Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Form S-3 of Pinnacle West 29 105K
2: EX-1.1 Form of Underwriting Agreement 13 57K
3: EX-4.1 Indenture Dated 12/1/00 - Senior Debt 64 304K
4: EX-4.2 Indenture Dated 12/1/00 - Subordinate Debt 72 331K
5: EX-5.1 Opinion of Snell & Wilmer 2 10K
6: EX-12.1 Computation of Ratio of Earnings 1 7K
7: EX-23.1 Consent of Deloitte & Touche LLP 1 6K
8: EX-25.1 Form T-1 Statement of Eligibility - Senior Debt 4 21K
9: EX-25.2 Form T-1 Stmt of Eligibility - Subordinate Debt 4 21K
As filed with the Securities and Exchange Commission on December 21, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
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 of incorporation) (I.R.S. Employer
Identification Number)
400 East Van Buren, Suite 700
Phoenix, Arizona 85004
(602) 379-2500
(Address, including zip code and telephone number including area code,
of registrant's principal executive offices)
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MATTHEW P. FEENEY
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85004-0001
(602) 382-6239
(Name, address, including zip code and telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
by market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration Statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
[Enlarge/Download Table]
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Each Class of to be Price Offering Registration
Securities to be Registered Registered Per Unit Price Fee
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Debt Securities............ (1)(3) (2) $500,000,000(1)(2)(3) $132,000(4)
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(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$500,000,000. If any such securities are issued at an original issue
discount, then the aggregate initial offering price as so discounted shall
not exceed such amount.
(2) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(3) Subject to Footnote (1), there are being registered hereunder $500,000,000
principal amount of Debt Securities as may be sold, from time to time, by
the Registrant.
(4) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE AN OFFER OR SALE IS PROHIBITED.
SUBJECT TO COMPLETION, DATED DECEMBER 21, 2000
Prospectus
PINNACLE WEST CAPITAL CORPORATION
$500,000,000
Debt Securities
We may offer and sell debt securities from time to time in one or more
offerings. This prospectus provides you with a general description of the debt
securities we may offer.
Each time we sell debt securities, we will provide a supplement to this
prospectus that contains specific information about the offering and the terms
of the debt securities. The supplement may also add, update, or change
information contained in this prospectus. You should carefully read this
prospectus and any supplement before you invest in any of our debt securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is ___________ _____, 2000
TABLE OF CONTENTS
Page
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About This Prospectus..........................................................3
Forward-Looking Statements.....................................................3
Where You Can Find More Information............................................5
Business of Pinnacle West Capital Corporation..................................6
Ratio of Earnings to Fixed Charges.............................................6
Use of Proceeds................................................................6
Description of Debt Securities.................................................7
Global Securities.............................................................16
Regarding the Trustees........................................................17
Plan of Distribution..........................................................18
Experts.......................................................................18
Legal Opinions................................................................19
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ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration statement that we filed
with the United States Securities and Exchange Commission, or the SEC. You
should rely only on the information contained or incorporated by reference in
this prospectus and in any supplement. We have not authorized any other person
to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. We will not make an
offer to sell these securities in any jurisdiction where the offer or sale is
not permitted. You should assume that the information appearing in this
prospectus and the supplement to this prospectus is accurate only as of the
dates on their covers. Our business, financial condition, results of operations,
and prospects may have changed since those dates.
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement, and the additional
information described under the heading "Where You Can Find More Information"
may contain forward-looking statements within the meaning of the safe harbor of
the Private Securities Litigation Reform Act of 1995. These statements are
subject to risks and uncertainties and are based on the beliefs and assumptions
of our management, based on information currently available to our management.
When we use words such as "believes," "expects," "anticipates," "intends,"
"plans," "estimates," "should," or similar expressions, we are making
forward-looking statements.
Forward-looking statements are not guarantees of performance. They involve
risks, uncertainties, and assumptions. Our future results may differ materially
from those expressed in these forward-looking statements. Many of the factors
that will determine these results are beyond our ability to control or predict.
These factors include, but are not limited to:
* the ongoing restructuring of the electric industry;
* the outcome of regulatory proceedings relating to restructuring;
* regulatory, tax, and environmental legislation;
* our ability to successfully compete outside our traditional regulated
markets;
* regional economic conditions, which could affect customer growth;
* the cost of debt and equity capital;
* weather variations affecting customer usage;
* technological developments in the electric industry;
* the successful completion of large-scale construction projects;
* the value of El Dorado Investment Company's investment in a
technology-related venture capital partnership;
* successfully managing market risks;
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* the strength of the real estate market; and
* other uncertainties, all of which are difficult to predict and many of
which are beyond our control.
You are cautioned not to put undue reliance on any forward-looking
statements. We claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform Act of 1995 for
any forward-looking statements contained in this prospectus and any prospectus
supplement.
