Exhibit 3(a)
RESTATED
ARTICLES OF INCORPORATION
OF
TUCSON ELECTRIC POWER COMPANY
KNOW ALL MEN BY THESE PRESENTS: That the incorporators, having
associated themselves together for the purpose of forming a corporation under
and by virtue of the laws of the State of Arizona did adopt Articles of
Incorporation, which are restated as follows:
FIRST: The name of the Corporation shall be Tucson Electric Power
Company.
SECOND: The known and principal place of business of the Corporation
within the State of Arizona shall be 220 West Sixth Street, Tucson, Arizona
85702, but the known place of business may be changed and other offices may
be established and maintained in or outside of the State of Arizona at such
places as the Board of Directors may designate.
THIRD: The purposes for which the Corporation is organized shall be the
transaction of any or all lawful business for which corporations may be
incorporated under Chapter 1 of Title 10, Arizona Revised Statutes.
The character of business which the Corporation intends actually to
conduct in the State of Arizona is that of a public service corporation
within the meaning of Section 2 of Article 15 of the Constitution of Arizona.
FOURTH: The total number of shares of Capital Stock of all classes
which the Corporation shall have authority to issue is Two Hundred One
Million (201,000,000) shares, divided into:
One Million (1,000,000) shares of Preferred Stock without par
value; and
Two Hundred Million (200,000,000) shares of Common Stock
without par value.
The Capital Stock of the Corporation shall be paid in at such time and
upon such conditions as the Board of Directors shall from time to time
determine.
Preferred Stock
The Board of Directors of the Corporation shall have the authority to
divide the Preferred Stock into series and determine the designation,
preferences, privileges and voting powers of the shares of each series so
established and the restrictions and qualifications thereof, all to the
extent and in the manner provided by law; provided, however, that prior to
January 1, 1995 such authority shall be exercised only by the unanimous act
of the entire Board of Directors.
Common Stock
Subject to the limitations, if any, specified with respect to the
Preferred Stock, or any series thereof, dividends may be paid on shares of
the Common Stock, out of any funds legally available therefor, when and as
declared by the Board of Directors.
Subject to the limitations, if any, specified with respect to the
Preferred Stock, or any series thereof, in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, the assets of the Corporation available for payment and
distribution to shareholders shall be distributed ratably in accordance with
their holdings to the holders of shares of the Common Stock.
All voting power shall vest exclusively as the holders of shares of the
Common Stock, except as any statute of the State of Arizona shall expressly
provide to the contrary, and except as and to the extent otherwise specified
with respect to the Preferred Stock, or any series thereof, and each holder
of the Common Stock shall, in the election of directors and upon each other
matter coming before any meeting of shareholders, be entitled to one (1) vote
for each share of such stock standing in the name of such holder on the books
of the Corporation.
General Provisions
The Corporation may, subject to such limitations, if any, as may be
specified with respect to the Preferred Stock, or any series thereof, amend
these Articles of Incorporation from time to time, in as many respects as may
be desired and as now or hereafter permitted by law. The rights conferred
upon shareholders in these Articles of Incorporation are granted subject to
the foregoing right to amend.
The Corporation may, subject to such limitations, if any, as may be
specified with respect to the Preferred Stock, or any series thereof,
acquire, hold, own, pledge, transfer or otherwise dispose of any shares of
its Capital Stock theretofore issued and outstanding; provided, however, that
purchases, whether direct or indirect, shall be made only to the extent of
unreserved and unrestricted earned surplus available therefor.
A statutory consolidation or merger of the Corporation shall not be
deemed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of any provision of these Articles of Incorporation.
In consideration of the issue by the Corporation of shares of the
Capital Stock of the Corporation, each and every present and future holder of
shares of the Capital Stock of the Corporation shall be conclusively deemed,
by acquiring or holding such shares, to have expressly consented to all and
singular the terms and provisions of these Articles of Incorporation and to
have agreed that the voting rights of such holder and the restrictions or
qualifications thereof shall be as set forth in, or determined pursuant to,
this Article.
Any action required or permitted by these Articles of Incorporation to
be taken by the Board of Directors of the Corporation may be taken by a duly
authorized committee of the Board of Directors, except as otherwise required
by law.
FIFTH: The consideration for the issuance of shares of Capital Stock of
the Corporation may be paid to the Corporation, in whole or in part, in cash,
in other property, tangible or intangible, or in labor or services actually
performed for the Corporation, as may be determined by the Board of
Directors; provided, however, that the consideration for shares of Capital
Stock of the Corporation having a par value shall not be less than the par
value thereof. Shares of Capital Stock of the Corporation shall be deemed to
be fully paid and non-assessable when payment of the consideration for which
such shares are to be issued has been received by the Corporation. The
private property of shareholders of the Corporation shall be forever exempt
from the debts and obligations of the Corporation.
SIXTH: The period of duration of the Corporation shall be perpetual.
