As filed with the Securities and Exchange Commission on December 17, 2002
Registration No. 33-15190
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 3
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 of Incorporation) (I.R.S. Employer
Identification Number)
400 North Fifth Street
Phoenix, Arizona 85004
(602) 250-1000
(Address, including zip code and telephone number,
including area code, of registrant's
principal executive offices)
MATTHEW P. FEENEY
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85004
(602) 382-6239
(Name, address, including zip code and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
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. [ ]
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.
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 17, 2002
Prospectus
PINNACLE WEST CAPITAL CORPORATION
INVESTORS ADVANTAGE PLAN
13,000,000 SHARES OF COMMON STOCK
(No Par Value)
The Pinnacle West Capital Corporation Investors Advantage Plan (the
"Plan"), is designed to provide our existing and potential investors with a
convenient cost-effective 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 to
purchase shares of Common Stock.
PARTICIPANTS IN THE PLAN MAY:
* Reinvest all or a portion of cash dividends paid on Common Stock
registered in their names or on Common Stock credited to their Plan
accounts in shares of Common Stock.
* 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 $150,000 per calendar year, including the initial
investment.
* Receive, upon written request, certificates for whole shares of Common
Stock credited to their Plan accounts.
* Deposit certificates representing Common Stock into the Plan for
safekeeping.
* Sell shares of Common Stock credited to their Plan accounts through
the Plan.
Shares of Common Stock will be purchased under the Plan, at our option,
from newly issued shares, shares held in our treasury, or shares purchased on
the open market. Purchases will be effected through an independent agent
appointed by us. The Common Stock is listed on the New York and Pacific Stock
Exchanges. The closing price of the Common Stock on December 13, 2002 on the New
York Stock Exchange was $31.88.
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. We 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.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 OF THIS PROSPECTUS TO READ ABOUT
CERTAIN FACTORS YOU SHOULD CONSIDER.
This Prospectus contains a summary of the material provisions of the Plan
and, therefore, this Prospectus should be retained by participants in the Plan
for future reference.
Our principal executive offices are located at 400 North Fifth Street,
Phoenix, Arizona 85004. Our telephone number is (602) 250-1000.
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 ____________.
TABLE OF CONTENTS
Page
Risk Factors...................................................................2
About This Prospectus.........................................................10
Forward-Looking Statements....................................................10
Where You Can Find More Information...........................................11
The Company...................................................................11
Description of the Plan.......................................................12
Purpose of the Plan.......................................................14
Advantages and Disadvantages of the Plan..................................14
Plan Administration.......................................................15
Participation in the Plan.................................................15
Participation Options ....................................................16
Initial Cash Investments and Cash Investments.............................17
Reinvestment of Dividends ................................................19
Purchases.................................................................19
Certificates..............................................................20
Safekeeping of Certificates ..............................................20
Sale of Shares............................................................21
Termination of Plan Participation ........................................21
Service Fees..............................................................22
Reports to Participants...................................................22
Other Information ........................................................22
Federal Income Tax Information............................................24
Application of Proceeds ......................................................24
Experts ......................................................................24
Legal Opinions ...............................................................24
Shareholder Information ......................................................25
RISK FACTORS
Before purchasing our Common Stock you should carefully consider the
following risk factors as well as the other information contained in this
Prospectus and the information incorporated by reference, including the
information under the heading "Forward-Looking Statements," in order to evaluate
an investment in our Common Stock. Although we have tried to discuss key factors
in this Prospectus, please be aware that other risks may prove to be important
in the future. New risks may emerge at any time and we cannot predict such risks
or estimate the extent to which they may affect our financial performance.
IF WE ARE NOT ABLE TO ACCESS CAPITAL AT COMPETITIVE RATES, OUR ABILITY TO
IMPLEMENT OUR FINANCIAL STRATEGY WILL BE ADVERSELY AFFECTED.
We rely on access to both short-term money markets and longer-term capital
markets as a significant source of liquidity and for capital requirements not
satisfied by the cash flow from our operations. We believe that we will maintain
sufficient access to these financial markets based upon current credit ratings.
However, certain market disruptions or a downgrade of our credit rating may
increase our cost of borrowing or adversely affect our ability to access one or
more financial markets. Such disruptions could include:
* an economic downturn;
* capital market conditions generally;
* the bankruptcy of an unrelated energy company;
* market prices for electricity and gas;
* terrorist attacks or threatened attacks on our facilities or unrelated
energy companies; or
* the overall health of the utility industry.
Changes in economic conditions could result in higher interest rates, which
would increase our interest expense on our debt and reduce funds available to us
for our current plans. Additionally, an increase in our leverage could adversely
affect us by:
* increasing the cost of future debt financing;
* increasing our vulnerability to adverse economic and industry
conditions;
* requiring us to dedicate a substantial portion of our cash flow from
operations to payments on our debt, which would reduce funds available
to us for operations, future business opportunities or other purposes;
and
* placing us at a competitive disadvantage compared to our competitors
that have less debt.
See the following two Risk Factors for more information relating to this
discussion.
THE CONSTRUCTION COSTS OF THE GENERATION FACILITIES OF PINNACLE WEST ENERGY
CORPORATION ("PINNACLE WEST ENERGY") COULD NEGATIVELY IMPACT OUR RESULTS OF
OPERATIONS.
Pinnacle West Energy, one of our wholly-owned subsidiaries, has completed
or has under construction about 1,790 MW of natural gas-fired generating
capacity at an estimated cost of about $1 billion. In addition, Pinnacle West
Energy has begun construction of the 570 MW Silverhawk plant in Nevada at an
estimated cost of approximately $400 million. On November 22, 2002, Pinnacle
West Energy announced the decision to cancel Redhawk Units 3 and 4, two
530-megawatt natural gas-fired generators that were scheduled to begin producing
electricity by early 2007. As a result of the plant cancellation, we expect to
record a charge of approximately $50 million before income taxes ($30 million
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after-tax or $0.35 per share) in the fourth quarter of 2002. Pinnacle West
Energy's expansion plans will be sized to meet cash flow and market conditions.
Pinnacle West Energy has funded and is currently funding its capital
requirements through capital infusions from us. We finance those infusions
through debt financings and internally generated cash. We financed Pinnacle West
Energy's generation expansion program premised upon Pinnacle West Energy's
receipt of the generation assets of Arizona Public Service Company ("APS"), our
public utility subsidiary, by the end of 2002, as previously required by the
ACC's electric competition rules and the 1999 settlement agreement.
