.
Shareholder of Record -- An investor whose shares are registered on the
books of the Company.
PURPOSE OF THE PLAN
1. WHAT IS THE PURPOSE OF THE PLAN?
The purpose of the Plan is to provide shareholders and interested investors with
a convenient and economical way to purchase shares of Common Stock with Cash
Investments (including an Initial Cash Investment) or reinvested dividends.
ADVANTAGES AND DISADVANTAGES OF THE PLAN
2. WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF THE PLAN?
THE PLAN OFFERS INVESTORS THE FOLLOWING ADVANTAGES:
A. DIRECT PURCHASE OF STOCK -- Persons not presently owning shares of Common
Stock may become shareholders by making an Initial Cash Investment of at
least $50 (but not more than $60,000 per account per calendar year).
See Question 5.
Participants may invest additional funds to purchase shares of Common Stock
at any time. The maximum annual Cash Investment (including the Initial Cash
Investment) is $60,000 per account.
B. SELL STOCK -- Participants may sell shares held in their Plan account
through the Plan. See Questions 33 and 34.
C. CERTIFICATE SAFEKEEPING -- Participants may deposit their Common Stock
certificates with the Company, whether or not the Common Stock represented
by such certificates was purchased through the Plan, and have their
ownership maintained on the Company's records in their Plan account. This
convenience is provided at no cost to the participant and eliminates the
possibility of loss, inadvertent destruction, or theft of certificates.
Also, because shares deposited for safekeeping are treated in the same
manner as shares purchased through the Plan, they may be transferred or sold
through the Plan. See Question 32.
D. REINVESTMENT OF DIVIDENDS -- All or a portion of Common Stock dividends
may be reinvested to purchase additional shares of Common Stock. Dividends
on APS preferred stock may be reinvested to purchase Common Stock provided
the investor maintains a Plan account. See Questions 7 through 11.
E. SIMPLIFIED RECORDKEEPING -- An Investment Statement will be mailed to
participants after any investment activity. The statement is cumulative,
providing year-to-date Plan account activity. A Plan History Statement will
be sent when shares are sold, transferred or otherwise withdrawn from the
Plan. See Questions 35 and 38.
F. REDUCED BROKER COMMISSIONS -- The broker commissions negotiated by the
Company for buying or selling shares are typically substantially less than
those paid by individual investors for this service. No commissions are paid
for newly issued shares or for treasury shares. See Questions 28 and 34.
G. TRANSFER OF SHARES -- Participants may transfer shares held in their Plan
account to another individual's account at no cost. The normal transfer
requirements will apply. See Questions 31 and 44.
H. FULL INVESTMENT OF FUNDS -- The full amount of reinvested dividends and
Cash Investments can be invested because the Plan permits fractional shares
to be credited to Plan accounts. Dividends are paid on fractional shares as
well as on whole shares. See Question 29.
PLAN PARTICIPATION PRESENTS INVESTORS WITH THE FOLLOWING DISADVANTAGES:
A. NO INTEREST ON FUNDS PENDING INVESTMENT -- No interest is paid on
dividends or Cash Investments held pending investment or reinvestment. See
Question 18.
B. DELAY IN DETERMINING PURCHASE PRICE -- The number of shares purchased for
an investor's Plan account will not be determined until all shares for the
relevant Investment Period have been purchased. Therefore, investors will
not know the number of shares purchased or the purchase price until the
Investment Date. See Questions 26 through 30.
C. RETURN OF CASH INVESTMENTS -- Cash Investments (including Initial Cash
Investments) sent to the Plan Administrator will not be returned to the
investor unless a written request is received by the Plan Administrator by
the last Company business day of the month prior to the relevant Investment
Period. See Question 20.
D. PERIODIC DELAYS FOR ISSUING CERTIFICATES OR SELLING SHARES -- Requests
for issuance of certificates or the sale of shares from a Plan account will
be delayed during the dividend processing period. This is a 13-15 business
day period which begins on the Ex-Dividend Date. See Questions 31, 34, and
35.
E. BROKER COMMISSIONS -- While the broker commissions negotiated by the Plan
Administrator for buying or selling stock are typically less than those paid
by individual investors for this service, certain investors may be able to
negotiate lower commissions on an individual basis. Also, the commissions
negotiated by the Plan Administrator may change from time to time. See
Questions 28 and 34.
F. PRICE OF SHARES -- Plan participants can not designate a specific price
at which to sell or purchase Common Stock. Requests for the sale of Plan
shares are accumulated and the Plan Administrator places a market order with
the appointed agent. Similarly, a market order is placed with the
independent agent to purchase stock with all funds available for investment.
See Questions 25, 28, and 33.
PLAN ADMINISTRATION
3. WHO ADMINISTERS THE PLAN?
The Company administers the Plan. Administration duties include recordkeeping,
sending periodic statements of account, and holding shares purchased through the
Plan or otherwise deposited for safekeeping. See Question 32. Such shares will
be registered in the name of, and held by, the Company as Plan Administrator.
Communications about the Plan should be directed to:
Pinnacle West Capital Corporation
Shareholder Department
P.O. Box 52133
Phoenix, AZ 85072-2133
When writing, please include a day-time telephone number to expedite our reply.
The nationwide toll-free Shareholder Department telephone number is
800-457-2983. In the Phoenix area, call 379-2500.
PARTICIPATION IN THE PLAN
4. WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?
Any interested investors making an Initial Cash Investment of at least $50 and
all Common Stock Shareholders of Record are eligible to participate. Citizens or
residents of a country other than the United States or its territories and
possessions should determine whether they are subject to any governmental
regulations prohibiting or restricting participation in the Plan, and must
provide evidence satisfactory to the Administrator that their participation will
not violate any such regulations, before enrolling in the Plan.
Beneficial owners of Common Stock whose shares are held in a name other than
their own (for example, a bank, broker, or trustee) may participate in the Plan
with respect to such shares by transferring those shares into their own name.
Once the shares are registered on the books of the Company, the investor is
eligible to enroll in the Plan.
5. HOW DOES AN ELIGIBLE INVESTOR ENROLL IN THE PLAN?
After being furnished with a Plan Prospectus, Eligible Investors may join the
Plan by completing and signing an Enrollment Form and returning it to the
Company. Non-shareholder investors must also submit an Initial Cash Investment
of at least $50 (but not more than $60,000).
Once enrolled in the Plan, Eligible Investors will remain enrolled until they
discontinue their participation or the Plan is terminated. See Question 35, 36,
and 42.
Shareholders who were enrolled in the Company's Stock Purchase and Dividend
Reinvestment Plan are automatically enrolled in the Investors Advantage Plan and
are eligible to participate in the features of the new Plan immediately on and
after May 1, 1995. SUCH SHAREHOLDERS SHOULD CAREFULLY REVIEW THE PARTICIPATION
OPTIONS, PARTICULARLY THE "CASH INVESTMENT ONLY" AND "PARTIAL DIVIDEND
REINVESTMENT" OPTIONS. THESE OPTIONS HAVE BEEN MODIFIED IN THE NEW PLAN. See
Questions 7 through 13. Unless such a shareholder submits a new Enrollment Form
designating a different participation option, each such shareholder will be
enrolled in the new Plan at a level of participation that corresponds to the
level at which the shareholder previously participated in the Company's Stock
Purchase and Dividend Reinvestment Plan.
6. WHEN MAY AN ELIGIBLE INVESTOR JOIN THE PLAN?
An Eligible Investor may join the Plan at any time by completing and returning
an Enrollment Form.
PARTICIPATION OPTIONS
7. WHAT PARTICIPATION OPTIONS ARE AVAILABLE IN THE PLAN?
On the Enrollment Form, the investor is offered the following participation
options:
-- Full Dividend Reinvestment
-- Partial Dividend Reinvestment or
-- Cash Investment Only
Shareholders who were enrolled in the Company's Stock Purchase and Dividend
Reinvestment Plan should see the discussion in Question 5.
8. HOW DOES THE "FULL DIVIDEND REINVESTMENT" OPTION OF THE PLAN WORK?
Participants enrolling in the Full Dividend Reinvestment option will have
dividends earned on all Common Stock, both in their Plan account and of record,
reinvested to purchase additional shares of Common Stock. APS preferred
shareholders may also reinvest their preferred dividends (see Question 11). The
reinvestment of dividends will commence with the first dividend to which the
participant is entitled payable after the next Dividend Record Date following
enrollment. A participant may also make Cash Investments of up to $60,000 per
account annually to purchase Common Stock.
9. HOW DOES THE "PARTIAL DIVIDEND REINVESTMENT" OPTION OF THE PLAN WORK?
Participants enrolling in the Partial Dividend Reinvestment option can designate
a specific number of shares on which they wish to receive cash dividends, with
dividends on the balance of shares being reinvested to purchase Common Stock.
Participants may also elect to receive cash dividends on shares they hold in
certificated form, with dividends on shares held in their Plan account being
reinvested. The reinvestment of dividends will commence with the first dividend
to which the participant is entitled payable after the next Dividend Record Date
following enrollment. In addition, a participant may make Cash Investments of up
to $60,000 per account annually to purchase Common Stock.
If a participant has elected this option and subsequently directs that a portion
of his shares are to be sold, transferred, or withdrawn, unless the participant
otherwise directs, all shares on which a participant receives reinvested
dividends will be sold, transferred, or withdrawn prior to the sale, transfer,
or withdrawal of any shares on which a participant receives cash dividends.