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WHERE YOU CAN FIND MORE INFORMATION
AVAILABLE INFORMATION
We file annual, quarterly, and special reports, and other information with
the SEC. Our SEC filings are available to the public over the Internet at the
SEC's web site: http://www.sec.gov. You may also read and copy any document we
file at the SEC's public reference rooms in Washington, D.C., New York, New
York, and Chicago, Illinois. You may call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Reports and other information
concerning us can also be inspected and copied at the offices of the New York
Stock Exchange at 20 Broad Street, New York, New York 10005, and the Pacific
Stock Exchange at 301 Pine Street, San Francisco, California 94104.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until all securities are sold under this prospectus.
* Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
* Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
June 30, and September 30, 2000; and
* Current Reports on Form 8-K dated July 12 and October 26, 2000.
You may request a copy of these filings and will receive a copy of these
filings, at no cost, by writing or telephoning us at the following address:
Pinnacle West Capital Corporation
Office of the Secretary
Station 9046
P.O. Box 53999
Phoenix, Arizona 85072-3999
(602) 250-5608
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BUSINESS OF PINNACLE WEST CAPITAL CORPORATION
We were incorporated in 1985 under the laws of Arizona and are engaged,
through our subsidiaries, in the generation, transmission, and distribution of
electricity; in the sale of energy and related products and services; in real
estate development; and in venture capital investment. Our principal executive
offices are located at 400 East Van Buren, Suite 700, Phoenix, Arizona 85004,
602-379-2500.
The following information describes our subsidiaries. Arizona Public
Service Company (APS), our major subsidiary and Arizona's largest electric
utility, provides retail and wholesale electric service to the entire state with
the exception of Tucson and about one-half of the Phoenix area. APS also
generates, sells, and delivers electricity to wholesale customers in the western
United States. SunCor Development Company is a developer of residential,
commercial, and industrial real estate projects in Arizona, New Mexico, and
Utah. El Dorado Investment Company is primarily a venture capital firm. APS
Energy Services Company, Inc. was formed in 1998 and sells energy and -related
products and services in competitive retail markets in the western United
States. Pinnacle West Energy Corporation, which was formed in 1999, is the
subsidiary through which we intend to conduct our unregulated generation
operations.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratio of our earnings to
fixed charges for each of the indicated periods:
Nine Months
Ended Twelve Months Ended
------------- ---------------------------------------------------
September 30, December 31,
------------- ---------------------------------------------------
2000 1999 1998 1997 1996 1995
---- ---- ---- ---- ---- ----
3.94 3.19 2.97 2.74 2.43 2.22
For the purposes of these computations, earnings are defined as the sum of
our pre-tax income plus our fixed charges and the fixed charges of our
subsidiaries. Fixed charges consist of interest on debt, amortization of debt
discount, premium, and expense, and an estimated interest factor in rentals.
USE OF PROCEEDS
We intend to use the proceeds from the sale of debt securities for general
corporate purposes, which may include capital expenditures, the repayment of
indebtedness, the funding of working capital, acquisitions and stock repurchases
and/or capital infusions into one or more of our subsidiaries for any of those
purposes. The use of proceeds from the sale of debt securities will be set forth
in a prospectus supplement relating to each offering of debt securities.
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DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description highlights the general terms of the debt
securities. When we offer debt securities in the future, the prospectus
supplement will explain the particular terms of those securities and the extent
to which any of these general provisions will not apply.
The debt securities will be our unsecured obligations. The debt securities
may be issued in one or more new series under:
* an Indenture, dated as of December 1, 2000, between The Bank of New
York and us, in the case of subordinated debt securities; or
* an Indenture, dated as of December 1, 2000, between The Bank of New
York and us, in the case of senior debt securities.
Because we are structured as a holding company, all existing and future
indebtedness and other liabilities of our subsidiaries will be effectively
senior in right of payment to our debt securities, whether senior debt
securities or subordinated debt securities. Neither of the above Indentures
limits our ability or the ability of our subsidiaries to incur additional
indebtedness in the future. The assets and cash flows of our subsidiaries will
be available, in the first instance, to service their own debt and other
obligations and our ability to have the benefit of their assets and cash flows,
particularly in the case of any insolvency or financial distress affecting our
subsidiaries, would arise only through our equity ownership interests in our
subsidiaries and only after their creditors had been satisfied. Additional
information is provided below under "Subordination" as to the allocation of
outstanding indebtedness on our part and on the part of our subsidiaries.
We have summarized selected provisions of the Indentures below. The summary
is not complete. We have filed the forms of the Indentures as exhibits to the
registration statement. You should read the Indentures in their entirety,
including the definitions of certain terms, together with this prospectus and
the prospectus supplement before you make any investment decision. Although
separate Indentures are used for subordinated debt securities and senior debt
securities, the description of the Indenture in this section applies to both
Indentures, unless otherwise noted.