Through early-2004, we will need to refinance or repay approximately $790
million of debt incurred by us to finance Pinnacle West Energy's construction of
generation plants built since 1999 to serve APS customers. In addition, we must
finance the ongoing capital expenditures for the Pinnacle West Energy
construction program. Failure to refinance or repay a portion of this debt at
the subsidiary level could adversely impact our credit ratings.
The ACC's reversal of the generation asset transfer requirement results in
Pinnacle West Energy being unable to obtain investment grade credit ratings.
This, in turn, precludes Pinnacle West Energy from accessing capital markets to
finance its ongoing construction program or to refinance the bridge financing
provided by us to fund the construction of Pinnacle West Energy generation
assets or from effectively competing in the wholesale markets.
On September 16, 2002, APS filed an application with the ACC requesting the
ACC to allow APS to borrow up to $500 million and to lend the proceeds to
Pinnacle West Energy or to us; to guarantee up to $500 million of Pinnacle West
Energy's or our debt, or a combination of both, not to exceed $500 million in
the aggregate. On November 8, 2002, APS filed an interim financing application
with the ACC requesting the ACC to permit APS to (a) make short-term advances to
Pinnacle West in the form of an inter-affiliate line of credit in the amount of
$125 million or (b) guarantee $125 million of Pinnacle West's short-term debt.
On November 22, 2002, the ACC approved APS' request to make the $125 million
interim loan or guarantee, subject to various conditions, including the ACC
examining ways to improve regulatory insulation between APS and its affiliates
in the ACC's consideration of APS' $500 million financing application. On
December 13, 2002, the ACC staff filed its testimony in connection with APS'
$500 million financing application and recommended approval of the financing
application, subject to certain conditions, including that the APS loan to
Pinnacle West Energy be secured by certain Pinnacle West Energy assets and have
a maturity date of not more than four years, unless otherwise ordered by the
ACC. The ACC staff also recommended that APS not be allowed to pay dividends if,
as a result of the payment, APS' common equity ratio would fall below 40%. The
ACC hearing on the financing application is scheduled to begin on January 8,
2003. We are unable to predict what actions, if any, the ACC might propose or
take in connection with these matters.
Our credit ratings could be adversely affected if APS' $500 million
financing application is not approved by the ACC. On November 4, 2002, Standard
and Poor's Corporation lowered our senior unsecured debt rating from "BBB" to
"BBB-." On December 4, 2002, Fitch Ratings placed certain of our debt and that
of APS on Ratings Watch Negative.
In the event that the ACC does not approve the $500 million financing
application, we believe that we would be able to access the capital markets or
take other steps to refinance or repay our outstanding debt and continue to meet
our ongoing capital requirements, although there can be no assurance that we
would be able to do so and a downgrading of our debt ratings may result. See the
preceding and following Risk Factor.
A SIGNIFICANT REDUCTION IN OUR CREDIT RATINGS COULD MATERIALLY AND
ADVERSELY AFFECT OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
We cannot be sure that any of our current ratings will remain in effect for
any given period of time, particularly in light of the action recently taken by
Fitch (see "Summary - Recent Developments - Change in Credit Ratings" above) or
that a rating will not be lowered or withdrawn entirely by a rating agency if,
in its judgment, circumstances in the future so warrant. Any downgrade could
increase our borrowing costs which would diminish our financial results. We
would likely be required to pay a higher interest rate in future financings, and
our potential pool of investors and funding sources could decrease. A downgrade
could require additional support in the form of letters of credit or cash or
other collateral and otherwise have a material adverse effect on our business,
financial condition and results of operations. If our short-term ratings were to
be lowered, it could limit our access to the commercial paper market. We note
3
that the ratings from credit agencies are not recommendations to buy, sell or
hold our securities and that each rating should be evaluated independently of
any other rating. See the preceding two Risk Factors.
DEREGULATION OR RESTRUCTURING OF THE ELECTRIC INDUSTRY MAY RESULT IN
INCREASED COMPETITION, WHICH COULD HAVE A SIGNIFICANT ADVERSE IMPACT ON OUR
BUSINESS AND OUR FINANCIAL RESULTS.
Retail competition could have a significant adverse financial impact on us
due to an impairment of assets, a loss of retail customers, lower profit margins
or increased costs of capital. In 1999, the ACC approved rules that provide a
framework for the introduction of retail electric competition in Arizona. Under
the rules, as modified by a 1999 settlement agreement among APS and various
parties, APS was required to transfer all of its competitive electric assets and
services to an unaffiliated party or parties or to a separate corporate
affiliate or affiliates no later than December 31, 2002. Pursuant to an ACC
order dated September 10, 2002, the ACC unilaterally modified the 1999
settlement agreement and directed APS to cancel any plans to divest interests in
any of its generating assets. The ACC further established a requirement that APS
competitively procure, at a minimum, any power required for its retail customers
that APS cannot produce from its existing generating assets. The ACC ordered the
ACC staff and interested parties to develop a competitive procurement process by
March 1, 2003. These regulatory developments and legal challenges to the rules
have raised considerable uncertainty about the status and pace of retail
electric competition in Arizona. Although some very limited retail competition
existed in APS' service area in 1999 and 2000, there are currently no active
retail competitors offering unbundled energy or other utility services to APS'
customers. As a result, we cannot predict when, and the extent to which,
additional competitors will re-enter APS' service territory. These matters are
discussed in detail in the documents filed by us with the Securities and
Exchange Commission ("SEC"). See "Where You Can Find More Information" below.
As a result of changes in federal law and regulatory policy, competition in
the wholesale electricity market has greatly increased due to a greater
participation by traditional electricity suppliers, non-utility generators,
independent power producers, and wholesale power marketers and brokers. This
increased competition could affect our load forecasts, plans for power supply
and wholesale energy sales and related revenues. As a result of the changing
regulatory environment and the relatively low barriers to entry, we expect
wholesale competition to increase. As competition continues to increase, our
financial position and results of operations could be adversely affected.
THE PROCUREMENT OF WHOLESALE POWER BY APS WITHOUT THE ABILITY TO ADJUST
RETAIL RATES COULD HAVE AN ADVERSE IMPACT ON OUR BUSINESS AND FINANCIAL RESULTS.