10. HOW DOES THE "CASH INVESTMENT ONLY" OPTION OF THE PLAN WORK?
Participants enrolling in the Cash Investment Only option may make Cash
Investments of up to $60,000 per account annually. Dividends earned on all
Common Stock, both in the Plan account and of record, will be paid directly to
the investor in the manner in which dividends are normally paid. The Cash
Investment will purchase additional shares of Common Stock.
NOTE: IF PARTICIPANTS DO NOT INDICATE A PARTICIPATION OPTION ON THE
ENROLLMENT FORM, THEIR ACCOUNT WILL AUTOMATICALLY BE ENROLLED INTO
THE "FULL DIVIDEND REINVESTMENT" OPTION.
11. MAY ARIZONA PUBLIC SERVICE COMPANY PREFERRED STOCK DIVIDENDS BE
REINVESTED IN THE PLAN?
Yes. APS preferred shareholders may reinvest their dividends to purchase Common
Stock by enrolling in the Plan. Preferred shareholders who already own Common
Stock of record or who already participate in the Plan must complete an
Enrollment Form for each issue of preferred stock being reinvested. Preferred
shareholders who do not own Common Stock of record and do not already
participate in the Plan may enroll in the Plan by submitting an Initial Cash
Investment of at least $50 and completing an Enrollment Form for each issue of
preferred stock being reinvested.
12. MAY PARTICIPANTS CHANGE THEIR PARTICIPATION OPTION?
Yes. The participation option may be changed by completing and signing a new
Enrollment Form and returning it to the Company. The change will be effective as
of the next Dividend Record Date following receipt of the new Enrollment Form.
13. MAY THE COMPANY RESTRICT PARTICIPATION IN THE PLAN?
Yes. The Company reserves the right to restrict participation in the Plan if it
believes that such participation may be contrary to the general intent of the
Plan or in violation of applicable law.
INITIAL CASH INVESTMENTS AND CASH INVESTMENTS
14. WHO IS ELIGIBLE TO MAKE CASH INVESTMENTS?
Any Shareholder of Record who has submitted a signed Enrollment Form is eligible
to make Cash Investments regardless of the participation option chosen, subject
to the maximum contribution. See Question 17.
15. WHO IS ELIGIBLE TO MAKE AN INITIAL CASH INVESTMENT?
Any interested investor may submit a signed Enrollment Form and make an Initial
Cash Investment, subject to the minimum and maximum contributions. See Question
17.
16. HOW ARE INITIAL CASH INVESTMENTS AND CASH INVESTMENTS MADE?
Initial Cash Investments and Cash Investments must be made by check, money
order, or wire transfer payable through a U.S. bank or other financial
institution, in U.S. dollars, to Pinnacle West Capital Corporation. Do not send
cash. Initial Cash Investments must be accompanied by a completed Enrollment
Form; an Enrollment Form or a Cash Investment form should accompany Cash
Investments to ensure credit to the proper account.
17. IS THERE A MINIMUM AND MAXIMUM CASH INVESTMENT?
Yes. The minimum Initial Cash Investment is $50. Subsequent Cash Investments may
be any amount. The maximum aggregate Cash Investment (including the Initial Cash
Investment) is $60,000 per account per calendar year.
18. WHEN WILL A PARTICIPANT'S INITIAL CASH INVESTMENT OR CASH INVESTMENT
BE INVESTED?
Initial Cash Investments and Cash Investments will be invested during the
Investment Period of the calendar month immediately following the calendar month
in which the funds are received. Because interest is not paid on funds pending
investment, it is to your benefit to mail your Cash Investments so they are
received shortly before the end of the calendar month. Funds are considered to
be received when delivered, either by postal service or in person, during
Company business hours to the Company's corporate headquarters (see "Shareholder
Information" below for address).
In the event that a check submitted for investment is returned unpaid for any
reason, the Plan Administrator will consider the request for investment of such
funds null and void. Any shares purchased upon the prior credit of such funds
will be immediately removed from the participant's account. The Plan
Administrator will be entitled to sell those shares to satisfy any uncollected
amounts. If the net proceeds of the sale of such shares are insufficient to
satisfy the balance of such uncollected amounts, the Plan Administrator will be
entitled to sell additional shares from the participant's account to satisfy the
uncollected balance.
19. WHEN WILL SHARES PURCHASED WITH INITIAL CASH INVESTMENTS OR CASH
INVESTMENTS BE ENTITLED TO RECEIVE DIVIDENDS?
Shares purchased with an Initial Cash Investment or Cash Investment will be
entitled to dividends if the shares were credited to the participant's account
as of a date preceding the Dividend Record Date for payment of a dividend.
20. MAY A PARTICIPANT REQUEST THAT AN INITIAL CASH INVESTMENT OR CASH
INVESTMENT BE RETURNED?
Yes. A participant may request, in writing, the return of an Initial Cash
Investment or Cash Investment. The funds will be returned if the request is
received by the last Company business day of the month prior to the relevant
Investment Period.
NOTE: INTEREST IS NOT PAID ON FUNDS HELD PENDING INVESTMENT.
REINVESTMENT OF DIVIDENDS
21. IS THERE A MINIMUM OR MAXIMUM AMOUNT FOR REINVESTED DIVIDENDS?
No. Dividends designated for reinvestment through the Plan are not subject to
a minimum or maximum.
22. WHEN WILL A PARTICIPANT'S DIVIDENDS BE REINVESTED?
A participant's dividends will be reinvested during the Investment Period of the
month in which the dividend is payable.
23. WHEN WILL SHARES PURCHASED WITH REINVESTED DIVIDENDS BE ENTITLED TO
RECEIVE DIVIDENDS?
Shares purchased with reinvested dividends will be entitled to dividends on the
Dividend Payment Date following the purchase of such shares.
PURCHASES
24. WHAT IS THE SOURCE OF COMMON STOCK PURCHASED THROUGH THE PLAN?
Common Stock purchased through the Plan will be purchased, at the discretion of
the Company and in accordance with applicable law, either on the open market or
directly from the Company or through a combination of the foregoing. Shares
purchased from the Company may be either authorized but unissued shares or
shares held in the treasury of the Company.
25. HOW IS COMMON STOCK PURCHASED ON THE OPEN MARKET?
Common Stock will be purchased through an independent agent appointed by the
Company. The independent agent will have full discretion in all matters related
to such purchases, including the day and time of purchase, price paid, number of
shares purchased, and the markets or persons through whom the purchases are
made.
26. WHEN ARE SHARES PURCHASED FOR THE PLAN?
Purchases of shares on the open market may begin on the first day of the
relevant Investment Period and will be completed no later than 30 days
thereafter. Dividends not invested in Common Stock within 30 days of the
Dividend Payment Date therefor and Cash Investments not invested in Common Stock
within 35 days of receipt will be promptly returned to participants.
Shares purchased from the Company (newly issued Common Stock or treasury stock)
will be acquired as of the first day of the relevant Investment Period, provided
that the New York Stock Exchange is open on such day. See Question 27.
27. WHEN WILL SHARES BE CREDITED TO A PARTICIPANT'S ACCOUNT?
Participants' shares will be credited to their Plan accounts on the Investment
Date and are considered to be owned by the participant on that day.
If the Investment Date falls on a date when the New York Stock Exchange is
closed, the first day immediately succeeding such day on which the New York
Stock Exchange is open will be the Investment Date.
28. HOW IS THE PURCHASE PRICE OF THE COMMON STOCK DETERMINED?
The purchase price of Common Stock purchased on the open market will be the
weighted average price, including broker commissions, related service charges,
and applicable taxes, of all shares purchased during the Investment Period.
The purchase price of Common Stock purchased from the Company (newly issued
Common Stock or treasury stock) will be the average of the high and low prices
of the Common Stock reported on the New York Stock Exchange Composite Tape as
published in The Wall Street Journal or, for any day on which there is no such
publication, in another generally accepted publication for the first business
day of the relevant Investment Period, provided that the New York Stock Exchange
is open on such day.
If the stock is purchased both on the open market and through the Company, the
purchase price will be the weighted average price of such shares in accordance
with the foregoing two paragraphs.
29. HOW MANY SHARES OF COMMON STOCK WILL BE PURCHASED FOR A PARTICIPANT?
The number of shares purchased for a participant will be equal to the
participant's Cash Investments for the month plus dividends available for
reinvestment divided by the purchase price of the shares. The participant's
account will be credited with the whole and fractional shares on the Investment
Date.
30. CAN A PARTICIPANT REQUEST THE PURCHASE OF A SPECIFIC NUMBER OF SHARES?
No. Since the purchase price of the Common Stock cannot be calculated until the
Common Stock is purchased, a participant may not purchase a specific number of
shares.
CERTIFICATES
31. WILL CERTIFICATES BE ISSUED FOR SHARES PURCHASED THROUGH THE PLAN?
No. The certificates for shares purchased through the Plan are registered in the
name of the Company as Plan Administrator. A certificate will be issued to
participants only upon request.
Participants requesting the issuance of a certificate for their Plan shares
should submit the request in writing to the Plan Administrator, specifying the
number of shares to be issued. Certificates will generally be issued within five
days following the receipt of the request. However, requests received during the
dividend processing period will be delayed. See "Disadvantages of the Plan --
D." Certificates cannot be issued for fractional shares.
The certificate will be issued in the name(s) of the participant(s). Requests to
issue a certificate into another registration must meet the requirements for
transfer of stock. See Question 44.
See Question 9 for information relating to the certification of only a portion
of a participant's Plan shares when the participant has elected the Partial
Dividend Reinvestment option for his shares.
SAFEKEEPING OF CERTIFICATES
32. CAN CERTIFICATES BE RETURNED TO THE COMPANY TO BE HELD IN THE
PARTICIPANT'S PLAN ACCOUNT?