You should refer to the prospectus supplement attached to this prospectus
for the following information about a new series of debt securities:
* title of the debt securities;
* the aggregate principal amount of the debt securities or the series of
which they are a part;
* the date on which the debt securities mature;
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* the interest rate;
* when the interest on the debt securities accrues and is payable;
* the record dates;
* places where principal, premium, or interest will be payable;
* periods within which, and prices at which we can redeem debt
securities at our option;
* any obligation on our part to redeem or purchase debt securities
pursuant to a sinking fund or at the option of the holder;
* denominations and multiples at which debt securities will be issued if
other than $1,000;
* any index or formula from which the amount of principal or any premium
or interest may be determined;
* any allowance for alternative currencies and determination of value;
* whether the debt securities are defeasible under the terms of the
Indenture;
* whether we are issuing the debt securities as global securities;
* any additional or different events of default and any change in the
right of the trustee or the holders to declare the principal amount
due and payable if there is any default;
* any addition to or change in the covenants in the Indenture; and
* any other terms.
We may sell the debt securities at a substantial discount below their
principal amount. The prospectus supplement may describe special federal income
tax considerations that apply to debt securities sold at an original issue
discount or to debt securities that are denominated in a currency other than
United States dollars.
Other than the protections described in this prospectus and in the
prospectus supplement, holders of debt securities would not be protected by the
covenants in the Indenture from a highly-leveraged transaction.
SUBORDINATION
The Indenture relating to the subordinated debt securities states that,
unless otherwise provided in a supplemental indenture or a board resolution, the
debt securities will be subordinate to all senior debt. This is true whether the
senior debt is outstanding as of the date of the Indenture or is incurred
afterwards. The balance of the information under this heading assumes that a
supplemental indenture or a board resolution results in a series of debt
securities being subordinated obligations.
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The Indenture states that we cannot make payments of principal, premium, or
interest on the subordinated debt if:
* the principal, premium or interest on senior debt is not paid when due
and the applicable grace period for the default has ended and the
default has not been cured or waived; or
* the maturity of any senior debt has been accelerated because of a
default.
The Indenture provides that we must pay all senior debt in full before the
holders of the subordinated debt securities may receive or retain any payment if
our assets are distributed to our creditors upon any of the following:
* dissolution;
* winding-up;
* liquidation;
* reorganization, whether voluntary or involuntary;
* bankruptcy;
* insolvency;
* receivership; or
* any other proceedings.
The Indenture provides that when all amounts owing on the senior debt are
paid in full, the holders of the subordinated debt securities will be subrogated
to the rights of the holders of senior debt to receive payments or distributions
applicable to senior debt.
The Indenture defines senior debt as the principal, premium, interest and
any other payment due under any of the following, whether outstanding at the
date of the Indenture or thereafter incurred, created or assumed:
* all of our debt evidenced by notes, debentures, bonds, or other
securities we sell for money;
* all debt of others of the kinds described in the preceding bullet
point that we assume or guarantee in any manner; and
* all renewals, extensions, or refundings of debt of the kinds described
in either of the two preceding bullet points.
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However, the preceding will not be considered senior debt if the document
creating the debt or the assumption or guarantee of the debt states that it is
not superior to or that it is on equal footing with the subordinated debt
securities.
The Indenture does not limit the aggregate amount of senior debt that we
may issue. As of September 30, 2000, our outstanding senior debt (excluding our
subsidiaries) was approximately $170 million. In addition, as of September 30,
2000, our subsidiaries, principally APS, had approximately $2.2 billion of debt
outstanding, of which $811 million represented APS first mortgage bonds or
senior notes, both of which are directly or indirectly secured by substantially
all of APS' assets. As discussed above under "General", our debt securities,
whether senior debt securities or subordinated securities, are structurally
subordinated to the debt securities and other obligations of our subsidiaries.
FORM, EXCHANGE, AND TRANSFER
Each series of debt securities will be issuable only in fully registered
form and without coupons. In addition, unless otherwise specified in a
prospectus supplement, the debt securities will be issued in denominations of
$1,000 and multiples of $1,000. We, the trustee, and any of our agents may treat
the registered holder of a debt security as the absolute owner for the purpose
of making payments, giving notices, and for all other purposes.
The holders of debt securities may exchange them for any other debt
securities of the same series, in authorized denominations and equal principal
amount. However, this type of exchange will be subject to the terms of the
Indenture and any limitations that apply to global securities.
A holder may transfer debt securities by presenting the endorsed security
at the office of a security registrar or at the office of any transfer agent we
designate. The holder will not be charged for any exchange or registration of
transfer, but we may require payment to cover any tax or other governmental
charge in connection with the transaction. We have appointed the trustee under
each Indenture as security registrar. A prospectus supplement will name any
transfer agent we designate for any debt securities if different from the
security registrar. We may designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts at any time, except that we will maintain a
transfer agent in each place of payment for debt securities.