A 1999 settlement agreement limits APS' ability to change retail rates
until at least July 1, 2004, which could have a significant adverse financial
impact on us if wholesale power prices significantly exceed the amount included
for generation costs in APS' current bundled retail rates. Under the ACC's
rules, APS is the "provider of last resort" for standard-offer, full-service
customers under rates that have been approved by the ACC. These rates are
established until at least July 1, 2004. The 1999 settlement agreement allows
APS to seek adjustment of these rates in the event of emergency conditions or
circumstances, such as the inability to secure financing on reasonable terms;
material changes in APS' cost of service for ACC-regulated services resulting
from federal, tribal, state or local laws; regulatory requirements; or judicial
decisions, actions or orders. Energy prices in the western wholesale market vary
and, during the course of the last two years, have been volatile. At various
times, prices in the spot wholesale market have significantly exceeded the
amount of generation costs per kilowatt hour (kWh) included in APS' current
retail rates. In the event of shortfalls due to unforeseen increases in load
demand or generation or transmission outages, APS may need to purchase
additional supplemental power in the wholesale spot market. Additionally, the
ACC is developing a process by which APS will competitively solicit bids for
certain wholesale power requirements in 2003 and subsequent years. The ACC's
development of the competitive procurement process will not be completed until
at least early 2003, and the final requirements of the process may adversely
affect the cost of APS' procurement of wholesale power. In sum, there can be no
assurance that APS would be able to fully recover the costs of wholesale power
under its present rate structure. Although APS could seek to adjust its rates
under the emergency provisions of the settlement agreement discussed above, ACC
approval of such an adjustment also cannot be assured.
4
WE ARE SUBJECT TO COMPLEX GOVERNMENT REGULATION WHICH MAY HAVE A NEGATIVE
IMPACT ON OUR BUSINESS AND OUR RESULTS OF OPERATIONS.
We are, directly and through our subsidiaries, subject to governmental
regulation which may have a negative impact on our business and results of
operations. We are a "holding company" within the meaning of the Public Utility
Holding Company Act ("PUHCA"); however, we are exempt from the provisions of
PUHCA by virtue of our filing of an annual exemption statement with the SEC.
APS is subject to comprehensive regulation by several federal, state and
local regulatory agencies, which significantly influence its operating
environment and may affect its ability to recover costs from utility customers.
APS is required to have numerous permits, approvals and certificates from the
agencies that regulate APS' business. The Federal Energy Regulatory Commission
("FERC"), the Nuclear Regulatory Commission ("NRC"), the Environmental
Protection Agency ("EPA"), and the Arizona Corporation Commission ("ACC")
regulate many aspects of our utility operations, including siting and
construction of facilities, customer service and the rates that APS can charge
customers. We believe the necessary permits, approvals and certificates have
been obtained for APS' existing operations. However, we are unable to predict
the impact on our business and operating results from the future regulatory
activities of any of these agencies. Changes in regulations or the imposition of
additional regulations could have an adverse impact on our results of
operations.
RECENT EVENTS IN THE ENERGY MARKETS THAT ARE BEYOND OUR CONTROL MAY HAVE
NEGATIVE IMPACTS ON OUR BUSINESS.
As a result of the energy crisis in California during the summer of 2001,
the recent volatility of natural gas prices in North America, the filing of
bankruptcy by the Enron Corporation, and investigations by governmental
authorities into energy trading activities, companies generally in the regulated
and unregulated utility businesses have been under an increased amount of public
and regulatory scrutiny. The capital markets and ratings agencies also have
increased their level of scrutiny. We believe that we are complying with all
applicable laws, but it is difficult or impossible to predict or control what
effect these or related issues may have on our business or our access to the
capital markets.
OUR RESULTS OF OPERATIONS CAN BE ADVERSELY AFFECTED BY MILDER WEATHER.
Weather conditions directly influence the demand for electricity and affect
the price of energy commodities. Electric power demand is generally a seasonal
business. In Arizona, demand for power peaks during the hot summer months, with
market prices also peaking at that time. As a result, our overall operating
results fluctuate substantially on a seasonal basis. In addition, we have
historically sold less power, and consequently earned less income, when weather
conditions are milder. As a result, unusually mild weather could diminish our
results of operations and harm our financial condition.
THERE ARE INHERENT RISKS IN THE OPERATION OF NUCLEAR FACILITIES, SUCH AS
ENVIRONMENTAL, HEALTH AND FINANCIAL RISKS AND THE RISK OF TERRORIST ATTACK.
Through APS, we have an ownership interest in and operate the Palo Verde
Nuclear Generating Station ("Palo Verde"). Palo Verde is subject to
environmental, health and financial risks such as the ability to dispose of
spent nuclear fuel, the ability to maintain adequate reserves for
decommissioning, potential liabilities arising out of the operation of these
facilities, and the costs of securing the facilities against possible terrorist
attacks. We maintain nuclear decommissioning trust funds and external insurance
5
coverage to minimize our financial exposure to these risks; however, it is
possible that damages could exceed the amount of insurance coverage.
The NRC has broad authority under federal law to impose licensing and
safety-related requirements for the operation of nuclear generation facilities.
In the event of noncompliance, the NRC has the authority to impose fines or shut
down a unit, or both, depending upon its assessment of the severity of the
situation, until compliance is achieved. In addition, although we have no reason
to anticipate a serious nuclear incident at Palo Verde, if an incident did
occur, it could materially and adversely affect our results of operations or
financial condition. A major incident at a nuclear facility anywhere in the
world could cause the NRC to limit or prohibit the operation or licensing of any
domestic nuclear unit.
The operation of Palo Verde requires licenses that need to be periodically
renewed and/or extended. We do not anticipate any problems renewing these
licenses. However, as a result of potential terrorist threats and increased
public scrutiny of utilities, the licensing process could result in increased
licensing or compliance costs that are difficult or impossible to predict.
THE USE OF DERIVATIVE CONTRACTS IN THE NORMAL COURSE OF OUR BUSINESS COULD
RESULT IN FINANCIAL LOSSES THAT NEGATIVELY IMPACT OUR RESULTS OF OPERATIONS.
Our operations include managing market risks related to commodity prices,
changes in interest rates, and investments held by our pension plan and nuclear
decommissioning trust funds. We are exposed to the impact of market fluctuations
in the price and transportation costs of electricity, natural gas, coal, and
emissions allowances and credits. We have established procedures to manage risks
associated with these market fluctuations by utilizing various commodity
derivatives, including exchange-traded futures and options and over-the-counter
forwards, options, and swaps. As part of our overall risk management program, we
enter into derivative transactions to hedge purchases and sales of electricity,
fuels, and emissions allowances and credits. The changes in market value of such
contracts have a high correlation to price changes in the hedged commodity.