Yes. Certificates for Common Stock may be returned to the Plan Administrator to
take advantage of the safekeeping feature of the Plan. THE CERTIFICATES SHOULD
NOT BE ENDORSED AND REGISTERED MAIL IS RECOMMENDED. The certificates should be
submitted with a letter to the Plan Administrator directing the Plan
Administrator to deposit the shares represented by such certificates into the
Plan account of the participant. Alternatively, the certificates can be
submitted with a new Enrollment Form with the share safekeeping option checked
thereon. Investors may submit certificates for safekeeping upon initial
enrollment in the Plan or at any time while participating in the Plan.
COMMON STOCK SURRENDERED FOR SAFEKEEPING WILL BE TREATED AS SHARES PURCHASED
THROUGH THE PLAN.
SALE OF SHARES
33. HOW MAY PARTICIPANTS SELL THEIR PLAN SHARES?
Participants may sell their Plan shares by submitting a written request to the
Company. The request should indicate the number of shares to be sold and must be
signed by ALL account owners. Shares acquired through and held in the Plan, as
well as shares surrendered for safekeeping, may be sold in this manner. A
request to sell shares is irrevocable after it is received by the Company. The
Company's appointed agent will have full discretion in all matters related to
the sale, including the time of sale, sale price, and the markets or persons
through whom the shares are sold. Participants cannot specify a price at which
to sell their stock.
Shares held outside the Plan may not be sold through the Plan.
See Question 9 for information relating to the sale of only a portion of a
participant's Plan shares when the participant has elected the Partial Dividend
Reinvestment option for his shares.
34. WHEN WILL PLAN SHARES BE SOLD?
Plan shares will generally be sold within five business days following receipt
of the sale request. However, sale requests received during the dividend
processing period will be delayed until the dividend processing period is
completed. See "Disadvantages of the Plan -- D."
A check will be issued for the proceeds of the sale minus the broker
commissions, any related service charges, and applicable taxes, and will be made
payable to the registered account owners only.
TERMINATION OF PLAN PARTICIPATION
35. HOW MAY A PARTICIPANT TERMINATE PARTICIPATION IN THE PLAN?
Participants may terminate participation in the Plan either by selling all the
shares in their Plan account or by having a certificate issued for a specific
number of whole shares in their Plan account and selling the balance of shares.
See Questions 31, 33, and 34. Certificates cannot be issued for fractional
shares; fractional shares must be sold when terminating participation.
Plan participants must notify the Company in writing of their intention to
terminate participation in the Plan, have all account owners sign the request,
and indicate whether they wish to receive a stock certificate or sell their
shares.
Participants terminating their Plan participation will receive a Plan History
Statement detailing the account history. THIS STATEMENT SHOULD BE RETAINED FOR
TAX PURPOSES.
Cash Investments received prior to the request to terminate Plan participation
will be invested during the next Investment Period unless the participant timely
requests the return of that Cash Investment. See Question 20.
The termination of Plan participation will be delayed if the request is received
during the dividend processing period. See "Disadvantages of the Plan -- D."
36. MAY THE COMPANY TERMINATE A PARTICIPANT'S PLAN PARTICIPATION?
Yes. If a participant does not maintain at least one whole share of Common Stock
in the Plan account or does not own any Common Stock of record for which cash
dividends are designated for reinvestment pursuant to the Plan, the
participant's participation may be terminated by the Company upon written notice
to the participant. A participant whose participation has been terminated will
receive a check for the cash value of any fractional share in the Plan account.
In addition, the Company may terminate a participant's participation in the Plan
if it believes that such participation may be contrary to the general intent of
the Plan or in violation of applicable law. The participant will receive a
certificate for whole shares and a check for the cash value of the fractional
share in the Plan account.
COSTS
37. WHAT COSTS ARE ASSOCIATED WITH PARTICIPATION IN THE PLAN?
The only costs associated with Plan participation are the broker commissions,
related service charges, and applicable taxes for the sale or purchase of shares
for a participant's account. All other administrative costs are borne by the
Company.
REPORTS TO PARTICIPANTS
38. WHAT REPORTS ARE SENT TO PARTICIPANTS?
Plan participants will receive an Investment Statement as soon as possible after
each month in which an investment occurs in their Plan account, which will
provide detailed account information for the current calendar year. THIS
STATEMENT SHOULD BE RETAINED FOR TAX PURPOSES.
Participants who have sold, transferred, or withdrawn shares from their Plan
accounts will receive a Plan History Statement detailing the account history.
THIS STATEMENT SHOULD BE RETAINED FOR TAX PURPOSES.
Plan participants will also receive copies of all shareholder communications
such as quarterly reports, annual reports, and notices of shareholder meetings
and proxy materials.
Plan participants will receive an IRS Form 1099-DIV showing total dividends
reported to the Internal Revenue Service which were paid to the participant both
on shares of record and Plan account shares. An IRS form 1099-B will be provided
for reporting the proceeds from the sale of shares through the Plan. See
Question 46 for further information regarding tax reporting.
OTHER INFORMATION
39. WHAT HAPPENS IF THE COMPANY DECLARES A DIVIDEND PAYABLE IN COMMON
STOCK OR A STOCK SPLIT?
Any dividends in the form of shares of Common Stock and any shares resulting
from a Common Stock split on shares held in a participant's Plan account will be
credited to the participant's Plan account.
40. HOW WILL A PARTICIPANT'S SHARES BE VOTED AT MEETINGS OF SHAREHOLDERS?
Participants in the Plan will receive a proxy statement and a proxy card
representing Plan account shares as well as any Common Stock held of record. The
participant's shares will be voted in accordance with the instructions indicated
on the proxy card. Shares for which a proxy is not received will not be voted.
41. WHAT IS THE RESPONSIBILITY OF THE COMPANY AND ITS AGENTS UNDER THE
PLAN?
Neither the Company, in its individual capacity or as Administrator, nor any
independent agent appointed by the Company pursuant to the Plan will be liable
for any act done in good faith or for any good faith omission to act with
respect to the Plan, including, without limitation, any claim of liability
arising out of failure to terminate a participant's account upon such
participant's death prior to receipt of notice in writing of such death or with
respect to the prices or times at which, or sources from which, shares are
purchased or sold for participants, or with respect to any fluctuation in market
value before or after any purchase or sale of shares.
PARTICIPANTS MUST RECOGNIZE THAT THE COMPANY CANNOT ASSURE THEM A PROFIT, OR
PROTECT THEM AGAINST LOSSES, ON SHARES PURCHASED PURSUANT TO THE PLAN. THE
MARKET PRICE OF COMMON STOCK CAN FLUCTUATE SUBSTANTIALLY. PARTICIPANTS ACCEPT
THE RISKS AS WELL AS THE BENEFITS OF THE PLAN.
42. MAY THE PLAN BE CHANGED OR DISCONTINUED?
Yes. The Company reserves the right to suspend, modify, or terminate the Plan at
any time, although shareholder response is expected to justify continuing the
Plan indefinitely. As a result, the Company may register additional shares from
time to time. Any suspension, modification, or termination of the Plan will be
communicated by the Company to all Plan participants.
43. MAY COMMON STOCK HELD IN A PLAN ACCOUNT BE PLEDGED AS COLLATERAL?
No. Common Stock held in a Plan account may not be pledged as collateral.
Participants wishing to use their Common Stock as collateral must have
certificates issued for the shares. The certificates can then be delivered for
collateral.
44. MAY COMMON STOCK HELD IN A PLAN ACCOUNT BE TRANSFERRED OR ASSIGNED TO
ANOTHER PERSON?
Yes. A participant may transfer or assign Plan shares to another person or
entity by meeting the requirements for transfer of stock. Requests for stock
transfer requirements should be sent to:
Pinnacle West Capital Corporation
Stock Transfer Department
P.O. Box 52134
Phoenix, AZ 85072-2134
or by calling the Company at 800-457-2983 or, in Phoenix, at 379-2500.
See Question 9 for information relating to the transfer of only a portion of a
participant's Plan shares when the participant has elected the Partial Dividend
Reinvestment option for his shares.
45. HOW MAY INSTRUCTIONS BE GIVEN TO THE ADMINISTRATOR?
Although currently all instructions from a participant to the Administrator are
required to be in writing, the Administrator may in the future allow certain
instructions to be given by telephone or in any other manner as agreed to by the
Administrator and the participant.
FEDERAL INCOME TAX INFORMATION
46. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF PLAN PARTICIPATION?
The Company believes the following is an accurate summary of the federal tax
consequences of participation in the Plan. YOU ARE ADVISED TO CONSULT YOUR TAX
OR FINANCIAL ADVISOR WITH RESPECT TO FEDERAL, STATE, LOCAL, AND OTHER TAX LAWS
WHICH APPLY TO YOUR SPECIFIC SITUATION.
In general, the dividends paid on Common Stock or APS preferred stock, whether
the shares are held in certificate form by the shareholder or held by the
Company in book-entry or through the Plan, are considered taxable income,
whether received in cash or reinvested through the Plan. The information return
sent to you and the IRS at year-end will provide the information required to
complete your income tax returns.
The tax basis of shares acquired through the reinvestment of dividends will be
equal to the value of dividends reinvested. The tax basis of shares purchased
with Cash Investments will be equal to the amount of such investments.
Upon the sale of either a portion or all of shares from the Plan, a participant
may recognize a capital gain or loss based on the difference between the sales
proceeds and the tax basis in the shares sold, including any fractional shares.
The capital gain or loss will be long-term if the shares were held for more than
one year.
