Southwestern Public Service Company
BYLAWS
(As Amended Through May 1, 1997)
ARTICLE I
Shareholders
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders of the
Company for the election of directors and for the transaction of any other
business that may be properly brought before the meeting shall be held at the
place, date, and hour as designated by resolution of the Board of Directors.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders for any
purpose or purposes shall be called by the Secretary upon receipt of a written
request from either the Chairman of the Board or the President, a majority of
the directors, or any person or persons authorized by the New Mexico Business
Corporation Act (the "NMBCA") to request such a meeting. Special meetings of the
shareholders shall be held at the place, date, and hour as designated by either
the Chairman of the Board or the President or by resolution of the Board of
Directors.
SECTION 3. PROCEDURE. At each meeting of the shareholders, the Chairman of
the Board or, in his or her absence, the President shall act as chairman of the
meeting. The chairman of the meeting shall determine the order of business and
all other matters of procedure. The chairman of the meeting may establish rules
to maintain order and to conduct the meeting. The chairman of the meeting shall
act in his or her absolute discretion, and his or her rulings are not subject to
appeal.
ARTICLE II
Directors
SECTION 1. BOARD OF DIRECTORS. The business of the Company shall be managed
by a Board of Directors. The number of directors constituting the Board of
Directors shall be established from time to time by resolution of the Board of
Directors, within the limitations set forth in the Restated Articles of
Incorporation.
No person who has attained the age of sixty-five shall be eligible for
election as a director of the Company unless he or she is already a member of
the Board of Directors. No director who has attained the age of seventy (or
seventy-two in the case of any director who was over sixty-five as of January 1,
1991) shall serve as a director effective with the next annual meeting of the
shareholders. No director who was also an officer of the Company at the time he
or she was last elected as a director shall serve as a director effective with
the next annual meeting of the shareholders after ceasing to be an officer.
SECTION 2. REGULAR MEETINGS. Regular meetings of the Board of Directors may
be held without notice at times and places determined by the Board of Directors.
SECTION 3. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be called by the Secretary upon the receipt of a request from the Chairman
of the Board, the President, or any three directors. Notice of special meetings
shall be given to each director at any time before the special meeting either
personally or by telephone (including by message or recording device) or
telegraph or facsimile not less than two hours before the meeting or by mail not
less than three days before the meeting. Any notice shall be directed to the
address or telephone number of each director as furnished to the Secretary for
that purpose.
SECTION 4. ADJOURNMENT OF MEETINGS. The directors may adjourn from time to
time any regular or special meeting at which a quorum is present, without notice
other than announcement at the meeting. The adjourned meeting may be called to
order at any time without further notice, and any business may be transacted
which might have been transacted at the original meeting.
SECTION 5. COMPENSATION OF DIRECTORS. The Board of Directors may by
resolution provide for payment of fees for attendance at meetings of the Board
of Directors and the reimbursement of expenses of directors in attending
meetings. The Board of Directors may also by resolution provide for the payment
of other fees or compensation to members of the Board of Directors.
SECTION 6. AUTHORITY TO APPOINT COMMITTEES AND DELEGATE AUTHORITY. The
Board of Directors, by resolution adopted by a majority of the full Board of
Directors, may designate from among its members one or more committees, each of
which, except to the extent limited by law, the Restated Articles of
Incorporation, these Bylaws, and the resolution establishing the committee,
shall have and may exercise all the authority of the Board of Directors, and may
also prescribe rules of operation of the committee. Regular meetings of any
committee may be held without notice at times and places determined by the Board
of Directors or the committee. Special meetings of any committee shall be called
by the Secretary upon the receipt of a request from the Chairman of the Board,
the President, the chairman of the committee, or any two members of the
committee. Notice of special meetings shall be given in the same manner as
provided in Section 3 of this Article II.
ARTICLE III
Officers
SECTION 1. NUMBER. The officers of the Company shall be a Chairman of the
Board, a President, one or more Vice Presidents (one or more of whom may be
designated Executive Vice President or Senior Vice President), a Secretary, and
a Treasurer, and may include a Controller. A chief executive officer, a chief
operating officer, a chief financial officer, and a chief accounting officer may
be designated by the Board of Directors from among the officers.