SEVENTH: (A) The affairs of the Corporation shall be conducted by a
Board of Directors consisting of a number of persons, not less than seven (7)
nor more than ten (10), specified by the Board of Directors in the Bylaws of
the Corporation. Directors shall receive reasonable compensation for the
services which they perform. Directors shall be elected annually by the
shareholders at the annual meeting of shareholders and when so elected shall
serve until the next annual meeting of shareholders or until their successors
have been duly elected and qualified.
(B) No director of the Corporation shall be personally liable for
monetary damages for breach of fiduciary duty as a Director; provided,
however, that nothing herein shall be deemed to eliminate or limit any
liability which may not be so eliminated or limited under the laws of the
State of Arizona, as in effect at the effective date of this paragraph (B) of
Article SEVENTH or as thereafter amended. No amendment, modification or
repeal of this paragraph (B) shall eliminate or limit the protection afforded
by this paragraph (B) to a director with respect to any act or omission
occurring before the effective date thereof.
(C) (1) The Corporation shall, to the maximum extent permitted by
applicable law, as from time to time in effect, indemnify any person who
was or is a party to or otherwise involved in (or threatened to be made
a party to or otherwise involved in) any threatened, pending or
completed action, suit or proceeding (hereinafter called an "Action"),
whether civil, criminal, administrative or investigative (including
without limitation any Action by or in the right of the Corporation to
procure a judgment in its favor) by reason of the fact that he is or was
a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another
corporation, of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or any other
entity or enterprise, against expenses, including attorneys' fees, and
against judgments, fines and amounts paid in settlement incurred by him
in connection with such Action or any appeal therein.
(2) The Corporation shall pay any expenses incurred by a director
or officer of the Corporation in defending any such Action in advance of
the final disposition thereof upon receipt of any undertaking by or on
behalf of such person to repay such advances to the extent of the amount
to which such person shall ultimately be determined not to be entitled.
(3) The Corporation, by resolution of the Board of Directors, may
extend the benefits of this paragraph (C) of Article SEVENTH to
employees, agents and other representatives of the Corporation (each
director, officer, employee, agent and other representative entitled to
benefits under this paragraph (C) being hereinafter sometimes called an
"Indemnified Person").
(4) All rights to indemnification and to the advancement of
expenses granted under or pursuant to this paragraph (C) shall be deemed
to arise out of a contract between the Corporation and each person who
is an Indemnified Person at any time while this paragraph (C) is in
effect and may be evidenced by a separate contract between the
Corporation and each Indemnified Person; and such rights shall be
effective in respect of all Actions commenced after the effective date
of this paragraph (C), whether arising from acts or omissions occurring
before or after such date. No amendment, modification or repeal of this
Article shall affect any rights or obligations theretofore existing.
(5) The Corporation may purchase and maintain insurance on
behalf of, or insure or cause to be insured, any person who is an
Indemnified Person against any liability asserted against him and
incurred by him in any capacity in respect of which he is an Indemnified
Person, or arising out of his status in such capacity, whether or not
the Corporation would have the power to indemnify him against such
liability under this Article. As used in this Section, "insurance"
includes retrospectively rated and self-insured programs; provided,
however, that no such program shall provide coverage for directors and
officers which is prohibited by applicable law. The Corporation's
indemnity of any person who is an Indemnified Person shall be reduced by
any amounts such person
may collect with respect to such liability (a) under any policy of
insurance purchased and maintained on his behalf by the Corporation or
(b) from any other entity or enterprise served by such person.
(6) The rights to indemnification and to the advancement of
expenses and all other benefits provided by, or granted pursuant to,
this Article shall continue as to a person who has ceased to serve in
the capacity in respect of which such person was an Indemnified Person
and shall inure to the benefit of the heirs, executors and
administrators of such person.
(7) The Board of Directors shall have the power and authority to
make, alter, amend and repeal such procedural rules and regulations
relating to indemnification and the advancement of expenses as it, in
its discretion, may deem necessary or expedient in order to carry out
the purposes of this Article, such rules and regulations, if any, to be
set forth in the Bylaws of the Corporation or in a resolution of the
Board of Directors.
EIGHTH: The Corporation shall have power to accept any law of any
other state of the United States, within the territorial limits of which the
Corporation may from time to time be desirous of exercising its franchises or
carrying on any part of its business, and to exercise within such other state
all such franchises, powers, privileges, and rights and be subject to such
restrictions as may by the laws of such state be permitted or imposed.
NINTH: The name, residence and post office address of each
incorporator were as follows:
Name Residence Post Office Address
J. R. Snider 2717 Exeter St. 35 West Pennington St.
Tucson, Arizona Tucson, Arizona
J. Luther Davis 1815 North Norton Ave. 35 West Pennington St.
Tucson, Arizona Tucson, Arizona
C. L. Clawson 2640 East Seventh St. 35 West Pennington St.
Tucson, Arizona Tucson, Arizona
TENTH: The directors of the Corporation shall have the power to make,
alter, amend and repeal such bylaws for the management of the business and
affairs of the Corporation as they may deem necessary or expedient, and to
fill vacancies occurring in the Board of Directors from any cause.