If the debt securities of any series are to be redeemed in part, we will
not be required to do any of the following:
* issue, register the transfer of, or exchange any debt securities of
that series and/or tenor beginning 15 days before the day of mailing
of a notice of redemption of any debt security that may be selected
for redemption and ending at the close of business on the day of the
mailing; or
* register the transfer of or exchange any debt security selected for
redemption, except for an unredeemed portion of a debt security that
is being redeemed in part.
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PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, we will
pay interest on a debt security on any interest payment date to the person in
whose name the debt security is registered.
Unless otherwise indicated in the applicable prospectus supplement, the
principal, premium, and interest on the debt securities of a particular series
will be payable at the office of the paying agents that we may designate.
However, we may pay any interest by check mailed to the address, as it appears
in the security register, of the person entitled to that interest. Also, unless
otherwise indicated in the applicable prospectus supplement, the corporate trust
office of the trustee in The City of New York will be our sole paying agent for
payments with respect to debt securities of each series. Any other paying agent
that we initially designate for the debt securities of a particular series will
be named in the applicable prospectus supplement. We may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts, except that
we will maintain a paying agent in each place of payment for the debt securities
of a particular series.
All money that we pay to a paying agent for the payment of the principal,
premium, or interest on any debt security that remains unclaimed at the end of
two years after the principal, premium, or interest has become due and payable
will be repaid to us, and the holder of the debt security may look only to us
for payment.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
Unless otherwise indicated in the applicable prospectus supplement, we may
not:
* consolidate with or merge into any other entity;
* convey, transfer, or lease our properties and assets substantially as
an entirety to any entity; or
* permit any entity to consolidate with or merge into us or convey,
transfer, or lease its properties and assets substantially as an
entirety to us,
unless the following conditions are met:
* the successor entity is a corporation, partnership, trust, or other
entity organized and validly existing under the laws of any domestic
jurisdiction and assumes our obligations on the debt securities and
under the Indenture;
* immediately after giving effect to the transaction, no event of
default, and no event which, after notice or lapse of time or both,
would become an event of default, shall have occurred and be
continuing; and
* other conditions are met.
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Upon any merger, consolidation, or transfer or lease of properties, the
successor person will be substituted for us under the Indenture, and,
thereafter, except in the case of a lease, we will be relieved of all
obligations and covenants under the Indenture and the debt securities.
EVENTS OF DEFAULT
Each of the following will be an event of default under the Indenture with
respect to debt securities of any series:
* our failure to pay principal of or any premium on any debt security of
that series when due;
* our failure to pay any interest on any debt securities of that series
when due, and the continuance of that failure for 30 days;
* our failure to deposit any sinking fund payment, when due, in respect
of any debt securities of that series;
* our failure to perform any of our other covenants in the Indenture
relating to that series and the continuance of that failure for 90
days after written notice has been given by the trustee or the holders
of at least 25% in principal amount of the outstanding debt securities
of that series;
* bankruptcy, insolvency, or reorganization events involving us; and
* any other event of default for that series described in the applicable
prospectus supplement.
If an event of default occurs and is continuing other than an event of
default relating to bankruptcy, insolvency, or reorganization, either the
trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the affected series may declare the principal
amount of the debt securities of that series to be due and payable immediately.
In the case of any debt security that is an original issue discount security or
the principal amount of which is not then determinable, the trustee or the
holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series may declare the portion of the principal amount of the
debt security specified in the terms of such debt security to be immediately due
and payable upon an event of default.
If an event of default involving bankruptcy, insolvency, or reorganization
occurs, the principal amount of all the debt securities of the affected series
will automatically, and without any action by the trustee or any holder, become
immediately due and payable. After any acceleration, but before a judgment or
decree based on acceleration, the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series may rescind and annul
the acceleration if all events of default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the Indenture.
The trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the holders,
unless the holders have offered the
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trustee reasonable indemnity. Subject to provisions for the indemnification of
the trustee, the holders of a majority in principal amount of the outstanding
debt securities of any series will have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the
debt securities of that series.
No holder of a debt security of any series will have any right to institute
any proceeding under the Indenture, or for the appointment of a receiver or a
trustee, or for any other remedy under the Indenture, unless:
* the holder has previously given the trustee written notice of a
continuing event of default with respect to the debt securities of
that series;
* the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made written request,
and the holder or holders have offered reasonable indemnity, to the
trustee to institute the proceeding as trustee; and
* the trustee has failed to institute the proceeding, and has not
received from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series a direction
inconsistent with the request within 60 days after the notice,
request, and offer of indemnity.