SECTION 2. ELECTION AND TERM OF OFFICE. Each officer shall be elected by
the Board of Directors and shall hold office until the meeting of the Board of
Directors following the next annual meeting of the shareholders and until his or
her successor has been elected and qualified or until his or her earlier
retirement, resignation, or removal. The Chairman of the Board shall be chosen
from among the directors.
SECTION 3. REMOVAL AND VACANCIES. Any officer may be removed at any time
with or without cause by the Board of Directors. A vacancy in any office may be
filled for the unexpired portion of the term in the same manner as provided for
election to the office.
SECTION 4. ASSISTANT OFFICERS. The Company may have assistant officers as
the Board of Directors may elect. Each assistant officer shall hold office at
the pleasure of, and may be removed at any time with or without cause by, the
Board of Directors. Assistant officers may include one or more Assistant Vice
Presidents, Assistant Secretaries, Assistant Treasurers, and Assistant
Controllers.
SECTION 5. DUTIES. Each officer shall have the authority and shall perform
the duties as may be assigned by the Board of Directors, the Chairman of the
Board, or the President, or as shall be conferred or required by law or these
Bylaws, or as shall be incidental to the office.
ARTICLE IV
Indemnification of Directors, Officers, Employees, and Agents
Each person who is a party or is threatened to be made a party, either as
plaintiff, defendant, respondent, or otherwise, to any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (a
"Proceeding"), based upon, arising from, relating to, or by reason of the fact
that such person, or a person of whom such person is the legal representative,
is or was a director or officer of the Company, or is or was serving at the
request of the Company as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation or non-profit corporation,
cooperative, partnership, joint venture, trust, or other incorporated or
unincorporated enterprise, or any employee benefit plan or trust (each, a
"Company Affiliate"), shall be indemnified and held harmless by the Company to
the fullest extent authorized by the NMBCA, as the same exists on the date of
the adoption of this Bylaw [October 27, 1987] or as may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights than the NMBCA
permitted the Company to provide prior to such amendment), against any and all
expenses, liability, and loss (including, without limitation, investigation
expenses and expert witnesses' and attorneys' fees and expenses, judgments,
penalties, fines, and amounts paid or to be paid in settlement) actually
incurred by such person in connection therewith; provided, however, that, except
as provided in the second paragraph of this Article IV with respect to
Proceedings seeking to enforce rights under this Bylaw, the Company shall
indemnify any such person seeking to enforce such rights in connection with a
Proceeding (or part thereof) initiated by such person only if such Proceeding
(or part thereof) was authorized by a two-thirds vote of the Board of Directors.
The right to indemnification conferred in this Article IV shall be a contract
right and shall include the right to be paid by the Company for expenses to be
incurred in defending or prosecuting any such Proceeding in advance of its final
disposition.
If a claim under the first paragraph of this Article IV is not paid in full
by the Company within thirty days after a written claim has been received by the
Company, except in the case of a claim for expenses to be incurred in defending
a Proceeding in advance of its final disposition in which case the applicable
period shall be ten days, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, if successful
in whole or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. The claimant shall be presumed to be entitled to
indemnification under this Article IV upon submission of a written claim (and
any required undertaking and/or affirmations required by the NMBCA as the same
exists on the date of the adoption of this Bylaw [October 27, 1987] or as may
hereafter be amended but, in the case of any such amendment, only to the extent
that such amendment permits the Company to provide broader indemnification
rights than the NMBCA permitted the Company to provide prior to such amendment)
and thereafter the Company shall have the burden of proof to overcome the
presumption that the claimant is not so entitled. Neither the failure of the
Company (including its Board of Directors, independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because such person has met the applicable standard of conduct set forth in the
NMBCA, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its shareholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
The right to indemnification and the payment of expenses incurred in
defending a Proceeding in advance of its final disposition conferred in this
Article IV shall not be exclusive of any other right which any person may be
entitled under any statute, provision of the Restated Articles of Incorporation,
or Bylaw, an agreement, a resolution of shareholders or directors, or otherwise
both as to action in such person's official capacity and as to action in another
capacity while holding such office.