IN WITNESS WHEREOF, the undersigned, Tucson Electric Power Company, an
Arizona corporation, has executed the foregoing Restated Articles of
Incorporation of Tucson Electric Power Company by its President, Charles E.
Bayless, and by its Secretary, Dennis R. Nelson, whose signatures are
acknowledged as hereinafter set forth, and said Corporation by said officers
hereby states that the foregoing Restated Articles of Incorporation set forth
all of the operative provisions of the Articles of Incorporation of Tucson
Electric Power Company as heretofore amended and that the Restated Articles
of Incorporation correctly set forth without change the provisions of the
Articles of Incorporation as heretofore amended and that the Restated
Articles of Incorporation supersede the original Articles of Incorporation
and all amendments thereto, and said officers further state that said
Restated Articles of Incorporation were heretofore duly adopted by the Board
of Directors of the Corporation.
TUCSON ELECTRIC POWER COMPANY
By: Charles E. Bayless
------------------
Charles E. Bayless
Its: President
By: Dennis R. Nelson
----------------
Dennis R. Nelson
Its: Secretary
ARTICLES OF AMENDMENT
OF
TUCSON ELECTRIC POWER COMPANY
1. The name of the corporation is Tucson Electric Power Company.
2. Attached hereto as Exhibit A is the text of each amendment adopted.
3. Exhibit A contains provisions for implementing the exchange,
reclassification or cancellation of issued shares provided for therein.
4. The amendment was adopted the 1st day of March, 1996.
5. The amendment was approved by the shareholders. There is one voting group
eligible to vote on the amendment. The designation of voting group
entitled to vote separately on the amendment, the number of votes in such
group, the number of votes represented at the meeting at which the
amendment was adopted and the votes cast for and against the amendment were
as follows:
The voting group consisting of 160,723,702 outstanding shares of Common
Stock is entitled to 160,666,976 votes. There were 137,858,917 votes
present at the meeting. The voting group cast 124,160,826 votes for and
11,277,640 votes against approval of the amendment. The number of votes
cast for approval of the amendment was sufficient for approval by the
voting group.
Dated as of this 17th day of May, 1996.
TUCSON ELECTRIC POWER COMPANY
By Charles E. Bayless
------------------
Charles E. Bayless
President
By Dennis R. Nelson
----------------
Dennis R. Nelson
Secretary
STATE OF ARIZONA )
) ss. Tucson
COUNTY OF PIMA )
The foregoing instrument was acknowledged before me this 17th day of May,
1996, by Charles E. Bayless and Dennis R. Nelson, President and Secretary
of Tucson Electric Power Company, an Arizona corporation, on behalf of the
corporation.
Notary Public
My Commission Expires:
EXHIBIT A
TUCSON ELECTRIC POWER COMPANY
AMENDMENT TO ARTICLE FOURTH OF RESTATED ARTICLES
OF INCORPORATION TO READ AS FOLLOWS
FOURTH: The total number of shares of Capital Stock of all classes which the
Corporation shall have authority to issue is Seventy-Six Million (76,000,000)
shares, divided into:
One Million (1,000,000) shares of Preferred Stock without par value;
and
Seventy-Five Million (75,000,000) shares of Common Stock without
par value.
(1) Each share of the Corporation's Common Stock without par value issued
and outstanding immediately prior to the time of effectiveness of this Amendment
to the Restated Articles of Incorporation of the Corporation (the "Effective
Time") is hereby reclassified and changed into one-fifth (1/5) of one (1) share
of the Corporation's Common Stock without par value (shares of Common Stock
issued and outstanding immediately prior to the Effective Time being hereinafter
called "Old Shares" and shares of Common Stock issued and outstanding at and
after the Effective Time being hereinafter called "New Shares"); provided,
however, that with respect to each holder of Old Shares such reclassification
shall be effected on the basis of the total number of Old Shares held by such
holder and, if such reclassification would result in any holder of Old Shares
becoming the holder of a fractional share interest in a New Share, then the
number of New Shares into which such holder's Old Shares are reclassified shall
be rounded upward to the nearest whole share.
(2) Each holder of certificates representing Old Shares shall be entitled,
upon surrender of such certificates to the Corporation or any transfer or
exchange agent for cancellation, to receive a new certificate or certificates
representing the number of fully paid and nonassessable New Shares into which
such Old Shares have been reclassified and changed. Until so presented and
surrendered, certificates for Old Shares shall, except as provided in the
following sentence, be deemed for all purposes to evidence the ownership of the
number of New Shares into which such Old Shares have been reclassified pursuant
to paragraph 1 hereof. The holder of any certificate for Old Shares shall not
be paid any distributions payable on the Common Stock to which such holder shall
otherwise be entitled until such holder surrenders such certificate in exchange
for a certificate or certificates representing New Shares.