We are exposed to losses in the event of nonperformance or nonpayment by
counterparties. We use a risk management process to assess and monitor the
financial exposure of all counterparties. Despite the fact that the majority of
trading counterparties are rated as investment grade by the credit rating
agencies, there is still a possibility that one or more of these companies could
default, resulting in a material adverse impact on our earnings for a given
period.
Changing interest rates will affect interest paid on variable-rate debt and
interest earned by our pension plan and nuclear decommissioning trust funds. Our
policy is to manage interest rates through the use of a combination of
fixed-rate and floating-rate debt. The pension plan and nuclear decommissioning
trust funds also have risks associated with changing market values of equity
investments. Pension and nuclear decommissioning costs are recovered in
regulated electricity prices.
THE UNCERTAIN OUTCOME REGARDING THE CREATION OF REGIONAL TRANSMISSION
ORGANIZATIONS, OR RTOS, MAY MATERIALLY IMPACT OUR OPERATIONS, CASH FLOWS OR
FINANCIAL POSITION.
In a December 1999 order, the FERC set minimum characteristics and
functions that must be met by utilities that participate in RTOs. The
characteristics for an acceptable RTO include independence from market
participants, operational control over a region large enough to support
efficient and nondiscriminatory markets, and exclusive authority to maintain
short-term reliability. On October 16, 2001, APS and other owners of electric
transmission lines in the Southwest filed with the FERC a request for a
declaratory order confirming that their proposal to form WestConnect RTO, LLC
would satisfy the FERC's requirements for the formation of an RTO. On October
10, 2002, the FERC issued an order finding that the WestConnect proposal, if
modified to address specified issues, could meet the FERC's RTO requirements and
provide the basic framework for a standard market design for the southwest. In
its order, the FERC also stated that its approval of various WestConnect
provisions addressed in the order would not be overturned or affected by the
final rule the FERC intends to ultimately adopt in response to its July 31, 2002
6
Notice of Proposed Rulemaking regarding a standard market design for the
electric utility industry. FERC did not address all of the proposed WestConnect
provisions in its order and some could still be affected by a final rule in the
pending rulemaking proceeding. We cannot currently predict what, if any, impact
there may be to the WestConnect proposal or to us if the FERC adopts the
proposed rule. On November 12, 2002, APS and the other owners filed a request
for rehearing and clarification on portions of the October 10 order.
WE ARE SUBJECT TO NUMEROUS ENVIRONMENTAL LAWS AND REGULATIONS WHICH MAY
INCREASE OUR COST OF OPERATIONS, IMPACT OUR BUSINESS PLANS, OR EXPOSE US TO
ENVIRONMENTAL LIABILITIES.
We are subject to numerous environmental regulations affecting many aspects
of our present and future operations, including air emissions, water quality,
wastewater discharges, solid waste, and hazardous waste. These laws and
regulations can result in increased capital, operating, and other costs,
particularly with regard to enforcement efforts focused on power plant emissions
obligations. These laws and regulations generally require us to obtain and
comply with a wide variety of environmental licenses, permits, inspections and
other approvals. Both public officials and private individuals may seek to
enforce applicable environmental laws and regulations. We cannot predict the
outcome (financial or operational) of any related litigation that may arise.
In addition, we may be a responsible party for environmental clean up at
sites identified by a regulatory body. We cannot predict with certainty the
amount and timing of all future expenditures related to environmental matters
because of the difficulty of estimating clean-up costs. There is also
uncertainty in quantifying liabilities under environmental laws that impose
joint and several liability on all potentially responsible parties.
We cannot be sure that existing environmental regulations will not be
revised or that new regulations seeking to protect the environment will not be
adopted or become applicable to us. Revised or additional regulations that
result in increased compliance costs or additional operating restrictions,
particularly if those costs are not fully recoverable from APS' customers, could
have a material adverse effect on our results of operations.
THE MARKET PRICE OF OUR COMMON STOCK MAY BE VOLATILE.
The market price of our common stock could be subject to significant
fluctuations in response to factors such as the following, some of which are
beyond our control:
* variations in our quarterly operating results;
* operating results that vary from the expectations of management,
securities analysts and investors;
* changes in expectations as to our future financial performance,
including financial estimates by securities analysts and investors;
* developments generally affecting industries in which we operate,
particularly the energy distribution and energy generation industries;
* announcements by us or our competitors of significant contracts,
acquisitions, joint marketing relationships, joint ventures or capital
commitments;
* announcements by third parties of significant claims or proceedings
against us;
* favorable or adverse regulatory developments;
* our dividend policy;
7
* future sales of our equity or equity-linked securities; and
* general domestic and international economic conditions.
In addition, the stock market in general has experienced extreme volatility
that has often been unrelated to the operating performance of a particular
company. These broad market fluctuations may adversely affect the market price
of our common stock.
As of December 12, 2002, the sales price of our common stock since January
1, 1998 has ranged from a high of $52.69 on October 3, 2000 to a low of $21.70
on October 8, 2002.
OUR STOCK PRICE COULD BE AFFECTED BECAUSE A SUBSTANTIAL NUMBER OF SHARES OF
OUR COMMON STOCK COULD BE AVAILABLE FOR SALE IN THE FUTURE.
Sales in the public market of a substantial number of shares of common
stock could depress the market price of the common stock and could impair our
ability to raise capital through the sale of additional equity securities.
Because of the number of shares of our common stock that we are authorized to
issue under our articles of incorporation, a substantial number of shares of our
common stock could be available for future sale.
OUR CASH FLOW AND ABILITY TO PAY DIVIDENDS LARGELY DEPENDS ON THE
PERFORMANCE OF OUR SUBSIDIARIES.
We conduct our operations primarily through subsidiaries. Substantially all
of our consolidated assets are held by such subsidiaries. Accordingly, our cash
flow and our ability to pay dividends on our capital stock are largely dependent
upon the earnings of these subsidiaries and the distribution or other payment of
such earnings to us in the form of dividends, loans or advances or repayment of
loans and advances from us. The subsidiaries are separate and distinct legal
entities and have no obligation to pay dividends or to make any funds available
for such payment.