For participants who are subject to U.S. withholding tax, backup withholding, or
foreign taxes, the Company will withhold the required taxes from the gross
dividends or proceeds from the sale of shares. The dividends or proceeds
received by the participant, or dividends reinvested on behalf of the
participant, will be net of the required taxes.
APPLICATION OF PROCEEDS
The Company intends to use the proceeds from the issuance of any newly
issued or treasury shares of Common Stock pursuant to the Plan to fund the
activities of its subsidiaries (APS and its subsidiaries, SunCor Development
Company and its subsidiaries, and El Dorado Investment Company) and for general
corporate purposes. Pursuant to certain of the Company's credit agreements, any
new investments by the Company in its subsidiaries (excluding APS) are generally
restricted to $15 million in the aggregate from December 6, 1989 until the
lenders under those credit agreements are fully repaid. As of the date of this
Prospectus, the Company had not made any such new investments in its
subsidiaries.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this Prospectus by reference to the Company's 1994 Annual Report
on Form 10-K have been audited by Deloitte & Touche LLP, independent auditors,
as stated in their report, which is incorporated herein by reference (which
report expresses an unqualified opinion and includes an explanatory paragraph
relating to the Company's change in method of accounting for income taxes
discussed in Note 3 to these financial statements), and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
LEGAL OPINIONS
The validity of the Common Stock offered hereby has been passed upon for the
Company by Snell & Wilmer L.L.P., One Arizona Center, Phoenix, Arizona 85004.
SHAREHOLDER INFORMATION
PINNACLE WEST CAPITAL CORPORATION
Corporate Headquarters: 400 East Van Buren
Phoenix, AZ 85004
Mailing Address: P.O. Box 52132
Phoenix, AZ 85072-2132
Telephone Numbers: 602-379-2500 In Phoenix
800-457-2983 Nationwide Toll-free
Shareholder Account Information
- -- Stock Transfer Requirements: P.O. Box 52134
Phoenix, AZ 85072-2134
- -- Plan and Account Information: P.O. Box 52133
Phoenix, AZ 85072-2133
Stock Listing Information
- -- Ticker Symbol: PNW on the New York and Pacific Stock
Exchanges
- -- Financial listings: PinWst
Utility Investors Association The Arizona Utility Investors
Association represents the interests of
utility investors throughout the state
of Arizona. If interested, send your
name and address to:
Arizona Utility Investors Association
P.O. Box 34805
Phoenix, AZ 85067
======================================= =======================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY [LOGO]
REPRESENTATION NOT CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH PINNACLE WEST
INFORMATION OR REPRESENTATION MUST NOT CAPITAL CORPORATION
BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS -------------
PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL, OR A SOLICITATION OF ANY OFFER INVESTORS ADVANTAGE PLAN
TO BUY, ANY OF THE SECURITIES OFFERED
HEREBY IN ANY JURISDICTION TO ANY -------------
PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER IN SUCH JURISDICTION. Common Stock
(No Par Value)
-------------
PROSPECTUS
-------------
======================================= =======================================
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-3 and has duly caused this Post-Effective
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Phoenix, State of
Arizona, on March 30, 1995.
PINNACLE WEST CAPITAL CORPORATION
By: RICHARD SNELL
----------------------------------------------------
(Richard Snell, Chairman of the Board of Directors,
President, and Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the 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 Richard Snell and Henry B.
Sargent, 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 additional post-effective amendments, to the Registration
Statement.
Signature Title Date
--------- ----- ----
RICHARD SNELL Principal Executive March 30, 1995
- ---------------------------------------- Officer and Director
(Richard Snell, Chairman of the Board of
Directors, President, and Chief
Executive Officer)
HENRY B. SARGENT Principal Financial March 30, 1995
- ---------------------------------------- Officer, Principal
(Henry B. Sargent, Executive Vice Accounting Officer,
President, and Director
and Chief Financial Officer)
PAMELA GRANT Director March 30, 1995
- ----------------------------------------
(Pamela Grant)
MARTHA O. HESSE Director March 30, 1995
- ----------------------------------------
(Martha O. Hesse)
ROY A. HERBERGER, JR. Director March 30, 1995
- ----------------------------------------
(Roy A. Herberger, Jr.)
WILLIAM S. JAMIESON, JR. Director March 30, 1995
- ----------------------------------------
(William S. Jamieson, Jr.)
JOHN R. NORTON, III Director March 30, 1995
- ----------------------------------------
(John R. Norton, III)
O. MARK DE MICHELE Director March 30, 1995
- ----------------------------------------
(O. Mark De Michele)
DONALD N. SOLDWEDEL Director March 30, 1995
- ----------------------------------------
(Donald N. Soldwedel)
DOUGLAS J. WALL Director March 30, 1995
- ----------------------------------------
(Douglas J. Wall)
Registration No. 33-15190
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Exhibits to
POST-EFFECTIVE AMENDMENT NO. 2
ON
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Pinnacle West Capital Corporation
(Exact name of registrant as specified in its charter)
================================================================================
INDEX TO EXHIBITS
Exhibit No. Description
- -------------- -----------
4.1 Bylaws, amended as of October 23, 1991 (Incorporated by
reference to Exhibit 3.1 to the Company's January 27, 1992
Form 8-K Report, File No. 1-8962)
4.2 Articles of Incorporation restated as of July 29, 1988
(Incorporated by reference to Exhibit 19.1 to the Company's
September 1988 Form 10-Q Report, File No. 1-8962)
4.3 Form of Pinnacle West Capital Corporation Investors Advantage
Plan
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 Exhibit 5)
24 Power of Attorney (see page II-1)
EXHIBIT 4.3
PINNACLE WEST CAPITAL CORPORATION
INVESTORS ADVANTAGE PLAN
Pinnacle West Capital Corporation, an Arizona corporation (the "Company"),
hereby amends and restates, as of May 1, 1995, its Stock Purchase and Dividend
Reinvestment Plan, as previously amended (the "DRIP"), in its entirety to
establish the following Pinnacle West Capital Corporation Investors Advantage
Plan (the "Plan"):
RECITALS:
WHEREAS, the DRIP has been in existence since 1977; and
WHEREAS, the Company desires to amend and restate the DRIP to include other
stock purchase opportunities and services in an effort to enhance its
attractiveness to investors in the Company's common stock, without par value
(the "Common Stock"); and
WHEREAS, the purpose of the Plan is to provide interested investors and
holders of certain securities of the Company and its subsidiaries with a
convenient and economical means of increasing their investment in the Company
through (i) regular investment of cash dividends paid on such securities, (ii)
optional cash investments, and/or (iii) initial cash investments;
NOW, THEREFORE:
ARTICLE I
Definitions
The terms defined in this Article I shall, for all purposes of this Plan,
have the following respective meanings:
Account
The term "Account" shall mean, as to any Participant, the account maintained
by the Administrator evidencing (i) the shares (and/or fraction of a share) of
Common Stock (a) purchased through the Plan and/or (b) deposited by such
Participant into the Plan pursuant to Section 4.1 hereof and credited to such
Participant; (ii) any dividends in the form of shares of Common Stock and any
shares resulting from a Common Stock split on such shares, and (iii) cash held
in the Plan pending investment in Common Stock for such Participant.
Account Shares
The term "Account Shares" shall mean all shares (and/or fraction of a share)
of Common Stock credited to the Account of a Participant by the Administrator,
which shall include shares deposited into the Plan pursuant to Section 4.1
hereof.
Administrator
The term "Administrator" shall mean the individual (who may be an employee
of the Company), bank, trust company, or other entity (including the Company)
appointed from time to time by the Company to act as Administrator hereunder.
Cash Investment Form
The term "Cash Investment Form" shall mean documentation prepared by the
Administrator that may be utilized by a Participant when making an optional cash
investment pursuant to Section 2.4 hereof.
Common Stock
As defined in the Recitals.
Company
As defined in the introduction to the Recitals.
Company Share Purchase Price
The term "Company Share Purchase Price," when used with respect to newly
issued shares of Common Stock, or shares of Common Stock held in the Company's
treasury, shall mean the average of the high and low sales prices of Common
Stock on a given trading day as reported on the New York Stock Exchange
Composite Tape and published in The Wall Street Journal, or, for any day on
which there is no such publication, as published in any other generally accepted
publication designated by the Independent Agent. In the absence of knowledge of
inaccuracy, the Independent Agent may rely upon such prices as published in The
Wall Street Journal or such other publication. In the event no trading is so
reported for a trading day, the Company Share Purchase Price for such shares may
be determined by the Independent Agent on the basis of such market quotations as
it deems appropriate.
Dividend
The term "Dividend" shall mean cash dividends paid on Reinvestment Eligible
Securities.
Dividend Payment Date
The term "Dividend Payment Date" shall mean a date on which a cash dividend
on shares of Common Stock is paid.
Dividend Processing Period
The term "Dividend Processing Period" shall mean a 13-15 business day period
which begins on the Ex-Dividend Date.
Dividend Record Date
The term "Dividend Record Date" shall mean the date fixed for the
determination of shareholders of record who will be entitled to receive a
Dividend payable on a Dividend Payment Date.
DRIP
As defined in the introduction to the Recitals.
Eligible Securities
The term "Eligible Securities" shall mean those securities of the Company
and its subsidiaries, whether issued prior to, on, or after the date hereof, set
forth in Section 6.1 hereof, and such other securities of the Company and its
subsidiaries as the Company may designate, in its sole discretion, pursuant to
Section 6.2 hereof.