The limitations provided above do not apply to a suit instituted by a
holder of a debt security for the enforcement of payment of the principal,
premium, or interest on the debt security on or after the applicable due date.
We are required to furnish to the trustee annually a certificate of various
officers stating whether or not we are in default in the performance or
observance of any of the terms, provisions, and conditions of the Indenture and,
if so, specifying all known defaults.
MODIFICATION AND WAIVER
In limited cases the trustee, as well as us, may make modifications and
amendments to the Indenture without the consent of the holders of any series of
debt securities. The trustee may make modifications and amendments to the
Indenture with the consent of the holders of not less than 66 2/3% in aggregate
principal amount of the outstanding debt securities of each series affected by
the modification or amendment. However, without the consent of the holder of
each outstanding debt security affected, no modification or amendment may:
* change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
* reduce the principal amount of, or any premium or interest on, any
debt security;
* reduce the amount of principal of an original issue discount security
or any other debt security payable upon acceleration of the maturity
of the security;
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* change the place or currency of payment of principal of, or any
premium or interest on, any debt security;
* impair the right to institute suit for the enforcement of any payment
on or with respect to any debt security; or
* reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is required for
modification or amendment of the Indenture necessary for waiver of
compliance with certain provisions of the Indenture or of certain
defaults, or modify the provisions of the Indenture relating to
modification and waiver.
Compliance with certain restrictive provisions of the Indenture may be
waived by the holders of not less than 66 2/3% in aggregate principal amount of
the outstanding debt securities of any series. The holders of a majority in
principal amount of the outstanding debt securities of any series may waive any
past default under the Indenture, except:
* a default in the payment of principal, premium, or interest; and
* a default under covenants and provisions of the Indenture which cannot
be amended without the consent of the holder of each outstanding debt
security of the affected series.
In determining whether the holders of the requisite principal amount of the
outstanding debt securities have given or taken any direction, notice, consent,
waiver, or other action under the Indenture as of any date:
* the principal amount of an outstanding original issue discount
security will be the amount of the principal that would be due and
payable upon acceleration of the maturity on that date,
* if the principal amount payable at the stated maturity of a debt
security is not determinable, the principal amount of the outstanding
debt security will be an amount determined in the manner prescribed
for the debt security; and
* the principal amount of an outstanding debt security denominated in
one or more foreign currencies will be the U.S. dollar equivalent of
the principal amount of the debt security or, in the case of a debt
security described in the previous clause above, the amount described
in that clause.
If debt securities have been fully defeased or if we have deposited money
with the trustee to redeem debt securities, they will not be considered
outstanding.
Except in limited circumstances, we will be entitled to set any day as a
record date for the purpose of determining the holders of outstanding debt
securities of any series entitled to give or take any direction, notice,
consent, waiver, or other action under the Indenture. In limited
14
circumstances, the trustee will be entitled to set a record date for action by
holders. If a record date is set for any action to be taken by holders of a
particular series, the action may be taken only by persons who are holders of
outstanding debt securities of that series on the record date. To be effective,
the action must be taken by holders of the requisite principal amount of the
debt securities within a specified period following the record date. For any
particular record date, this period will be 180 days or any other shorter period
as we may specify. The period may be shortened or lengthened, but not beyond 180
days.
DEFEASANCE AND COVENANT DEFEASANCE
We may elect to have the provisions of the Indenture relating to defeasance
and discharge of indebtedness, or defeasance of restrictive covenants in the
Indenture, applied to the debt securities of any series, or to any specified
part of a series. The prospectus supplement describing a series of debt
securities will state whether we can make these elections for that series.
DEFEASANCE AND DISCHARGE
We will be discharged from all of our obligations with respect to the debt
securities of a series if we deposit with the trustee money in an amount
sufficient to pay the principal, premium, and interest on the debt securities of
that series when due in accordance with the terms of the Indenture and the debt
securities. We can also deposit securities that will provide the necessary
monies. However, we will not be discharged from the obligations to exchange or
register the transfer of debt securities, to replace stolen, lost, or mutilated
debt securities, to maintain paying agencies, and to hold moneys for payment in
trust. The defeasance or discharge may occur only if we deliver to the trustee
an opinion of counsel stating that we have received from, or there has been
published by, the United States Internal Revenue Service a ruling, or there has
been a change in tax law, in either case to the effect that holders of such debt
securities:
* will not recognize gain or loss for federal income tax purposes as a
result of the deposit, defeasance, and discharge; and
* will be subject to federal income tax on the same amount, in the same
manner, and at the same times as would have been the case if the
deposit, defeasance, and discharge were not to occur.
