As filed with the Securities and Exchange Commission on July 7, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
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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, Suite 700, Phoenix, Arizona 85004
(Address of Principal Executive Office) (Zip Code)
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ARIZONA PUBLIC SERVICE COMPANY DIRECTOR EQUITY PLAN
(Full Title of Plan)
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Michael S. Ash With a copy to:
400 East Van Buren Street Matthew P. Feeney
Suite 700 SNELL & WILMER L.L.P.
Phoenix, Arizona 85004 One Arizona Center
Phoenix, Arizona 85004-0001
(Name and Address of Agent for Service)
(602) 379-2500
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered(1) Registered Share Price Fee
- --------------------------------------------------------------------------------
Common Stock, 25,000 Shares $29.9375 $748,437.50 $227.00
No Par Value
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee on the basis of the average of the high and low prices of the
Company's Common Stock on the Consolidated Tape on June 27, 1997.
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<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by the Company with
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and are incorporated herein by
reference:
1. Annual Report on Form 10-K for the year ended
December 31, 1996.
2. Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
3. 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 subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Officers and Directors
The Arizona Business Corporation Act (the "Act") permits
extensive indemnification of present and former directors, officers, employees
or agents of an Arizona corporation, whether or not authority for such
indemnification is contained in the indemnifying corporation's articles of
incorporation or bylaws. Specific authority for indemnification of present and
former directors and officers, under certain circumstances, is contained in
Article VII of the Company's Bylaws. Under the Act, in order for a corporation
to provide indemnification, a majority of the corporation's disinterested
directors, independent legal counsel or shareholders must find that the conduct
of the individual to be indemnified was in good faith and that the individual
reasonably believed that the conduct was in the corporation's best interests (in
the case of conduct in an "official capacity" with the corporation) or that the
conduct was at least not opposed to the corporation's best interests (in all
other cases). In the case of any criminal proceeding, the finding must be to the
effect that the individual had no reasonable cause to believe the conduct was
unlawful. Indemnification is permitted with respect to expenses, judgements,
fines and amounts paid in settlement by such individuals.
Indemnification under the Act is permissive, except in the
event of a successful defense, in which case a director, officer, employee or
agent must be indemnified against reasonable expenses, including attorneys'
fees, incurred in connection with the proceeding. In addition, the Act requires
Arizona corporations to indemnify any "outside director" (a director who is not
an officer, employee or holder of five percent or more of any class of the
corporation's stock) against liability unless (i) the corporation's articles of
incorporation limit such indemnification, (ii) the outside director is adjudged
liable in a proceeding by or in the right of the corporation or in any other
proceeding charging improper personal benefit to the director, or (iii) a court
determines, before payment to the outside director, that the director failed to
meet the standards of conduct described in the preceding paragraph. A court may
also order that an individual be indemnified if the court finds that the
individual is fairly and reasonably entitled to indemnification in light of all
of the relevant circumstances, whether or not the individual has met the
standards of conduct in this and in the preceding paragraph.
Insurance is maintained on a regular basis (and not
specifically in connection with this offering) against liabilities arising on
the part of directors and officers out of their performance in such capacities
or arising on the part of the Company out of its foregoing indemnification
provisions, subject to certain exclusions and to the policy limits.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
Exhibit No. Description
----------- -----------
4.1 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.
4.2 Bylaws, amended as of February 21, 1996, and
Rights Agreement, incorporated by reference
to Exhibits 3.1 and 4.1, respectively, to
the Company's 1995 Form 10-K Report and the
Company's 1990 Form 10-K Report, File No.
1-8962.
5.1 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 5.1).
24 Power of Attorney (see page 6).
99 Arizona Public Service Company Director
Equity Plan.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "1933 Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such
information in this registration statement.
(2) That, for the purpose of determining any liability under
the 1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the
4
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securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by the registrant by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix, State of Arizona, as of July 3, 1997.
PINNACLE WEST CAPITAL CORPORATION
By: /s/ Richard Snell
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Richard Snell, Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each person whose signature appears below
hereby authorizes Richard Snell, William J. Post, and George A. Schreiber, Jr.,
and each of them, as attorneys-in-fact, to sign his or her name on his or her
behalf, individually and in each capacity designated below, and to file any
additional amendments, including post-effective amendments to this Registration
Statement.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard Snell Chairman of the Board and July 3, 1997
- ---------------------------- Chief Executive Officer
Richard Snell (Principal Executive Officer)
/s/ William J. Post President and Director July 3, 1997
- ----------------------------
William J. Post
/s/ George A. Schreiber, Jr. Executive Vice President and July 3, 1997
- ---------------------------- Director (Principal Financial
George A. Schreiber, Jr. Officer and Principal
Accounting Officer)
/s/ Pamela Grant Director July 3, 1997
- ----------------------------
Pamela Grant
/s/ Roy A. Herberger, Jr. Director July 3, 1997
- ----------------------------
Roy A. Herberger, Jr.