Enrollment Form
The term "Enrollment Form" shall mean the documentation that the
Administrator shall require to be completed and received (subject to Section 2.1
hereof with respect to automatic enrollment of DRIP Participants) prior to an
investor's enrollment in the Plan pursuant to Section 2.1 hereof, a
Participant's changing his options under the Plan pursuant to Section 7.1
hereof, or, at the option of a Participant as described in Section 4.1 hereof, a
Participant's depositing shares of Common Stock into the Plan pursuant to
Section 4.1 hereof. An Enrollment Form may also be used by the Administrator for
other purposes as described herein or as determined by the Administrator from
time to time.
Exchange Act
The term "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
Ex-Dividend Date
The term "Ex-Dividend Date" shall mean a date prior to the Dividend Record
Date, based on industry regulations, necessary to allow for the settlement of
traded securities by the Dividend Record Date.
Foreign Person
The term "Foreign Person" shall mean a Person that is a citizen or resident
of, or is organized or incorporated under, or has its principal place of
business in, a country other than the United States, its territories, and
possessions.
Independent Agent
The term "Independent Agent" shall mean an agent independent of the Company
who satisfies applicable legal requirements (including without limitation the
requirements of Rule 10b-6 and Rule 10b-18 promulgated under the Exchange Act)
and who has been selected by the Company, pursuant to Section 10.6 hereof, to
serve as an Independent Agent for purposes of making purchases and sales of
Common Stock under the Plan.
Investment Date
The term "Investment Date" shall mean the date on which the purchase price
for all shares of Common Stock to be purchased during an Investment Period has
been determined. If shares are purchased from the Company pursuant to Section
3.3 hereof, the Investment Date will be the first day of the relevant Investment
Period. If the Investment Date would otherwise fall on a day on which the New
York Stock Exchange is not open, the first day immediately succeeding such day
on which the New York Stock Exchange is open will be the Investment Date.
Investment Period
The term "Investment Period" shall mean the period of each calendar month
during which Common Stock is purchased, beginning on the first business day of
any month in which there is not a Dividend Record Date and on the second
business day of any month in which there is a Dividend Record Date.
Investment Statement
The term "Investment Statement" shall mean a written statement prepared by
the Administrator and sent to a Participant after an Investment Period in which
the Participant's account had investment activity, or otherwise as the
Administrator shall determine to be appropriate or as provided in this Plan,
which statement reflects (i) the purchase price and number of Account Shares
purchased for or credited to the Participant's Account for such Investment
Period, (ii) the total number of Account Shares credited to the Participant's
Account at the date of such statement, and (iii) such additional information
regarding the Participant's Account as the Administrator may determine to be
pertinent to the Participant.
Market Share Purchase Price
The term "Market Share Purchase Price," when used with respect to shares of
Common Stock purchased in the open market, shall mean the weighted average
purchase price per share (including brokerage commissions, any related service
charges, and applicable taxes) of the aggregate number of shares purchased in
the open market for an Investment Date.
Market Share Sales Price
The term "Market Share Sales Price," when used with respect to shares of
Common Stock sold under the Plan, shall mean the weighted average sales price
per share (less brokerage commissions, any related service charges, and
applicable taxes) of the aggregate number of shares sold in the open market for
the relevant period.
Maximum Amount
As defined in Section 2.4 hereof.
Participant
As defined in Section 2.1 hereof.
Person
The term "Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, estate, or unincorporated organization.
Plan
As defined in the introduction to the Recitals.
Plan History Statement
The term "Plan History Statement" shall mean a written statement prepared by
the Administrator and sent to each Participant upon withdrawal of any or all
Account Shares upon the issuance of a certificate therefor or upon the sale of
any or all Account Shares from the Participant's Account, or otherwise as the
Administrator shall determine to be appropriate or as provided in this Plan,
which statement reflects (i) the number of Account Shares so withdrawn and
certificated, (ii) the number of Account Shares so sold, (iii) the number of
Account Shares, if any, remaining in the Participant's Account at the date of
such statement, and (iv) such additional information regarding the Participant's
Account as the Administrator may determine to be pertinent to the Participant.
Reinvestment Eligible Securities
The term "Reinvestment Eligible Securities" shall mean (i) those Eligible
Securities of which a Participant is the record or registered holder and on
which such Participant has elected to have all or a portion of the Dividends
paid reinvested in Common Stock and (ii) a Participant's Account Shares except
for Account Shares as to which the Participant has elected not to have Dividends
reinvested in Common Stock and has notified the Administrator by delivery of a
completed Enrollment Form of such election.
Sales/Transfer Request Form
The term "Sales/Transfer Request Form" shall mean the documentation that the
Administrator may require to be completed and received prior to a Participant's
(i) sale of Account Shares pursuant to Section 5.1 hereof, (ii) gift or transfer
of Account Shares pursuant to Section 5.2 hereof, (iii) withdrawal of Account
Shares pursuant to Section 8.1 hereof (unless such Participant will be the
record holder of such Account Shares after withdrawal), and (iv) termination of
participation in the Plan pursuant to Section 7.3 hereof.
A pronoun or adjective in the masculine gender includes the feminine gender,
and the singular includes the plural, unless the context clearly indicates
otherwise.
ARTICLE II
Participation
Section 2.1 Participation. Any Person, whether or not a record holder of
Common Stock, may elect to participate in the Plan; provided, however, that if
such Person is a Foreign Person, he must provide evidence satisfactory to the
Administrator that his participation in the Plan would not violate local laws
applicable to the Company, the Plan, or such Foreign Person.
An election by a Person to participate in the Plan shall be made by
completing and returning to the Administrator an Enrollment Form and, subject to
the last two paragraphs of this Section 2.1 below, (i) electing to have
Dividends on Eligible Securities of which such Person is the record holder
invested in Common Stock pursuant to Section 2.2 hereof, (ii) depositing
certificates representing Common Stock of which such person is the record holder
into the Plan pursuant to Section 4.1 hereof, or (iii) making an initial cash
investment pursuant to Section 2.3 hereof.
Any Person who has met such requirements and has made and not revoked such
election is herein referred to as a "Participant." Notwithstanding the
foregoing, each participant in the DRIP on the date of effectiveness hereof is
automatically a Participant without submitting a new Enrollment Form; provided,
however, that any such Participant who wishes to change his current
participation in any way must submit a new Enrollment Form to the Administrator.
A Participant may elect to participate in any or all of the forms of investment
provided in Sections 2.2 through 2.4 hereof and to utilize the Plan's
safekeeping services provided in Section 4.1 hereof by submitting an Enrollment
Form designating such election to the Administrator; provided, however, that,
alternatively, a Participant may elect to make optional cash investments
pursuant to Section 2.4 hereof by submitting to the Administrator a completed
optional Cash Investment Form in lieu of an Enrollment Form.
A holder of Reinvestment Eligible Securities who is not also a holder of
Common Stock of record or in a Plan Account, must either become a Common Stock
holder of record or make an initial cash investment pursuant to Section 2.3
hereof in order to enroll in this Plan.
The Company reserves the right to restrict participation in this Plan if it
believes that such participation may be contrary to the general intent of this
Plan or in violation of applicable law.
Section 2.2 Dividend Reinvestment. A Participant may elect any of the Full
Dividend Reinvestment, Partial Dividend Reinvestment, and Cash Only Investment
options described in Subsections 2.2.1, 2.2.2, and 2.2.3 hereof. A Participant
may also elect to have Dividends on Reinvestment Eligible Securities other than
Common Stock reinvested in Common Stock pursuant to Subsection 2.2.5 hereof.
Subsection 2.2.1 Full Dividend Reinvestment. Participants enrolling in the
"Full Dividend Reinvestment" option will have Dividends earned on all Common
Stock, both in their Plan Accounts and held of record by such Participants,
reinvested in shares (and/or a fraction of a share) of Common Stock to be
credited to their Accounts in lieu of receiving such Dividends directly.
Subsection 2.2.2 Partial Dividend Reinvestment. Participants enrolling in
the "Partial Dividend Reinvestment" option will have Dividends on a designated
number of shares of Reinvestment Eligible Securities held of record or in their
Plan Accounts paid directly to the Participant in the manner otherwise
associated with payment of Dividends, with the balance being reinvested in
shares (and/or a fraction of a share) of Common Stock to be credited to their
Accounts in lieu of receiving such Dividends directly.
Subsection 2.2.3 Cash Investment Only. Participants enrolling in the "Cash
Investment Only" option may make cash investments pursuant to Sections 2.3 and
2.4 hereof. Dividends on Eligible Securities held by such Participants of record
or in their Plan Accounts will not be reinvested. Such Dividends will be paid by
check or in the manner otherwise associated with payment of such Dividends.
Subsection 2.2.4 No Option Chosen. If Participants do not indicate a
participation option as described in Subsections 2.2.1, 2.2.2, and 2.2.3 hereof
on their Enrollment Forms, except as otherwise provided for DRIP participants in
Section 2.1 hereof, such Participants will be deemed to have elected the Full
Dividend Reinvestment option described in Subsection 2.2.1 hereof.
Subsection 2.2.5 Dividends on Reinvestment Eligible Securities Other Than
Common Stock. A Participant may elect to have Dividends on all or a portion of
his Reinvestment Eligible Securities other than Common Stock reinvested in
shares (and/or a fraction of a share) of Common Stock to be credited to his
Account in lieu of receiving such Dividends directly. If a Participant elects to
reinvest only a portion of the Dividends received in such Reinvestment Eligible
Securities, that portion of such Dividends not reinvested in Common Stock will
be sent to the Participant by check or in the manner otherwise associated with
payment of such Dividends. In order to have Dividends reinvested on Reinvestment
Eligible Securities other than Common Stock, a Participant must complete and
submit to the Administrator a separate Enrollment Form for each series of such
Reinvestment Eligible Securities.
