Exhibit 3.1
BYLAWS
OF
ARIZONA PUBLIC SERVICE COMPANY
(Amended as of February 20, 1996)
1.01. References. Any reference herein made to law will be deemed to
refer to the law of the State of Arizona, including the applicable provision or
provisions of Chapters 1-17 of Title 10, Arizona Revised Statues (or its
successor), as at any given time in effect. Any reference herein made to the
Articles will be deemed to refer to the applicable provision or provisions of
the Articles of Incorporation of the Company, and all amendments thereto, as at
any given time on file with the Arizona Corporation Commission (this reference
to that Commission being intended to include any successor to the incorporating
and related functions being performed by that Commission at the date of the
initial adoption of these Bylaws). Parenthetical references to section or
article numbers in the case of the law are to the indicated sections of Title
10, Arizona Revised Statues, and in the case of the Articles are to the
indicated sections and articles thereof, as both the law and the Articles are in
effect at the date of the initial adoption of these Bylaws; such references are
for purposes of convenience only and are not to be considered as part of, or
used in construing, these Bylaws.
1.02. Seniority. Except as indicated in Part X of these Bylaws, the law
and the Articles (in that order of precedence) will in all respects be
considered senior and superior to these Bylaws, with any inconsistency to be
resolved in favor of the law and the Articles (in that order of precedences),
and with these Bylaws to be deemed automatically amended from time to time to
eliminate any such inconsistency which may then exist.
1.03. Shareholders of Record. Except as otherwise required by law and
subject to any procedure established by the Company pursuant to Arizona Revised
Statutes Section 10-723 (or any comparable successor provision), the word
"shareholder" as used herein shall mean one who is a holder record of shares of
the Company.
II. SHAREHOLDERS MEETINGS
2.01. Annual Meetings. An annual meeting of the shareholders will be
held within nine months after the end of the Company's fiscal year, at a time of
day and place as determined by the Board of Directors (or, in the absence of
action by the Board, as setforth in the notice given, or waiver signed, with
respect to such meetings as contemplated in Section 2.03 below). If any annual
meeting is for any reason not held within the period determined as aforesaid, a
special meeting may thereafter be called and held in lieu thereof pursuant to
the provisions of Section 2.02 below, and the same proceedings (including the
election of directors) may be conducted thereat as at a regular meeting. Any
director elected at any annual meeting, or special meeting in lieu of an annual
meeting, will continue in office until the election of his or her successor,
subject to his or her earlier resignation pursuant to Section 6.01 below or his
or her removal pursuant to Section 3.13 below.
2.02. Special Meetings.
(a) Special meetings of the shareholders may be held whenever and
wherever called for by the Chairman of the Board, the President, a majority of
the Board of Directors, or upon the delivery of proper written request of the
holders of not less than forty percent (40%) of all shares outstanding and
entitled to vote at any such meeting.
(b) For purposes of this Section, proper written request for the
call of a special meeting shall be made by a written request (i) specifying the
purposes for any special meeting requested and providing the information
required by Section 2.05 hereof, (ii) delivered either in person or by
registered or certified mail, return receipt requested, (iii) to the Chairman of
the Board, the President, or such other person as may be specifically authorized
by law to receive such request. Within thirty (30) days after receipt of proper
written request, a special meeting shall be called and notice given in the
manner required by these Bylaws, and the meeting shall be held at a time and
place selected by the Board of Directors, but not later than ninety (90) days
after receipt of such proper written request. The shareholder(s) requesting a
special meeting of shareholders must pay to the Company the Company's reasonably
estimated cost of preparing and mailing a notice of a meeting of shareholders
before such notice is prepared and mailed.
2.03. Notice. Notice of any meeting of the shareholders will be given as
provided by law to each shareholder of record entitled to vote at such meeting
and, if required by law, to each other shareholder of the Company. Any such
notice may be waived as provided by law .
2.04. Right to Vote. For each meeting of the shareholders, the Board of
Directors will fix in advance a record date as contemplated by law, and the
shares of stock and the shareholders "entitled to vote" (as that or any similar
term is herein used) at any meeting of the shareholders will be determined as of
the applicable record date. The Secretary (or in his or her absence an Assistant
Secretary) will see to the making and production of any record of shareholders
entitled to vote or otherwise entitled to notice of shareholders' meetings, in
either case which is required by law. Any voting entitlement may be exercised
through proxy, or in such other manner as specifically provided by law, in
accordance with the applicable law. In the event of contest, the burden of
proving the validity of any undated or irrevocable proxy will rest with the
person seeking to exercise the same. A telegram or cablegram appearing to have
been transmitted by a shareholder (or by his duly authorized attorney-in-fact)
may be accepted as a sufficiently written and executed proxy.