The debt agreements of some of our subsidiaries may restrict their ability
to pay dividends, make distributions or otherwise transfer funds to us. Section
39(III) of APS' mortgage requires APS to meet a financial covenant before paying
common stock dividends. Under this covenant, APS may pay dividends on its common
stock if there is a sufficient amount "available" from retained earnings and the
excess of cumulative book depreciation (since the mortgage's inception) over
mortgage depreciation, which is the cumulative amount of additional property
pledged each year to address collateral depreciation. As of December 31, 2001,
the amount "available" under the mortgage would have allowed APS to pay
approximately $2.8 billion of dividends compared to APS' current annual common
stock dividends of $170 million. See also a potential dividend restriction
proposed by the ACC staff in connection with its testimony in connection with
APS' $500 million financing application as discussed above.
WE HAVE AND MAY ENTER INTO CREDIT AND OTHER AGREEMENTS FROM TIME TO TIME
THAT RESTRICT OUR ABILITY TO PAY DIVIDENDS.
Payment of dividends on the common stock may be restricted by loan
agreements, indentures and other transactions entered into by us from time to
time. As of the date of this prospectus supplement, our bridge facility
restricts our ability to pay dividends to dividends paid on our capital stock in
the ordinary course and consistent with past practice (including increases in
such dividends consistent with past practices). However, if an event of default
exists under that facility, we would be prohibited from paying any dividends
while the event of default continues.
CERTAIN PROVISIONS OF OUR ARTICLES OF INCORPORATION AND BYLAWS AND OF
ARIZONA LAW MAKE IT DIFFICULT FOR SHAREHOLDERS TO CHANGE THE COMPOSITION OF OUR
BOARD AND MAY DISCOURAGE TAKEOVER ATTEMPTS THAT COULD BE BENEFICIAL TO US AND
OUR SHAREHOLDERS.
Certain provisions of our articles of incorporation and bylaws and of
Arizona law make it difficult for shareholders to change the composition of our
board and may discourage unsolicited attempts to acquire us, which could
8
preclude our shareholders from receiving a change of control premium. These
provisions include the following:
* provisions of our bylaws and Arizona law that restrict our ability to
engage in a wide range of "business combination" transactions with an
"interested shareholder" (generally, any person who owns 10% or more
of our outstanding voting power or any of our affiliates or
associates) or any affiliate or associate of an interested
shareholder, unless specific conditions are met;
* anti-greenmail provisions of Arizona law and our bylaws that prohibit
us from purchasing shares of our voting stock from beneficial owners
of more than 5% of our outstanding shares unless specified conditions
are satisfied;
* provisions of our bylaws and Arizona law that provide that shareholder
action may be taken only at an annual or special meeting or by
unanimous written consent, and provisions of our bylaws that provide
that a special meeting of shareholders may only be called by a
majority of our Board of Directors, the Chairman of our Board of
Directors, or our President;
* advance notice procedures for nominating candidates to our Board of
Directors or presenting matters at shareholder meetings;
* provisions of our articles and bylaws that provide for a staggered
Board of Directors;
* provisions of our bylaws that provide that shareholders may only
remove a director with or without cause by a super-majority vote at a
special meeting of shareholders; and
* the ability of our Board of Directors to issue additional shares of
common stock and shares of preferred stock and to determine the price
and, with respect to preferred stock, the other terms, including
preferences and voting rights, of those shares without shareholder
approval.
In addition, we have adopted a shareholder rights plan that may have the
effect of discouraging unsolicited takeover proposals, including takeover
proposals that could result in a premium over the market price of our common
stock.
While these provisions have the effect of encouraging persons seeking to
acquire control of us to negotiate with our Board of Directors, they could
enable the board to hinder or frustrate a transaction that some, or a majority,
of our shareholders might believe to be in their best interests and, in that
case, may prevent or discourage attempts to remove and replace incumbent
directors.
9
ABOUT THIS PROSPECTUS
This Prospectus is part of a 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. 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 is accurate as
of the date on its cover. Our business, financial condition, results of
operations, and prospects may have changed since that date.
FORWARD-LOOKING STATEMENTS
This Prospectus, and the additional information described under the heading
"Where You Can Find More Information" may contain forward-looking statements
within the meaning 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, including those described under "Risk Factors" above, 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, including the
introduction of retail electric competition in Arizona and decisions
impacting wholesale competition;
* the outcome of regulatory and legislative proceedings relating to the
restructuring;
* state and federal regulatory and legislative decisions and actions,
including price caps and other market constraints imposed by the FERC;
* regional economic and market conditions, including the California
energy situation and completion of generation construction in the
region, which could affect customer growth and the cost of power
supplies;
* the cost of debt and equity capital and access to the capital markets;
* weather variations affecting local and regional customer energy usage;
* the effect of conservation programs on energy usage;
* power plant performance;
* the successful completion of our generation expansion program;
* regulatory issues associated with generation expansion, such as
permitting and licensing;
* our ability to compete successfully outside traditional regulated
markets (including the wholesale market);
* our ability to manage our marketing and trading activities and the use
of derivative contracts in our business;
* technological developments in the electric industry;
* the performance of the stock market, which affects the amount of our
required contributions to our pension plan and nuclear decommissioning
trust funds;
* the strength of the real estate market in SunCor Development Company's
market areas, which include Arizona, New Mexico and Utah; 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.
10
WHERE YOU CAN FIND MORE INFORMATION
AVAILABLE INFORMATION
We file annual, quarterly, and current 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 at 450 Fifth Street NW, Washington,
D.C. 20036. You may call the SEC at 1-800-SEC-0330 for further information on
the public reference rooms. The Common Stock is listed on the New York and
Pacific Stock Exchanges. 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 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 and Exchange Act of 1934
until all securities are sold under this Prospectus.
1. Annual Report on Form 10-K for the year ended December 31, 2001
(except for Items 6, 7 and 8 which have been revised in the Current Report
on Form 8-K dated November 21, 2002);
2. Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31, 2002, June 30, 2002 and September 30, 2002;
3. Current Reports on Form 8-K dated December 14, 2001 and February 8,
March 31, April 26, May 22, June 5, June 11, June 30, July 11, July 23,
August 13, August 27, September 10, September 30, October 17, November 14,
November 15, November 21 and November 22, 2002;
4. Description of (a) the Company's Common Stock included in our
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 (b) the Company's Preferred Share
Purchase Rights included in our Registration Statement on Form 8-A, File
No. 1-8962, as filed on March 31, 1989, a Form 8 Amendment No. 1 thereto as
filed on August 29, 1991, and a Form 8 Amendment No. 2 thereto as filed on
June 28, 2002.