Section 2.3 Initial Cash Investment. A Person who is not already a Common
Stock shareholder of record may become a Participant by returning to the
Administrator a completed Enrollment Form, accompanied by an initial cash
payment of at least $50, by check, money order, or wire transfer payable through
a U.S. bank or other U.S. financial institution, in U.S. dollars, to Pinnacle
West Capital Corporation, to be invested in Common Stock pursuant to Subsections
3.3.2 or 3.4.2 hereof.
Section 2.4 Optional Cash Investments. A Participant may elect to make cash
payments at any time or from time to time to the Plan, in any amount, by check,
money order, or wire transfer payable through a U.S. bank or other U.S.
financial institution, in U.S. dollars, to Pinnacle West Capital Corporation,
for investment in Common Stock pursuant to Subsections 3.3.2 or 3.4.2 hereof;
provided, however, that a Participant may not invest more than $60,000 in
aggregate amount in any calendar year (the "Maximum Amount") and provided
further that any such payment must be accompanied by a new Enrollment Form or a
Cash Investment Form. For purposes of determining whether the Maximum Amount has
been reached, initial cash investments made pursuant to Section 2.3 hereof shall
be counted as optional cash investments.
ARTICLE III
Dividend Reinvestment and Stock Purchase
Section 3.1 Dividend Reinvestment. Dividends as to which reinvestment has
been elected by a Participant shall be paid to the Administrator or its nominee
on behalf of such Participant. Dividends shall be reinvested, at the Company's
election, subject to Section 10.7 hereof, in either (i) newly issued shares of
Common Stock or shares of Common Stock held in the Company's treasury purchased
from the Company or (ii) shares of Common Stock purchased in the open market.
Section 3.2 Investment of Optional Cash Payments and Initial Cash Payments.
Any optional cash investments and initial cash investments received by the
Administrator from a Participant by the last Company business day of a calendar
month, and as to which no request for return has been received by the last
Company business day of the month preceding the next following Investment
Period, shall be invested, during the next following Investment Period, in
either (i) newly issued shares of Common Stock or shares of Common Stock held in
the Company's treasury purchased from the Company or (ii) shares of Common Stock
purchased in the open market.
Section 3.3 Investment and Reinvestment in Newly Issued or Treasury Shares.
Dividend reinvestment in newly issued shares of Common Stock or shares of Common
Stock held in the Company's treasury shall be governed by Subsection 3.3.1
hereof. Any optional cash investments and/or initial cash investments to be
invested in either newly issued shares of Common Stock or shares of Common Stock
held in the Company's treasury will be governed by Subsection 3.3.2 hereof.
Subsection 3.3.1 Dividend Reinvestment. As soon as practicable following an
Investment Date with respect to which the Company elects to issue new shares of
Common Stock or sell shares of Common Stock held in the Company's treasury to
the Plan in order to effect the reinvestment of Dividends, the Company shall
issue to the Administrator upon the Company's receipt of the funds described in
Subsection 3.3.3(a) below, for crediting by the Administrator to the Account of
a Participant as of such Investment Date, shares (and/or fraction of a share
rounded to three decimal places or other fraction determined from time to time
by the Administrator) of Common Stock as provided in Subsection 3.3.3 below.
Such shares shall be issued or sold to, and registered in the name of, the
Administrator or its nominee as custodian for such Participant. No interest
shall be paid on Dividends held pending reinvestment pursuant to this Subsection
3.3.1.
Subsection 3.3.2 Cash Investments. As soon as practicable following an
Investment Date with respect to which the Company elects to issue new shares of
Common Stock or sell shares of Common Stock held in the Company's treasury to
the Plan in order to effect the investment of optional cash investments and/or
initial cash investments, the Company shall issue to the Administrator upon the
Company's receipt of the funds described in Subsection 3.3.3(b) below, for
crediting by the Administrator to the Account of a Participant as of such
Investment Date, shares (and/or fraction of a share rounded to three decimal
places or other fraction determined from time to time by the Administrator) of
Common Stock as provided in Subsection 3.3.3 below. Such shares shall be issued
or sold to, and registered in the name of, the Administrator or its nominee as
custodian for such Participant. No interest shall be paid on cash investments
held pending investment pursuant to this Subsection 3.3.2.
Subsection 3.3.3 Number of Shares to be Issued. If shares are to be issued
or sold pursuant to Subsections 3.3.1 or 3.3.2 above, the number of shares
(and/or fraction of a share rounded to three decimal places or other fraction
determined from time to time by the Administrator) of Common Stock that will be
credited to the account of a Participant as of an Investment Date will be equal
to (a) the amount of any Dividends paid to the Administrator on behalf of such
Participant since the preceding Investment Date plus (b) the amount of any
optional cash investments and/or initial cash investment received by the
Administrator from such Participant by the last Company business day of the
calendar month preceding the then applicable Investment Period and not
previously invested, subject to the provisions of Section 3.6 hereof, divided by
(c) the Company Share Purchase Price on such Investment Date.
Section 3.4 Investment and Reinvestment in Shares Purchased in the Open
Market. Dividend reinvestment in shares of Common Stock purchased in the open
market shall be governed by Subsection 3.4.1 hereof. Any optional cash
investments and/or initial cash investments to be invested in shares of Common
Stock purchased in the open market shall be governed by Subsection 3.4.2 hereof.
Subsection 3.4.1 Dividend Reinvestment. During an Investment Period with
respect to which the Company elects to effect reinvestment of Dividends in
shares of Common Stock purchased in the open market, the Administrator shall (if
it is an Independent Agent), or shall cause an Independent Agent to, apply the
amount of any Dividends paid to the Administrator on behalf of a Participant
since the preceding Investment Date to the purchase of shares (and/or fraction
of a share rounded to three decimal places or other fraction determined from
time to time by the Administrator) of Common Stock in the open market as
provided in Subsection 3.4.3 below. Such shares shall be registered in the name
of the Administrator or its nominee as custodian for such Participant. No
interest shall be paid on Dividends held pending reinvestment pursuant to this
Subsection 3.4.1.
Subsection 3.4.2 Cash Investments. During an Investment Period with respect
to which the Company elects to effect the investment of optional cash
investments and/or initial cash investments in shares of Common Stock purchased
in the open market, the Administrator shall (if it is an Independent Agent), or
shall cause an Independent Agent to, purchase for crediting by the Administrator
to the Account of a Participant a number of shares (and/or fraction of a share
rounded to three decimal places or other fraction determined from time to time
by the Administrator) of Common Stock in the open market as provided in Section
3.4.3 below. Such shares shall be registered in the name of the Administrator or
its nominee as custodian for such Participant. No interest shall be paid on cash
investments held pending investment pursuant to this Subsection 3.4.2.
Subsection 3.4.3 Number of Shares to be Purchased and Other Matters.
Purchases in the open market pursuant to Subsection 3.4.1 and Subsection 3.4.2
hereof may begin on the first day of the applicable Investment Period and shall
be completed no later than 30 days from such date, unless completion at a later
date is necessary or advisable under applicable law, including without
limitation any federal securities laws. Open market purchases pursuant to this
Subsection 3.4.1 and Subsection 3.4.2 hereof may be made on any securities
exchange on which the Common Stock is traded, in the over-the-counter market or
by negotiated transactions, and may be upon such terms and subject to such
conditions with respect to price and delivery to which the Independent Agent
(including the Administrator if it is also an Independent Agent) may agree. With
regard to open market purchases of shares of Common Stock pursuant to Subsection
3.4.1 and Subsection 3.4.2 hereof, none of the Company, the Administrator (if it
is not also serving as the Independent Agent), or any Participant shall have any
authority or power to direct the time or price at which shares of Common Stock
may be purchased, the markets on which such shares are to be purchased
(including on any securities exchange, in the over the counter market, or in
negotiated transactions), or the selection of the broker or dealer (other than
the Independent Agent) through or from whom purchases may be made, except that
the timing of such purchases must be made in accordance with the terms and
conditions of the Plan. For the purpose of making, or causing to be made,
purchases of shares of Common Stock pursuant to Subsection 3.4.1 and Subsection
3.4.2 hereof, and sales of Account Shares pursuant to Section 5.1 hereof, the
Administrator may authorize the Independent Agent to commingle each
Participant's funds with those of all other Participants and to offset purchases
of shares of Common Stock against sales of shares of Common Stock to be made for
Participants, resulting in a net purchase or a net sale of shares. The number of
shares (and/or fraction of a share rounded to three decimal places or other
fraction determined from time to time by the Administrator) of Common Stock that
shall be credited to a Participant's Account with respect to and as of an
Investment Date pursuant to Subsection 3.4.1 and Subsection 3.4.2 shall be equal
to (a) the amount of any Dividends paid to the Administrator on behalf of such
Participant since the preceding Investment Date plus (b) the amount of any
optional cash investments and/or initial cash investment received by the
Administrator from such Participant by the last Company business day of the
calendar month preceding the then applicable Investment Period and not
previously invested, subject to the provisions of Section 3.6 hereof, divided by
(c) the Market Share Purchase Price with respect to such Investment Date.
Section 3.5 Request to Stop Investment. If a written request to stop
investment of optional cash investments and/or an initial cash investment is
received by the Administrator from a Participant no later than the last Company
business day of the calendar month preceding the Investment Period during which
investment of such cash investments would be effected pursuant to the provisions
of this Plan, such optional cash investments and/or initial cash investment
shall not be invested in Common Stock and shall be returned to such Participant.