DEFEASANCE OF COVENANTS
We may elect to omit compliance with restrictive covenants in the Indenture
and any additional covenants that may be described in the applicable prospectus
supplement for a series of debt securities. This election will preclude some
actions from being considered defaults under the Indenture for the applicable
series. In order to exercise this option, we will be required to deposit, in
trust for the benefit of the holders of debt securities, funds in an amount
sufficient to pay the principal, premium and interest on the debt securities of
the applicable series. We may also deposit securities that will provide the
necessary monies. We will also be required to deliver to the trustee an opinion
of counsel to the effect that holders of the debt securities will not
15
recognize gain or loss for federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be subject to federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if the deposit and defeasance were not to occur. If we
exercise this option with respect to any debt securities and the debt securities
are declared due and payable because of the occurrence of any event of default,
the amount of funds deposited in trust would be sufficient to pay amounts due on
the debt securities at the time of their respective stated maturities but may
not be sufficient to pay amounts due on the debt securities on any acceleration
resulting from an event of default. In that case, we would remain liable for the
additional payments.
GOVERNING LAW
The law of the State of New York will govern the Indenture and the debt
securities.
GLOBAL SECURITIES
Some or all of the debt securities of any series may be represented, in
whole or in part, by one or more global securities, which will have an aggregate
principal amount equal to that of the debt securities they represent. We will
register each global security in the name of a depositary or nominee identified
in a prospectus supplement and deposit the global security with the depositary
or nominee. Each global security will bear a legend regarding the restrictions
on exchanges and registration of transfer referred to below and other matters
specified in a supplemental indenture to the Indenture.
No global security may be exchanged for debt securities registered, and no
transfer of a global security may be registered, in the name of any person other
than the depositary for the global security or any nominee of the depositary,
unless:
* the depositary has notified us that it is unwilling or unable to
continue as depositary for the global security or has ceased to be
qualified to act as depositary;
* a default has occurred and is continuing with respect to the debt
securities represented by the global security; or
* any other circumstances exist that may be described in the applicable
supplemental indenture and prospectus supplement.
We will register all securities issued in exchange for a global security or
any portion of a global security in the names specified by the depositary.
As long as the depositary or its nominee is the registered holder of a
global security, the depositary or nominee will be considered the sole owner and
holder of the global security and the debt securities that it represents. Except
in the limited circumstances referred to above, owners of beneficial interests
in a global security will not:
* be entitled to have the global security or debt securities registered
in their names;
16
* receive or be entitled to receive physical delivery of certificated
debt securities in exchange for a global security; and
* be considered to be the owners or holders of the global security or
any debt securities for any purpose under the Indenture.
We will make all payments of principal, premium, and interest on a global
security to the depositary or its nominee. The laws of some jurisdictions
require that purchasers of securities take physical delivery of securities in
definitive form. These laws make it difficult to transfer beneficial interests
in a global security.
Ownership of beneficial interests in a global security will be limited to
institutions that have accounts with the depositary or its nominee, referred to
as Participants, and to persons that may hold beneficial interests through
Participants. In connection with the issuance of any global security, the
depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of debt securities represented by the global
security to the accounts of its Participants. Ownership of beneficial interests
in a global security will only be shown on records maintained by the depositary
or the Participant. Likewise, the transfer of ownership interests will be
effected only through the same records. Payments, transfers, exchanges, and
other matters relating to beneficial interests in a global security may be
subject to various policies and procedures adopted by the depositary from time
to time. Neither we, the trustee, nor any of our agents will have responsibility
or liability for any aspect of the depositary's or any Participant's records
relating to, or for payments made on account of, beneficial interests in a
global security, or for maintaining, supervising, or reviewing any records
relating to the beneficial interests.
REGARDING THE TRUSTEE
The Bank of New York is trustee under our Indenture relating to the
subordinated debt securities and our Indenture relating to the senior debt
securities. We maintain normal banking arrangements with The Bank of New York,
which include a $25 million commitment pursuant to a revolving credit agreement,
approximately $12.1 million of which was outstanding at September 30, 2000.
The Bank of New York also serves as:
* investment manager for our nonunion post-retirement medical fund; and
* custodian of international fixed-income assets for our pension plan.
The Bank of New York is the trustee under APS' first mortgage bond
indenture, senior note indenture, and subordinated debt securities indenture.
The Bank of New York is also the trustee for the holders of several issues of
pollution control bonds issued on APS' behalf, and an affiliate of The Bank of
New York is the remarketing agent for a series of APS' pollution control bonds.
APS maintains normal banking arrangements with The Bank of New York, which
include:
17
* a commitment in the aggregate principal amount of approximately $15.8
million by The Bank of New York pursuant to a reimbursement agreement
related to a letter of credit issued on APS' behalf in connection with
an issuance of pollution control bonds, the proceeds of which were
made available to us; and
* a $15.6 million commitment by The Bank of New York pursuant to an APS
revolving credit agreement, none of which was outstanding at September
30, 2000.