/s/ Martha O. Hesse Director July 3, 1997
- ----------------------------
Martha O. Hesse
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ William S. Jamieson, Jr. Director July 3, 1997
- ----------------------------
William S. Jamieson, Jr.
/s/ John R. Norton, III Director July 3, 1997
- ----------------------------
John R. Norton, III
/s/ Humberto S. Lopez Director July 3, 1997
- ----------------------------
Humberto S. Lopez
/s/ Douglas J. Wall Director July 3, 1997
- ----------------------------
Douglas J. Wall
</TABLE>
7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Page in Sequential Numbering
Exhibit System in Manually Signed Original
No. Description On Which Exhibits May Be Found
--- ----------- ------------------------------
<S> <C> <C>
4.1 Articles of Incorporation, Restated as (Incorporated by reference to Exhibit
of July 29, 1988. 19.1 to the Company's September
1988 Form 10-Q Report, File No. 1-
8962)
4.2 Bylaws, amended as of February 21, (Incorporated by reference to Exhibits
1996, and Rights Agreement. 3.1 and 4.1, respectively, to the
Company's 1995 Form 10-K Report
and the Company's 1990 Form 10-K
Report, File No. 1-8962)
5.1 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 5.1)
25 Power of Attorney. (see page 6)
99 Arizona Public Service Company
Director Equity Plan.
</TABLE>
8
EXHIBIT 5.1
July 7, 1997
VIA EDGAR
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Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Arizona Public Service Company Director Equity Plan
Ladies and Gentlemen:
We have acted as counsel to Pinnacle West Capital Corporation, an
Arizona corporation (the "Company"), in connection with its Registration
Statement on Form S-8 (the "Registration Statement") filed under the Securities
Act of 1933, relating to the registration of 25,000 shares of its Common Stock,
no par value (the "Shares"), issuable pursuant to the Arizona Public Service
Company Director Equity Plan (the "Plan").
In that connection, we have examined such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Articles of Incorporation and Bylaws of the Company.
Based upon the foregoing, it is our opinion that the Shares, when
issued in accordance with the terms of the Plan, will be validly issued, fully
paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever it appears in the
Registration Statement.
Very truly yours,
/s/ Snell & Wilmer LLP.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Pinnacle West Capital Corporation on Form S-8 of our report dated March 5, 1997
appearing in the Annual Report on Form 10-K of Pinnacle West Capital Corporation
for the year ended December 31, 1996.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Phoenix, Arizona
July 2, 1997
Arizona Public Service Company Director Equity Plan
Benefit - On each Date of Grant, beginning July 1, 1997, Pinnacle West Capital
Corporation ("Pinnacle West") will issue to each Plan Participant who meets the
stock ownership requirements described below, solely from treasury shares, a
number of shares (rounded to the nearest whole share) of Pinnacle West's common
stock, no par value ("Common Stock"), determined by dividing $6,000 by the Fair
Market Value (such shares of Common Stock are hereinafter referred to as the
"Plan Shares").
Plan Participants - Members, as of the relevant Date of Grant, of the Board of
Directors of Arizona Public Service Company ("APS") who are not employees of
APS, Pinnacle West, or any of their respective subsidiaries.
Stock Ownership Requirements - During the first calendar year in which a
Participant is eligible to receive Plan Shares, (a) he or she must have owned at
least 200 shares of Common Stock as of the June 30 preceding the Date of Grant
to receive the Plan Shares on such Date of Grant or (b) he or she must own at
least 200 shares of Common Stock on or before the December 31 following the Date
of Grant. In the case of clause (b) of the immediately preceding sentence, the
Participant will receive Plan Shares promptly following the Company's
verification of the Participant's acquisition of the requisite number of shares
of Common Stock. In subsequent years, a Participant must otherwise own the
requisite number of shares of Common Stock as of the June 30 preceding the Date
of Grant to receive Plan Shares, and the amount of Common Stock that a
Participant must own to receive the Plan Shares will increase by 200 shares
until it reaches a maximum of 1,000 shares. For example, on June 30, 1998, a
Plan Participant must own 400 shares of Common Stock to receive the Plan Shares
on July 1, 1998, assuming the Plan Participant first became eligible to receive
Plan Shares on July 1, 1997. These levels of stock ownership will be subject to
periodic review by the Pinnacle West Board or the Pinnacle West Human Resources
Committee.
Certain Terms -
"Date of Grant" means the first business day of July.
"Fair Market Value" means the average closing price of the Common Stock on The
New York Stock Exchange for the ten trading days ending on and including the
trading day immediately preceding the Date of Grant.