If such a request is not received by the Administrator by such time, such
optional cash investments or initial cash investment shall be invested in shares
of Common Stock for such Participant's Account.
Section 3.6 Return of Uninvested Monies. Any Dividends to be reinvested in
shares of Common Stock pursuant to Subsection 3.3.1 or Subsection 3.4.1 hereof
and not reinvested in shares of Common Stock within 30 days of the applicable
Dividend Payment Date shall be promptly returned to the Participant at his
address of record by First Class Mail. Any optional cash investments and initial
cash investments to be invested in shares of Common Stock pursuant to Subsection
3.3.2 or Subsection 3.4.2 hereof and not invested in shares of Common Stock
within 35 days of receipt by the Administrator or the Company shall be promptly
returned to the Participant at his address of record by First Class Mail.
Section 3.7 Uncollectible Funds. In the event that a check submitted for
investment is returned unpaid for any reason, the Administrator will consider
the request for investment of such funds null and void. Any shares purchased
upon the prior credit of such funds will be immediately removed from the
Participant's Account. The Administrator will be entitled to sell those shares
to satisfy any uncollected amounts. If the net proceeds of the sale of such
shares are not sufficient to satisfy the balance of such uncollected amounts,
the Administrator may sell additional shares from the Participant's Account to
satisfy the uncollected balance.
ARTICLE IV
Safekeeping Services for Deposited Common Stock
Section 4.1 Deposited Common Stock. A Participant may elect to have
certificates representing shares of Common Stock of which the Participant is the
record holder deposited into the Plan by delivering such certificates to the
Administrator, along with either (i) an Enrollment Form with the certificate
safekeeping option checked thereon or (ii) a letter with respect to such
certificates directing the Administrator to deposit the shares represented by
such certificates into the Plan Account of the Participant. Shares of Common
Stock so deposited shall be transferred into the name of the Administrator or
its nominee and credited to the depositing Participant's Account. Shares of
Common Stock deposited into the Plan pursuant to this Section 4.1 shall be
treated as shares purchased pursuant to the Plan.
Section 4.2 Withdrawal of Common Stock Deposited Pursuant to Section 4.1.
Shares of Common Stock deposited pursuant to Section 4.1 hereof may be withdrawn
from the Plan pursuant to Section 8.1 hereof.
ARTICLE V
Sale of Account Shares; Gift or Transfer of Account Shares
Section 5.1 Sale of Account Shares. A Participant may request, at any time,
that all or a portion of his Account Shares be sold by delivering to the
Administrator a completed Sale/Transfer Request Form or other written
instructions to that effect. The Administrator (if it is not also an Independent
Agent) shall forward such sale instructions to the Independent Agent as soon as
practicable after receipt thereof. The Independent Agent shall make such sales
as soon as practicable (in accordance with any applicable stock transfer
requirements and federal and state securities laws) after processing such sale
instructions. As soon as practicable following the receipt of proceeds from such
sale, the Administrator shall mail by First Class Mail to such Participant at
his address of record a check in an amount equal to (a) the Market Share Sales
Price multiplied by (b) the number of his Account Shares sold.
With regard to open market sales of Account Shares pursuant to this Section
5.1, none of the Company, the Administrator (if it is not also serving as the
Independent Agent) or any Participant shall have any authority or power to
direct the time or price at which shares of Common Stock may be sold, the
markets on which such shares are to be sold (including on any securities
exchange, in the over-the-counter market, or in negotiated transactions), or the
selection of the broker or dealer (other than the Independent Agent) through or
from whom sales may be made, except that the timing of such sales must be made
in accordance with the terms and conditions of the Plan.
Section 5.2 Gift or Transfer of Account Shares. A Participant may elect to
transfer (whether by gift, private sale, or otherwise) ownership of all or a
portion of his Account Shares to the Account of another Participant or establish
an Account for a Person not already a Participant by delivering to the
Administrator a completed Sale/Transfer Request Form to that effect and a stock
assignment (stock power) acceptable to the Administrator along with such other
documentation as may be required by the Administrator. If the transferee is not
already a Participant, the Administrator will require the completion and
delivery of an Enrollment Form for the transferee prior to the transfer. No
fraction of a share of Common Stock credited to the transferor's Account shall
be transferred unless the transferor's entire Account is transferred.
Account Shares transferred in accordance with the preceding paragraph shall
continue to be registered in the name of the Administrator as custodian and
shall be credited to the transferee's Account. Unless otherwise requested by a
transferee who is already a Participant on a completed Enrollment Form, the
reinvestment of Dividends on such transferred Account Shares in shares of Common
Stock under the Plan shall be made in proportion to the reinvestment level
(i.e., full, partial or none) of the transferee's other Account Shares. Unless
otherwise requested by the transferor, the Administrator shall deliver an
Investment Statement to such transferee showing the transfer of such Account
Shares into his Account. The transferor may request that the Administrator
deliver such Investment Statement to the transferor for personal delivery to the
transferee and/or the transferor may request that the Administrator deliver to
such transferee a gift certificate. The transferor may request that the
Administrator send the gift certificate directly to such transferee with the
first Investment Statement following such transfer, or request that the
Administrator deliver such gift certificate to the transferor for personal
delivery to the transferee. The Administrator shall comply with any such request
of a transferor relating to Investment Statements and/or gift certificates as
soon as practicable following receipt of such request.
Section 5.3 Reinvestment of Dividends on Remaining Account Shares. If only a
portion of a Participant's Account Shares are Reinvestment Eligible Securities
and the Participant elects to (i) sell a portion of his Account Shares pursuant
to Section 5.1 hereof, (ii) transfer a portion of his Account Shares pursuant to
Section 5.2 hereof, or (iii) withdraw a portion of his Account Shares pursuant
to Section 8.1 hereof, all of the Account Shares which are Reinvestment Eligible
Securities shall be sold, transferred, or withdrawn, as the case may be, before
any Account Shares which are not Reinvestment Eligible Securities are sold,
transferred, or withdrawn unless the Participant gives specific instructions to
the contrary in connection with such sale, transfer, or withdrawal of Account
Shares.
ARTICLE VI
Eligible Securities
Section 6.1 Eligible Securities. The following securities of the Company and
its subsidiaries shall be Eligible Securities:
(i) Common Stock;
(ii) All series of preferred stock of Arizona Public Service Company.
Section 6.2 Additional Eligible Securities. The Company may from time to
time or at any time designate other securities of the Company and its
subsidiaries as Eligible Securities by notifying the Administrator in writing of
the designation of such securities as Eligible Securities.
ARTICLE VII
Treatment of Accounts
Section 7.1 Changing Plan Options. A Participant may elect to change his
Plan options, including (i) changing the reinvestment levels (i.e., Full
Dividend Reinvestment, Partial Dividend Reinvestment, or Cash Investment Only)
of Dividends on Reinvestment Eligible Securities and (ii) changing the
designation of Reinvestment Eligible Securities, by delivering to the
Administrator a new Enrollment Form to that effect. To be effective with respect
to any Dividend Payment Date, the Enrollment Form with respect to such
Reinvestment Eligible Securities must be received by the Administrator prior to
the Dividend Record Date relating to such Dividend Payment Date. If the
Enrollment Form is not received by the Administrator by such time, such
instructions shall not become effective until after such Dividend Payment Date.
The shares of Common Stock purchased from the reinvestment of such Dividend
shall be credited to the Participant's Account. After the Administrator's
receipt of effective option changing instructions, Dividends on Reinvestment
Eligible Securities as to which the reinvestment election has been revoked will
be paid directly to the Participant in the manner otherwise associated with the
payment of Dividends.
Section 7.2 [Intentionally Left Blank]
Section 7.3 Right of Termination of Participation. If a Participant's
Sale/Transfer Request Form or other written instructions acceptable to the
Administrator indicates the Participant's desire to terminate his participation
in the Plan, within 30 days of the receipt of such request, the Administrator
shall either mail certificates representing all whole Account Shares, if any, by
First Class Mail to the Participant at his address of record, pursuant to
Section 8.1 hereof, along with a check for the cash value of any fraction of a
share of Common Stock credited to his Account, or shall cause the Account Shares
to be sold, or gifted or transferred pursuant to Sections 5.1 or 5.2,
respectively, in any such case, as shall have been directed by the Participant.
Section 7.4 Stock Splits, Stock Dividends and Rights Offerings. Any shares
or other securities representing stock splits or other noncash distributions on
Account Shares shall be credited to such Participant's Account. Stock splits,
combinations, recapitalizations and similar events affecting the Common Stock
shall, as to shares credited to Accounts of Participants, be credited to such
Accounts on a pro rata basis.
In the event of a rights offering, a Participant shall receive rights based
upon the total number of whole shares of Common Stock credited to his Account.
Section 7.5 Shareholder Materials; Voting Rights. The Administrator shall
send or forward to each Participant all applicable proxy solicitation materials
and other shareholder materials or consent solicitation materials. Participants
shall have the exclusive right to exercise all voting rights respecting Account
Shares credited to their respective Accounts. A Participant may vote all of his
Account Shares in person or by proxy. A Participant's proxy card shall include
all his Account Shares and shares of Common Stock of which he is the record
holder. Account Shares shall not be voted unless a Participant or his proxy
votes them. Fractions of shares of Common Stock shall be voted.
Solicitation of the exercise of Participants' voting rights by the
management of the Company and others under a proxy or consent provision
applicable to all holders of Common Stock shall be permitted. Solicitation of
the exercise of Participants' tender or exchange offer rights by management of
the Company and others shall also be permitted. The Administrator shall notify
the Participants of each occasion for the exercise of their voting rights or
rights with respect to a tender offer or exchange offer within a reasonable time
before such rights are to be exercised. Such notification shall include all
information distributed to the shareholders of the Company by the Company
regarding the exercise of such rights.