You may request a copy of these filings and will receive a copy of these
filings, at no cost, by writing, telephoning, or contacting us through our
website at the following:
Pinnacle West Capital Corporation
P. O. Box 52133
Phoenix, Arizona 85072-2133
(602) 250-1000 or (800) 457-2983 toll-free nationwide
or online at www.pinnaclewest.com
THE COMPANY
The Company owns all of the outstanding common stock of Arizona Public
Service Company ("APS"). APS is an electric utility that provides either retail
or wholesale electric service to substantially all of the state of Arizona, with
the major exceptions of the Tucson metropolitan area and about one-half of the
Phoenix metropolitan area. Electricity is provided through a distribution system
owned by APS. APS also generates and, through our marketing and trading
division, sells and delivers electricity to wholesale customers in the western
United States.
11
Our other major subsidiaries are:
* Pinnacle West Energy Corporation, through which we conduct our
unregulated electricity generation operations;
* APS Energy Services, Inc., which provides commodity-related energy
services (such as direct access commodity contracts, energy
procurement, and energy supply consultation) and energy-related
products and services (such as energy master planning, energy use
consultation and facility audits, cogeneration analysis and
installation, and project management) to commercial, industrial and
institutional retail customers in the western United States;
* SunCor Development Company, a developer of residential, commercial,
and industrial real estate projects in Arizona, New Mexico, and Utah;
and
* El Dorado Development Company, an investment firm.
Our marketing and trading division currently sells, into the wholesale
market, the APS and Pinnacle West Energy generation output that is not needed
for APS' native load, which includes loads for retail customers and traditional
cost-of-service wholesale customers. However, the Arizona Corporation Commission
has ordered the ACC staff and interested parties to develop a competitive
procurement process by March 1, 2003 by which APS will competitively procure, at
a minimum, any power needed for its retail customers that it cannot produce from
its existing generation assets. For purposes of this competitive procurement
process, Pinnacle West Energy generation assets are not counted as APS
generation assets. The ACC staff report proposing a competitive procurement
process provides that Pinnacle West Energy would be able to bid in connection
with any such competitive procurement by APS.
DESCRIPTION OF THE PLAN
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:
DEFINITIONS
Administrator - Pinnacle West Capital Corporation (the "Company"
or "Pinnacle West"). See also "Plan
Administrator."
Automatic Investment Form - Documentation that the Administrator shall require
to be completed and received if participant elects
to make an initial cash investment, or authorize
automatic monthly investments, to be deducted
directly from a U.S. checking, savings, or credit
union account which is a member of the Automated
Clearing House ("ACH") network.
Cash Investment - A payment made subsequent to enrollment in the
Plan. The maximum aggregate Cash Investment
(including the Initial Cash Investment) is
$150,000 per account per calendar year.
Cash Investment Form - Documentation prepared by the Administrator that
may be utilized by a participant when making an
optional cash investment.
Company - Pinnacle West Capital Corporation.
Direct Deposit Form - Documentation that the Administrator shall require
to be completed and received if participant elects
to have dividends deposited directly to a
financial institution which is a member of the ACH
network.
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.
12
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.
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.
An Investment Period will occur approximately
every 5 business days. Except that an Investment
Period which would normally begin on a Dividend
Record Date will be postponed until the second
business day after the 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.
13
PURPOSE OF THE PLAN
1. WHAT IS THE PURPOSE OF THE PLAN?
The purpose of the Plan is to promote long-term stock ownership among existing
shareholders and new investors by providing a convenient and cost effective
method 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 $150,000 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 $150,000 per account.
B. CERTIFICATE SAFEKEEPING - Participants may deposit their Common Stock
certificates with the Administrator, 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 31.
C. REINVESTMENT OF DIVIDENDS - All or a portion of Common Stock dividends
may be reinvested to purchase additional shares of Common Stock. See
Questions 7 through 11.
D. 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 34 and 37.
E. 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 27 and
33.
F. 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 30 and 43.
G. 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 28.
H. SELL STOCK - Participants may sell shares held in their Plan account
through the Plan. See Questions 32 and 33.
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 19.
14
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 25 through 29.
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 at
least 2 business days prior to the first day of the Investment Period. See
Question 19.
D. PERIODIC DELAYS FOR ISSUING CERTIFICATES OR SELLING SHARES - Requests
for termination of account by 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 30, 33, and 34.
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 27 and 33.
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 24, 27, and 32.
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 31. Such shares will
be registered in the name of, and held by, the Company as Plan Administrator.
Written communications about the Plan should be directed to:
Pinnacle West Capital Corporation
Shareholder Department
P.O. Box 52133
Phoenix, AZ 85072-2133
E-mail communications should be directed to: shareholderdept@pinnaclewest.com.
When writing, please include a day-time telephone number or e-mail address to
expedite our reply.
The nationwide toll-free Shareholder Department telephone number is
800-457-2983.
PARTICIPATION IN THE PLAN
4. WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?
Any interested investor 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
15
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 reviewing the Plan Prospectus, Eligible Investors may join the Plan by
completing and submitting an Enrollment Form to the Company. New investors must
also submit an Initial Cash Investment of at least $50 (but not more than
$150,000).
Once enrolled in the Plan, Eligible Investors will remain enrolled until they
discontinue their participation or the Plan is terminated. See Question 34, 35,
and 41.
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
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. 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 $150,000 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 may 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 $150,000 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.
16
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 $150,000 per account annually. The Cash Investment will
purchase additional shares of Common Stock. Dividends earned on all Common
Stock, both in the Plan account and of record, will be paid directly to the
investor either by check or direct deposit at the election of the shareholder.
Dividends paid by check will be mailed to the shareholder's address of record.
Shareholders electing to have dividends deposited to a financial institution
account must complete and submit a "Direct Deposit Authorization" form and
deposit slip to the Administrator. The financial institution must be a member of
the Automated Clearing House ("ACH").
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 PARTICIPANTS CHANGE THEIR PARTICIPATION OPTION?
Yes. The participation option may be changed by completing and submitting a new
Enrollment Form to the Company. The change will be effective as of the next
Dividend Record Date following receipt of the new Enrollment Form.
12. 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 purpose of the
Plan (see Question 1) or in violation of applicable law.