2.05. Manner of Bringing Business Before Meetings.
(a) At any annual or special meeting of shareholders only such
business shall be conducted as shall have been properly brought before the
meeting. In order to be properly brought before the meeting, such business must
be a proper subject for shareholder action under applicable law and must have
been (i) specified in the written notice of the meeting (or any supplement
thereto) given to shareholders who were shareholders on the record date for such
meeting by or at the direction of the Board of Directors or otherwise in
accordance with law or these Bylaws, (ii) brought before the meeting at the
direction of the Board of Directors or the Chairman of the meeting, selected as
provided in Section 2.09 hereof, or (iii) specified in a written notice given by
or on behalf of a shareholder on the record date for such meeting entitled to
vote thereat or a duly authorized proxy for such shareholder, in accordance with
Section 2.05(b) and (c) hereof.
(b) A shareholder notice referred to in Section 2.05(a)(iii)
hereof must be delivered personally to, or mailed to and received at, the
principal executive office of the Company, addressed to the attention of the
Secretary, not more than ten (10) days after the date of the initial notice
referred to in Section 2.05(a)(i) hereof, in the case of business to be brought
before a special meeting of shareholders, and not less than thirty (30) days
prior to the anniversary date of the initial notice referred to in Section
2.05(a)(i) hereof with respect to the previous year's annual meeting, in the
case of business to be brought before an annual meeting of shareholders.
(c) A shareholder notice referred to in Section 2.05(a)(iii)
hereof shall set forth:
(i) a full description of each item of business proposed
to be brought before the meeting and the reasons for conducting
such business at such meeting;
(ii) the name and address of the person proposing to
bring such business before the meeting;
(iii) the class and number of shares held of record, held
beneficially, and represented by proxy by such person as of the
record date for the for the meeting, if such date has been made
publicly available, or as of a date not more than thirty (30)
days prior to the delivery of the initial notice referred to in
Section 2.05(a)(i) hereof, if the record date has not been made
publicly available;
(iv) if any item of business involves a nomination for
director, all information regarding each such nominee that would
be required to be set forth in a definitive proxy statement filed
with the Securities and Exchange Commission pursuant to Section
14 of the Securities Exchange Act of 1934, as amended, or any
successor thereto, and the written consent of each such nominee
to serve if elected;
(v) any material interest of such shareholder in the
specified business;
(vi) whether or not such shareholder is a member of any
partnership, limited partnership, syndicate, or other group
pursuant to any agreement, arrangement, relationship,
understanding, or otherwise, whether or not in writing, organized
in whole or in part for the purpose of acquiring, owning, or
voting shares of the Company; and
(vii) all other information that would be required to be
filed with the Securities and Exchange Commission, if, with
respect to the business proposed to be brought before the
meeting, the person proposing such business was a participant in
a solicitation subject to Section 14 of the Securities Exchange
Act of 1934, as amended, or any successor thereto.
No business shall be brought before any meeting of the shareholders of the
Company otherwise than as provided in this Section 2.05.
(d) Notwithstanding the provisions of this Section 2.05, the
Board of Directors shall not be obligated to include information as to any
shareholder nominee for director or any other shareholder proposal in any proxy
statements or other communication sent to shareholders.
(e) The Chairman of the meeting may, if the facts warrant,
determine that any proposed item of business was not brought before the meeting
in accordance with the provisions of this Section 2.05, and if he should so
determine, he shall so declare to the meeting and the defective item of business
shall be disregarded.
2.06. Right to Attend. Except only to the extent of persons designated
by the Board of Directors or the Chairman of the meeting to assist in the
conduct of the meeting (as referred to in Sections 2.08 and 2.09 below) and
except as otherwise permitted by the Board or such Chairman, the persons
entitled to attend any meeting of shareholders may be confined to (i)
shareholders entitled to vote thereat and other shareholders entitled to notice
of the meeting and (ii) the persons upon whom proxies valid for purposes of the
meeting have been conferred or their duly appointed substitutes (if the related
proxies confer a power of substitution); provided, however, that the Board of
Directors or the Chairman of the meeting may establish rules limiting the number
of persons referred to in clause (ii) as being entitled to attend on behalf of
any shareholder so as to preclude such an excessively large representation of
such shareholder at the meeting as, in the judgment of the Board or such
Chairman, would be unfair to other shareholders represented at the meeting or be
unduly disruptive of the orderly conduct of business at such meeting (whether
such representation would result from fragmentation of the aggregate number of
shares held by such shareholder for the purpose of conferring proxies, from the
naming of an excessively large proxy delegation by such shareholder or from
employment of any other device). A person otherwise entitled to attend any such
meeting will cease to be so entitled if, in the judgment of the Chairman of the
meeting, such person engages thereat in disorderly conduct impeding the proper
conduct of the meeting in the interests of all shareholders as a group.
2.07. Quorum. Matters related to a quorum of the shareholders at any
meeting thereof will be determined in accordance with applicable law and the
Articles (ss.6 Art. Third), if applicable.