PLAN OF DISTRIBUTION
We intend to sell up to $500,000,000 in aggregate principal amount of the
offered securities to or through underwriters or dealers, and may also sell the
offered securities directly to other purchasers or through agents, as described
in the prospectus supplement relating to an issue of debt securities.
We may distribute the offered securities from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to prevailing market
prices, or at negotiated prices.
In connection with the sale of the offered securities, underwriters may
receive compensation from us or from purchasers of offered securities for whom
they act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell offered securities to or through dealers, and the dealers
may receive compensation in the form of discounts, concessions, or commissions
from the underwriters and/or commissions from the purchasers for whom they act
as agents. Underwriters, dealers, and agents, who participate in the
distribution of offered securities, may be considered to be underwriters, and
any discounts or commissions received by them from us and any profit on the
resale of offered securities by them may be considered to be underwriting
discounts and commissions under the Securities Act of 1933. We will identify any
person considered to be an underwriter, and we will describe any compensation
received from us in the prospectus supplement.
We may agree to indemnify underwriters, dealers, and agents who participate
in the distribution of the offered securities against liabilities, including
liabilities under the Securities Act of 1933.
EXPERTS
The financial statements incorporated in this prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 1999
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
18
LEGAL OPINIONS
Snell & Wilmer L.L.P., One Arizona Center, Phoenix, Arizona 85004 will
opine on the validity of the offered securities for us. We currently anticipate
that Sullivan and Cromwell, 1888 Century Park East, Los Angeles, California
90067 will opine on the validity of the offered securities for any underwriters.
Snell & Wilmer L.L.P. may rely as to all matters of New York law upon the
opinion of Sullivan & Cromwell. Sullivan & Cromwell may rely as to all matters
of Arizona law upon the opinion of Snell & Wilmer L.L.P.
19
$500,000,000
================================================================================
PINNACLE WEST CAPITAL CORPORATION
================================================================================
Debt Securities
================================================================================
PNW
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission registration fee................. $ 132,000
---------
Printing, engraving, and postage expenses........................... 50,000 *
---------
Legal fees.......................................................... 200,000 *
---------
Accounting fees..................................................... 30,000 *
---------
Rating Agency fees.................................................. 200,000 *
---------
Trustee's fees and expenses......................................... 20,000 *
---------
Blue Sky fees and expenses.......................................... 30,000 *
---------
Miscellaneous....................................................... 13,000 *
---------
Total...................................................... $ 675,000 *
=========
----------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The law of Arizona permits extensive indemnification of present and former
directors, officers, employees or agents of an Arizona corporation, whether or
not authority for such indemnification is contained in the indemnifying
corporation's articles of incorporation or bylaws. Specific authority for
indemnification of present and former directors and officers, under certain
circumstances, is contained in Article Eleventh of the Company's Articles of
Incorporation. In addition, Section 7.01 of the Company's bylaws provides that
the Company will indemnify present and former directors and officers to the
fullest extent permitted by Arizona law.
Under the Arizona Business Corporation Act (the "ABCA"), in order for a
corporation to indemnify a director or officer, a majority of the corporation's
disinterested directors, independent legal counsel, or the shareholders must
find that the conduct of the individual to be indemnified was in good faith and
that the individual reasonably believed that the conduct was in the
corporation's best interests (in the case of conduct in an "official capacity"
with the corporation) or that the conduct was at least not opposed to the
corporation's best interests (in all other cases). In the case of any criminal
proceeding, the finding must be to the effect that the individual had no
reasonable cause to believe the conduct was unlawful. Indemnification is
permitted with respect to expenses, judgments, fines, and amounts paid in
settlement by such individuals.
Indemnification under the ABCA is permissive, except in the event of a
successful defense, in which case a director or officer must be indemnified
against reasonable expenses, including attorneys' fees, incurred in connection
with the proceeding. In addition, the ABCA requires Arizona corporations to
indemnify any "outside director" (a director who is not an officer, employee, or
holder of five percent or more of any class of the corporation's stock) against
liability unless (i) the corporation's articles of incorporation limit such
indemnification,
II-1
(ii) the outside director is adjudged liable in a proceeding by or in the right
of the corporation or in any other proceeding charging improper personal benefit
to the director, or (iii) a court determines, before payment to the outside
director, that the director failed to meet the standards of conduct described in
the preceding paragraph. A court may also order that an individual be
indemnified if the court finds that the individual is fairly and reasonably
entitled to indemnification in light of all of the relevant circumstances,
whether or not the individual has met the standards of conduct in this and the
preceding paragraph.