INITIAL CASH INVESTMENTS AND CASH INVESTMENTS
13. WHO IS ELIGIBLE TO MAKE CASH INVESTMENTS?
Any Shareholder of Record who has submitted an Enrollment Form is eligible to
make Cash Investments regardless of the participation option chosen, subject to
the maximum contribution. See Question 16.
14. WHO IS ELIGIBLE TO MAKE AN INITIAL CASH INVESTMENT?
Any interested investor may submit an Enrollment Form and make an Initial Cash
Investment, subject to the minimum and maximum contributions. See Question 16.
15. HOW ARE INITIAL CASH INVESTMENTS AND CASH INVESTMENTS MADE?
Initial Cash Investments and Cash Investments may be made by check, money order
or electronic funds transfer (as described below), payable through a U.S. bank
or other financial institution, in U.S. dollars, to Pinnacle West Capital
Corporation. CASH AND THIRD-PARTY CHECKS WILL NOT BE ACCEPTED. 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.
Initial Cash Investments made by electronic funds transfer require that the
participant authorize the Administrator to deduct a specified amount from a U.S.
checking, savings, or credit union account which is a member of the ACH network.
The participant must complete and forward an Automatic Investment Form to the
Administrator to authorize such investment. Regardless of when the Automatic
Investment Form is forwarded to the Administrator, Initial Cash Investment
amounts will only be deducted from the participant's account once a month, on or
around the 10th day of the month. Generally, the funds will be invested during
the first Investment Period following the 10th day of the month. See Question
17.
17
Automatic Cash Investments made by electric funds transfer may be made monthly
by completing and forwarding an Automatic Investment Form to the Administrator,
authorizing the deduction of a set amount from a U.S. checking, savings, or
credit union account which is a member of the ACH network. Regardless of when
the Automatic Investment Form is forwarded to the Administrator, Automatic Cash
Investment amounts will only be deducted from the participant's account once a
month, on or around the 10th day of the month. Generally, the funds will be
invested during the first investment period following the 10th day of each
month. See Question 17.
16. 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 $150,000 per account per calendar year.
17. WHEN WILL A PARTICIPANT'S INITIAL CASH INVESTMENT OR CASH INVESTMENT BE
INVESTED?
Initial Cash Investments and Cash Investments made by check or money order will
be invested during the next scheduled Investment Period except when the first
day of the investment period occurs on a Dividend Record Date. In Dividend
Record Date months (February, May, August, and November), if the first regularly
scheduled Investment Period would normally begin on the Dividend Record Date,
the Investment Period will be delayed until the second business day. Funds are
considered to be received when delivered, either by postal service, by
electronic delivery or in person, during Company business hours to the Company's
corporate headquarters (see "Shareholder Information" below for address).
Deduction of funds related to Initial Cash Investments and Cash Investments by
electronic funds deduction will only occur once a month, on or about the 10th
day of the month, and such funds will be invested in shares of Common Stock
during the next succeeding Investment Period. In the future the Company may
implement more frequent electronic funds deduction dates.
If the Plan Administrator does not receive credit for a cash payment because of
insufficient funds or incorrect ACH draft information, the requested purchase
will be deemed void. Any shares credited will be immediately removed from the
participant's account. The Plan Administrator will be entitled to sell those
shares to satisfy any uncollected amounts and 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. In addition, an
"insufficient funds" fee of $20 will be charged. The Administrator may place a
hold on the account until this fee is paid, or may sell shares from the account
to pay this fee.
18. 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.
19. MAY A PARTICIPANT REQUEST THAT AN INITIAL CASH INVESTMENT OR CASH
INVESTMENT BE RETURNED?
Yes. A participant may request the return of an Initial Cash Investment or Cash
Investment. The funds will be returned if the request is received at least 2
business days prior to the next scheduled Investment Period. However, no refund
of a check or money order will be made until the Administrator has collected the
funds from those instruments.
NOTE: INTEREST IS NOT PAID ON FUNDS HELD PENDING INVESTMENT.
18
REINVESTMENT OF DIVIDENDS
20. 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.
21. WHEN WILL A PARTICIPANT'S DIVIDENDS BE REINVESTED?
A participant's dividends will be reinvested during the first Investment Period
of the month in which the dividend is payable.
22. 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
23. 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.
24. 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.
25. 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 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 26.
26. 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.
27. 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.
19
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.
28. 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 received for the Investment Period 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.
29. 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 request the purchase of a
specific number of shares.
CERTIFICATES
30. 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 5
days following the receipt of the request. However, requests received during the
dividend processing period will be delayed. See Question 2, "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 43.
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 or her shares.
SAFEKEEPING OF CERTIFICATES
31. 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.
20
NOTE: COMMON STOCK SURRENDERED FOR SAFEKEEPING WILL BE TREATED AS SHARES
PURCHASED THROUGH THE PLAN.
SALE OF SHARES
32. HOW MAY PARTICIPANTS SELL THEIR PLAN SHARES?
Participants may sell their Plan shares by submitting a written request to the
Plan Administrator. The request should indicate the number of shares to be sold
and must be signed by ALL account owners. The Administrator may also allow
certain instructions to be communicated by telephone or e-mail as agreed to by
the Administrator and the participant. 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 or her shares.
33. WHEN WILL PLAN SHARES BE SOLD?
Plan shares will generally be sold within 5 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
Question 2, "Disadvantages of the Plan - D."
A check will be issued for the proceeds of the sale minus a $5.00 service fee,
the broker commissions and related service charges, and applicable taxes, and
will be made payable to the registered account owners only.
TERMINATION OF PLAN PARTICIPATION
34. 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, by requesting a certificate issued for a specific
number of whole shares in their Plan account and selling the balance of shares,
or by requesting transfer of a specific number of whole shares to a book-entry
(DRS) account and selling the balance of shares. See Questions 30, 32, and 33.
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, sell their
shares, or maintain a book-entry (DRS) account.
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 19.
The termination of Plan participation will be delayed if the request is received
during the dividend processing period. See Question 2, "Disadvantages of the
Plan - D."
21
35. 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
less applicable fees and taxes.
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 purpose of
the Plan (see Question 1) 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.
SERVICE FEES
36. WHAT FEES ARE ASSOCIATED WITH PARTICIPATION IN THE PLAN?
The fees associated with participation in the Plan are:
Investment fee Broker commissions and applicable taxes
Sales fee $5.00 plus broker commission and applicable taxes
All other administrative costs are borne by the Company.