Section 7.6 Investment and Plan History. As soon as practicable after each
Investment Period, the Administrator shall send an Investment Statement to each
Participant for whom Dividends were reinvested or shares of Common Stock were
purchased or who deposited Common stock into the Plan pursuant to Section 4.1
hereof during such Investment Period. Additionally, the Administrator shall send
a Plan History Statement to each Participant following a sale, transfer, or
withdrawal of Account Shares by a Participant.
ARTICLE VIII
Certificates and Fractions of Shares
Section 8.1 Certificates. A Participant, at any time or from time to time,
may request in writing to receive a certificate for all or a portion of his
whole Account Shares and the Administrator shall, as soon as practicable after
receipt of such written request, mail such certificate by First Class Mail to
such Participant at his address of record; provided, however, that upon the
mailing of such certificate the shares of Common Stock represented by such
certificate shall no longer be Account Shares but shall remain Reinvestment
Eligible Securities (except to the extent such Participant has elected not to
have Dividends on such Account Shares reinvested in Common Stock).
Section 8.2 Fractional Share. Fractions of shares of Common Stock shall be
credited to Accounts as provided in Article III hereof; provided, however, that
no certificate for a fraction of a share shall be distributed to any Participant
at any time; and provided, further, that the Company shall issue and sell only
whole shares of Common Stock to the Administrator in respect of Dividends
reinvested in, and purchases made by the Administrator hereunder of, newly
issued shares or shares of Common Stock held in the Company's treasury.
ARTICLE IX
Concerning the Plan
Section 9.1 Suspension, Modification, and Termination. The Company may at
any time and from time to time, at its sole option, suspend, modify, amend, or
terminate the Plan, in whole, in part or in respect of Participants in one or
more jurisdictions; provided, however, no such amendment shall decrease the
Account of any Participant or result in a distribution to the Company of any
amount credited to the Account of any Participant. Upon complete termination of
the Plan, the Accounts of all Participants (or in the case of partial
termination of the Plan, the Accounts of all affected Participants) shall be
treated as if each such Participant had elected to terminate his participation
in the Plan pursuant to Section 7.3 hereof. The Administrator shall promptly
send each affected Participant notice of such suspension, modification or
termination.
Section 9.2 Rules and Regulations. The Company may from time to time adopt
such administrative rules and regulations concerning the Plan as it deems
necessary or desirable for the administration of the Plan. The Company shall
have the power and authority to interpret the terms and the provisions of the
Plan and shall interpret and construe the Plan and reconcile any inconsistency
or supply any omitted detail in a manner consistent with the general terms of
the Plan and applicable law.
Section 9.3 Costs. All costs of administration of the Plan shall be paid by
the Company; provided, however, that any brokerage commissions, service charges,
or applicable taxes incurred in connection with open market purchases and sales
of shares of Common Stock made under the Plan shall be borne by the
Participants.
Section 9.4 Termination of a Participant. If a Participant does not have at
least one whole Account Share or own or hold any other Common Stock of record
for which Dividends are designated for reinvestment pursuant to this Plan, the
Participant's participation in the Plan may be terminated by the Company, in its
sole discretion, after written notice is mailed to such Participant at his
address of record. Additionally, the Company, in its sole discretion, may
terminate any Participant's participation in the Plan after written notice
mailed in advance to such Participant at his address of record, if the Company
believes that such Participant's participation may be contrary to the general
intent of the Plan or in violation of applicable law. Upon such termination, the
Account of such Participant shall be treated as if he had elected to terminate
his participation in the Plan pursuant to Section 7.3 hereof.
ARTICLE X
Administration of the Plan
Section 10.1 Selection of an Administrator. The Administrator shall be
appointed by the Company. The Administrator's appointment to serve as such may
be revoked by the Company at any time. The Administrator may resign at any time
upon reasonable notice to the Company. In the event that no Administrator is
appointed, the Company shall be deemed to be the Administrator for purposes of
the Plan. The Company shall be the initial Administrator.
Section 10.2 Compensation. The officers of the Company shall make such
arrangements regarding compensation, reimbursement of expenses and
indemnification of the Administrator and any Independent Agent as they from time
to time deem reasonable and appropriate.
Section 10.3 Authority and Duties of Administrator. The Administrator shall
have the authority to undertake any act necessary to fulfill its duties as set
forth in the various provisions of the Plan. Upon receipt, the Administrator
shall deposit all Dividends, optional cash investments and initial cash
investments in the Trust Account. The Administrator shall maintain appropriate
records of the Accounts of Participants.
Section 10.4 Liability of the Company, the Administrator and Any Independent
Agent. The Company, the Administrator, and any Independent Agent shall not be
liable for any act done in good faith, or for the good faith omission to act in
administering or performing their duties with respect to the Plan, including,
without limitation, any claim of liability arising out of failure to terminate a
Participant's Account upon such Participant's death prior to receipt of notice
in writing of such death, or with respect to the prices at which shares are
purchased or sold for a Participant's Account and the times when such purchases
and sales are made, or with respect to any loss or fluctuation in the market
value after the purchase or sale of such shares.
Section 10.5 Records and Reports. The Administrator shall keep appropriate
records concerning the Plan, Accounts of Participants, purchases and sales of
Common Stock made under the Plan, and Participants' addresses of record and
shall send shareholder materials and statements to each Participant in
accordance with the provisions of Sections 7.5 and 7.6 hereof.
Section 10.6 Selection of Independent Agent. Any Independent Agent serving
in such capacity pursuant to the Plan shall be selected by the Company, and the
Administrator and the Company, or either of them, shall, subject to the
provisions hereof, make such arrangements and enter into such agreements with
the Independent Agent in connection with the activities contemplated by the Plan
as the Administrator and the Company, or either of them, deem reasonable and
appropriate.
Section 10.7 Source of Shares of Common Stock. The Company shall not change
the source of shares of Common Stock purchased by Participants in the Plan
(i.e., either (i) newly issued shares of Common Stock or shares of Common Stock
held in the Company's treasury purchased from the Company or (h) shares of
Common Stock purchased in the open market) more than once in any 12-month
period. At any time that the source of shares of Common Stock purchased in the
Plan are shares purchased in the open market, the Company shall not exercise its
right to change the source of shares absent a determination by the Company's
Board of Directors or Finance Committee of the Board of Directors that the
Company has a need to raise additional capital or there is another compelling
reason for a change; provided, however, that, if necessary and requested by the
Independent Agent at any time, the Company may settle fractional shares with
treasury stock even if otherwise shares are being purchased on the open market.
ARTICLE XI
Miscellaneous Provisions
Section 11.1 Controlling Law. This Plan shall be construed, regulated and
administered under the laws of the State of Arizona.
Section 11.2 Acceptance of Terms and Conditions of Plan by Participants.
Each Participant, by completing an Enrollment Form and as a condition of
participation herein, for himself, his heirs, executors, administrators, legal
representatives and assigns, approves and agrees to be bound by the provisions
of this Plan and any subsequent amendments hereto, and all actions of the
Company and the Administrator hereunder.
Section 11.3 Receipt by Administrator. Monies, Enrollment Forms, and other
communications will be considered to be received when delivered, either by
postal service or in person, during business hours of the Company or the
Administrator, as the case may be, to the Company's or Administrator's corporate
headquarters.
Exhibit 5
March 31, 1995
Pinnacle West Capital Corporation
400 East Van Buren Street, Suit 700
Phoenix, Arizona 85004
Ladies and Gentlemen:
Reference is made to the Post-Effective Amendment No. 2 (the "Post-Effective
Amendment") to the Registration Statement on Form S-3 No. 33-15190 (as so
amended, the "Registration Statement") relating to the Pinnacle West Capital
Corporation Investors Advantage Plan (the "Plan") to be filed by you on March
31, 1995, with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records, agreements, and other instruments,
certificates, orders, opinions, correspondence with public officials,
certificates provided by your officers and representatives, and other documents,
as we have deemed necessary or advisable for the purposes of rendering the
opinions set forth herein.
Based upon the foregoing, it is our opinion that:
1. All requisite action, other than any action on the part of the proposed
offerees, to make valid each of the proposed transactions will have been taken
when (i) the Post-Effective Amendment shall have become effective, and (ii) you
shall have complied with state securities or "blue sky" laws with respect to the
offer and sale of the shares of common stock, no par value (the "Common Stock")
registered pursuant to the Registration Statement.
2. Upon completion of the foregoing steps, the Common Stock, when (i) the
same shall have been issued, sold, and delivered, and (ii) the purchase price
therefor has been paid to you, each as contemplated in the Post-Effective
Amendment and in any additional post-effective amendment to the Registration
Statement, will be validly issued, fully paid and non-assessable.
Consent is hereby given to the use of this opinion as part of the
Post-Effective Amendment and to the use of our name whenever it appears in the
Post-Effective Amendment and the related prospectus.
Very truly yours,
Snell & Wilmer L.L.P.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 to Registration Statement No. 33-15190 of Pinnacle West Capital
Corporation on Form S-3 of our report dated March 3, 1995 (which expresses an
unqualified opinion and includes an explanatory paragraph relating to the
Company's change in method of accounting for income taxes discussed in Note 3 to
those financial statements), appearing in the Annual Report on Form 10-K of
Pinnacle West Capital Corporation for the year ended December 31, 1994, and to
the reference to us under the heading "Experts" in the Prospectus, which is part
of such Registration Statement.
Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Phoenix, Arizona
March 28, 1995