In connection with the offering made by the prospectus which is a part of
this registration statement, as it may be amended or supplemented, the
underwriters of the securities, pursuant to the relevant underwriting agreement,
will severally agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed this registration statement, and
each person, if any, who controls the Company within the meaning of the
Securities Act of 1933, as amended (the "Act"), against certain losses, claims,
damages, or liabilities, including liabilities under the Act, that arise out of
or are based upon written information furnished by such underwriters to the
Company for use in this registration statement or in such prospectus.
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 16. EXHIBITS.
Exhibit No. Description
----------- -----------
1.1 Form of Underwriting Agreement for Debt Securities.
4.1 Indenture dated as of December 1, 2000 between the Company and The
Bank of New York, as Trustee, relating to senior Debt Securities.
4.2 Indenture dated as of December 1, 2000 between the Company and The
Bank of New York, as Trustee, relating to subordinated Debt
Securities.
4.3 Form(s) of Supplemental Indenture relating to Debt Securities (to be
filed as Exhibit(s) by means of Form 8-K).
4.4 Specimen(s) of Debt Securities (to be filed as Exhibit(s) by means
of Form 8-K).
5.1 Opinion of Snell & Wilmer L.L.P.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Snell & Wilmer L.L.P. (included in Opinion filed as
Exhibit No. 5.1).
24.1 Power of Attorney (included on signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee under the Indenture
relating to the senior Debt Securities.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee under the Indenture
relating to the subordinated Debt Securities.
II-2
ITEM 17. 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;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided
however, that paragraphs (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the 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
II-3
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the provisions referred to in Item 15 of
this Registration Statement, or otherwise, the Company has been advised that, in
the opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer, or controlling person of the registrant in the successful defense of
any action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(6) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(7) That, for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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.
II-4
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona on the 21st day of
December, 2000.
PINNACLE WEST CAPITAL CORPORATION
By: William J. Post
------------------------------------
(William J. Post, President and
Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby authorizes Chris N. Froggatt, Barbara M. Gomez, and Michael V. Palmeri
and each of them, as attorneys-in-fact, to sign in his or her name and behalf,
individually and in each capacity designated below, and to file any amendments,
including post-effective amendments, to this registration statement, and any
related Rule 462(b) registration statement or amendment thereto.
[Enlarge/Download Table]
Signature Title Date
--------- ----- ----
William J. Post Principal Executive Officer
-------------------------------------- and Director December 21, 2000
(William J. Post,
President and Chief Executive Officer)
Michael V. Palmeri Principal Financial Officer December 21, 2000
--------------------------------------
(Michael V. Palmeri,
Vice President, Finance)
Chris N. Froggatt Principal Accounting Officer December 21, 2000
--------------------------------------
(Chris N. Froggatt,
Vice President and Controller)
Edward N. Basha, Jr. Director December 21, 2000
--------------------------------------
(Edward N. Basha, Jr.)
Michael L. Gallagher Director December 21, 2000
--------------------------------------
(Michael L. Gallagher)
Pamela Grant Director December 21, 2000
--------------------------------------
(Pamela Grant)
II-5
[Download Table]
Roy A. Herberger, Jr. Director December 21, 2000
--------------------------------------
(Roy A. Herberger, Jr.)
Martha O. Hesse Director December 21, 2000
--------------------------------------
(Martha O. Hesse)
William S. Jamieson, Jr. Director December 21, 2000
--------------------------------------
(William S. Jamieson, Jr.)
Humberto S. Lopez Director December 21, 2000
--------------------------------------
(Humberto S. Lopez)
Robert G. Matlock Director December 21, 2000
--------------------------------------
(Robert G. Matlock)
Director
--------------------------------------
(Kathryn L. Munro)
Bruce J. Nordstrom Director December 21, 2000
--------------------------------------
(Bruce J. Nordstrom)
Richard Snell Director December 21, 2000
--------------------------------------
(Richard Snell)
II-6
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
EXHIBITS 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)
================================================================================
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
----------- -----------
1.1 Form of Underwriting Agreement for Debt Securities.
4.1 Indenture dated as of December 1, 2000 between the Company and The
Bank of New York, as Trustee, relating to senior Debt Securities.
4.2 Indenture dated as of December 1, 2000 between the Company and The
Bank of New York, as Trustee, relating to subordinated Debt
Securities.
4.3 Form(s) of Supplemental Indenture relating to Debt Securities (to be
filed as Exhibit(s) by means of Form 8-K).
4.4 Specimen(s) of Debt Securities (to be filed as Exhibit(s) by means of
Form 8-K).
5.1 Opinion of Snell & Wilmer L.L.P.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Snell & Wilmer L.L.P. (included in Opinion filed as Exhibit
No. 5.1).
24.1 Power of Attorney (included on signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee under the Indenture relating
to the senior Debt Securities.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee under the Indenture relating
to the subordinated Debt Securities.
Dates Referenced Herein and Documents Incorporated by Reference
6 Subsequent Filings that Reference this Filing
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