REPORTS TO PARTICIPANTS
37. WHAT REPORTS ARE SENT TO PARTICIPANTS?
Plan participants will receive an Investment Statement when 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 45 for further information regarding tax reporting.
OTHER INFORMATION
38. 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.
39. 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
22
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.
40. 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.
41. 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.
42. 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.
43. 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
E-mail communications should be directed to: shareholderdept@pinnaclewest.com.
When writing, please include a day-time telephone number or e-mail address to
expedite our reply.
The nationwide toll-free Shareholder Department telephone number is
800-457-2983.
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 or her shares.
44. HOW MAY INSTRUCTIONS BE GIVEN TO THE ADMINISTRATOR?
Any instructions may be submitted in writing to the Administrator at the address
noted in the response to Question 43. The Administrator may also allow certain
instructions to be communicated by telephone or e-mail as agreed to by the
Administrator and the participant. You may contact us at 800-457-2983 or by
e-mail at shareholderdept@pinnaclewest.com for more information.
23
FEDERAL INCOME TAX INFORMATION
45. 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 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 of the shares sold, including any fractional shares.
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; El Dorado Investment Company; Pinnacle West Energy Corporation;
and APS Energy Services Company, Inc.) and for general corporate purposes.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from the Company's Current Report
on Form 8-K dated November 21, 2002 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report (which report expresses an
unqualified opinion and includes an explanatory paragraph relating to the change
in 2001 in the method of accounting for derivatives hedging activities in order
to comply with the provisions of Statement of Financial Accounting Standards No.
133), 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.
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.
24
SHAREHOLDER INFORMATION
Pinnacle West Capital Corporation
Corporate Headquarters: 400 North 5th Street
Phoenix, AZ 85004
Mailing Address: P.O. Box 52133
Phoenix, AZ 85072-2133
Telephone Numbers: 602-250-1000 In Phoenix
800-457-2983 Nationwide Toll-free
E-Mail Address shareholderdept@pinnaclewest.com
Web Site www.pinnaclewest.com
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
http://www.pinnaclewest.com
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
25
==================================== ====================================
No person has been authorized to [LOGO]
give any information or to make any PINNACLE WEST CAPITAL CORPORATION
representation not contained in this
Prospectus and, if given or made, INVESTORS ADVANTAGE PLAN
such information or representation
must not be relied upon as having
been authorized by the Company. This 13,000,000 Shares of
Prospectus does not constitute an Common Stock
offer to sell, or a solicitation of (No Par Value)
any offer to buy, any of the
securities offered hereby in any
jurisdiction to any person to whom PROSPECTUS
it is unlawful to make such offer in
such jurisdiction.
==================================== ====================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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. Section 7.01 of the Company's
bylaws provides that the Company shall 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 of an "official capacity"
with the corporation) or that the conduct was at least not opposed to the
corporation's best interests (in all other cases). In the case of any criminal
proceeding, the finding must be to the effect that the individual had no
reasonable cause to believe the conduct was unlawful. Indemnification is
permitted with respect to expenses, judgments, fines, and amounts paid in
settlement by such individuals.
Indemnification under the ABCA is permissive, except in the event of a
successful defense, in which case a director or officer must be indemnified
against reasonable expenses, including attorneys' fees, incurred in connection
with the proceeding. In addition, the ABCA requires Arizona corporations to
indemnify any "outside director" (a director who is not an officer, employee, or
holder of five percent or more of any class of the corporation's stock) against
liability unless (i) the corporation's articles of incorporation limit such
indemnification, (ii) the outside director is adjudged liable in a proceeding
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.
Insurance is maintained on a regular basis (and not specifically in
connection with this Prospectus) 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.
II-1
ITEM 16. LIST OF EXHIBITS.
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Bylaws, amended as of September 18, 2002
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 Amended and Restated Pinnacle West Capital Corporation
Investors Advantage Plan
5.1 Opinion of Snell & Wilmer L.L.P.
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Snell & Wilmer L.L.P.
(included in Exhibit 5.1)
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 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 only if
the registration statement is on Form S-3 or Form S-8 and if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
II-2
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 Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question 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) 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) 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-3
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 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 the 17 day of
December, 2002.
PINNACLE WEST CAPITAL CORPORATION
By: /s/ William J. Post
------------------------------------
William J. Post
Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ William J. Post Principal Executive Officer December 17, 2002
------------------------------- and Director
(William J. Post, Chairman of
the Board of Directors and
Chief Executive Officer)
/s/ Jack E. Davis President, Principal December 17, 2002
------------------------------- Accounting Officer and
(Jack E. Davis, President) Director
/s/ Donald E. Brandt Principal Financial Officer December 17, 2002
-------------------------------
(Donald E. Brandt, Chief
Financial Officer)
/s/ Edward N. Basha, Jr. Director December 17, 2002
-------------------------------
(Edward N. Basha, Jr.)
/s/ Michael L. Gallagher Director December 17, 2002
-------------------------------
(Michael L. Gallagher)
/s/ Pamela Grant Director December 17, 2002
-------------------------------
(Pamela Grant)
/s/ Roy A. Herberger, Jr. Director December 17, 2002
-------------------------------
(Roy A. Herberger, Jr.)
/s/ Martha O. Hesse Director December 17, 2002
-------------------------------
(Martha O. Hesse)
II-4
/s/ William S. Jamieson, Jr. Director December 17, 2002
-------------------------------
(William S. Jamieson, Jr.)
------------------------------- Director
(Humberto S. Lopez)
/s/ Robert G. Matlock Director December 17, 2002
-------------------------------
(Robert G. Matlock)
/s/ Kathryn L. Munro Director December 17, 2002
-------------------------------
(Kathryn L. Munro)
/s/ Bruce J. Nordstrom Director December 17, 2002
-------------------------------
(Bruce J. Nordstrom)
/s/ William L. Stewart Director December 17, 2002
-------------------------------
(William L. Stewart)
II-5
Registration No. 33-15190
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
EXHIBITS TO
POST-EFFECTIVE AMENDMENT NO. 3
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
----------- -----------
4.1 Bylaws, amended as of September 18, 2002
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 Amended and Restated Pinnacle West Capital Corporation
Investors Advantage Plan
5.1 Opinion of Snell & Wilmer L.L.P.
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Snell & Wilmer L.L.P.
(included in Exhibit 5.1)