The Company may purchase and maintain insurance or furnish similar
protection, including, but not limited to, providing a trust fund, letter of
credit, or self-insurance, on behalf of any person who is a director, officer,
employee, or agent of the Company or who, while a director, officer, employee,
or agent of the Company, is serving at the request of the Company as a director,
officer, partner, trustee, employee, or agent of a Company Affiliate, against
any liability asserted against and incurred by such director, officer, employee,
or agent in such capacity or arising out of such director's, officer's,
employee's, or agent's status as such, whether or not the Company would have the
power to indemnify such director, officer, employee, or agent against such
liability under the NMBCA.
The Company's indemnity of any person who was or is serving at its request
as a director, officer, partner, trustee, employee, or agent of a Company
Affiliate shall be reduced by any amounts such person may collect as
indemnification from such Company Affiliate.
The Company may, by action of its Board of Directors, authorize one or more
officers to grant rights to indemnification and advancement of expenses to
employees or agents of the Company on such terms and conditions as such officer
or officers deem appropriate under the circumstances.
Anything in this Article IV to the contrary notwithstanding, no elimination
of this Bylaw and no amendment of this Bylaw adversely affecting the right of
any person to indemnification or advancement of expenses hereunder shall be
effective until the sixtieth day following notice to such indemnified person of
such action, and no elimination of or amendment to this Bylaw shall deprive any
such person of such person's rights hereunder arising out of alleged or actual
occurrences, acts, or failures to act which had their origin prior to such
sixtieth day.
In case any provision in this Article IV shall be determined at any time to
be unenforceable in any respect, the other provisions shall not in any way be
affected or impaired thereby, and the affected provision shall be given the
fullest possible enforcement in the circumstances, it being the intention of the
Company to afford indemnification and advancement of expenses to the persons
indemnified hereby to the fullest extent permitted by law.
For purposes of this Article IV, references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan or
trust; and references to "serving at the request of the Company" shall include
any service as a director, officer, employee, or agent of the Company which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan or trust, its participants, or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan or trust shall be deemed to have acted in a manner
"not opposed to the best interests of the Company."
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article IV shall, unless otherwise provided when authorized,
continue as to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person.
Submission of this Bylaw to the shareholders of the Company for
ratification shall constitute notice to the shareholders of the Company and
shall be the only notice which the Company shall be required to give the
shareholders of the Company with respect to any of the matters covered hereby,
including, without limitation, the Company's entering into any agreement or
making other arrangements providing for the indemnification of or the
advancement of expenses to a director, officer, employee, or agent, the actual
advancement of expenses to a director, officer, employee, or agent of the
Company, or the payment of any other liability or indemnification to or on
behalf of a director, officer, employee, or agent.
ARTICLE V
Share Certificates and Transfer of Shares
SECTION 1. SHARE CERTIFICATES. Shares of stock of the Company may, at the
discretion of the Board of Directors, be represented by certificates or may be
uncertificated. Any share certificates of the Company shall be in the form and
contain the provisions determined by the Board of Directors and required by the
NMBCA.
SECTION 2. TRANSFER RULES. The Board of Directors, the Chairman of the
Board, the President, or the Secretary may from time to time promulgate rules or
regulations as it or such officer may deem advisable concerning the issue,
transfer, registration, or replacement of share certificates of the Company.
SECTION 3. REGISTERED SHAREHOLDERS. The Company shall be entitled to treat
the holder of record of any share or shares as the holder in fact of those
shares. The Company shall not be bound to recognize any equitable or other claim
to or interest in any shares on the part of any other person, regardless of
whether the Company has actual or imputed knowledge of a claim of interest,
except as otherwise required by the laws of New Mexico.
ARTICLE VI
Fiscal Year and Seal
SECTION 1. FISCAL YEAR. The fiscal year of the Company shall begin on the
first day of January and end on the last day of December each year.
SECTION 2. SEAL. The seal of the Company shall be circular in form. Around
the margin of the seal shall be placed the words "Southwestern Public Service
Company" and in the center the words "Corporate Seal Incorporated 1921 New
Mexico."
ARTICLE VII
Amendments
These Bylaws may be altered, amended, or repealed by the affirmative vote
of a majority of the Board of Directors at any regular meeting or, if notice of
intention to amend, alter, or repeal the Bylaws is given in the notice of the
meeting, at any special meeting of the Board of Directors. These Bylaws may also
be altered, amended, or repealed by the shareholders by the affirmative vote of
the holders of a majority in interest of the shares issued and outstanding and
entitled to vote.