2.08. Election inspectors. The Board of Directors, in advance of any
shareholders meeting may appoint an election inspector or inspectors to act at
such meeting (and any adjournment thereof). If an election inspector or
inspectors are not so appointed, the Chairman of the meeting may or, upon
request of any person entitled to vote at the meeting will, make such
appointment. If any person appointed as an inspector fails to appear or to act,
a substitute may be appointed by the Chairman of the meeting. If appointed, the
election inspector or inspectors (acting through a majority of them if there be
more than one) will determine the number of shares outstanding, the
authenticity, validity and effect of proxies, the credentials of persons
purporting to be shareholders or persons named or referred to in proxies, and
the number of shares represented at the meeting in person and by proxy; they
will receive and count votes, ballots and consents and announce the results
thereof; they will hear and determine all challenges and questions pertaining to
proxies and voting; and, in general, they will perform such acts as may be
proper to conduct elections and voting with complete fairness to all
shareholders. No such election inspector need be a shareholder of the Company.
2.09. Organization and Conduct of Meetings. Each shareholders meeting
will be called to order and thereafter chaired by the Chairman of the Board; or
if the Chairman of the Board is absent or so requests, then by the President; or
if both the Chairman of the Board and the President are unavailable, then by
such other officer of the Company or such shareholder as may be appointed by the
Board of Directors. The Secretary (or in his or her absence an Assistant
Secretary) of the Company will act as secretary of each shareholders meeting; if
neither the Secretary nor an Assistant Secretary is in attendance, the Chairman
of the meeting may appoint any person (whether a shareholder or not) to act as
secretary thereat. After calling a meeting to order, the Chairman thereof may
require the registration of all shareholders intending to vote in person, and
the filing of all proxies with the election inspector or inspectors, if one or
more have been appointed (or, if not, with the secretary of the meeting). After
the announced time for such filing of proxies has ended, no further proxies or
changes, substitutions or revocations of proxies will be accepted. If directors
are to be elected, a tabulation of the proxies so filed will, if any person
entitled to vote in such election so requests, be announced at the meeting (or
adjournment thereof) prior to the closing of the election polls. Absent a
showing of bad faith on his or her part, the Chairman of a meeting will, among
other things, have absolute authority to determine the order of business to be
conducted at such meeting and to establish rules for, and appoint personnel to
assist in, preserving the orderly conduct of the business of the meeting
(including any informal, or question and answer, portions thereof.) Any
informational or other informal session of shareholders conducted under the
auspices of the Company after the conclusion of or otherwise in conjunction with
any formal business meeting of the shareholders will be chaired by the same
person who chairs the formal meeting, and the foregoing authority on his or her
part will extend to the conduct of such informal session.
2.10. Voting The number of shares voted on any matter submitted to the
shareholders which is required to constitute their action thereon or approval
thereof will be determined in accordance with applicable law and the Articles
(Art. Third), and these Bylaws, if applicable. No ballot or change of vote will
be accepted after the polls have been declared closed following the ending of
the announced time for voting.
2.11. Shareholder Approval or Ratification. The Board of Directors may
submit any contract or act for approval or ratification at any duly constituted
meeting of the shareholders, the notice of which either includes mention of the
proposed submittal or is waived as contemplated in Section 2.03 above. Except as
otherwise required by law (e.g., Arizona Revised Statutes Section 10-863), any
contract or act so submitted is approved or ratified by a majority of the votes
cast thereon at such meeting, the same will be valid and as binding upon the
Company and all of its shareholders as it would be if approved and ratified by
each and every shareholder of the Company.
2.12. Informalities and Irregularities. All informalities or
irregularities in any call or notice of a meeting, or in the areas of
credentials, proxies, quorums, voting and similar matters, will be deemed waived
if no objection is made at the meeting.
III. BOARD OF DIRECTORS
3.01. Membership. The Board of Directors will have the power to increase
or decrease its size within the limits fixed in the Articles (Art. Fifth). Any
vacancy occurring in the Board, whether by reason of death, resignation,
disqualification or otherwise, may be filled by the directors as contemplated by
law and the Articles (Art. Fifth). Any such increase in the size of the Board,
and the filling of any vacancy created thereby, will require action by a
majority of the whole membership of the Board as comprised immediately before
such increase.
3.02. Qualifications. In order to qualify as a director, a person must
be the owner of one or more shares of the capital stock of the Company or of any
parent corporation thereof at the time of assuming office (except that it shall
not be a requirement that any member of the initial Board of Directors be a
shareholder of the Company or of any parent corporation thereof, and except as
may otherwise be provided in these Bylaws or in the Articles) and for so long
thereafter as such person remains in office. A person will cease to qualify as a
director if he or she (i) is in good faith determined by a majority of the other
directors then in office to be physically or mentally incapable of competent
performance as a director for a period, starting with inception of the
incapacity, that has extended or is likely to extend for more than six months or
(ii) has failed to attend six successive regular meetings of the Board (as
determined in accordance with Section 3.03 below) unless and to the extent such
failure is waived by a majority of the other directors then in office; however,
disqualification pursuant to clause (i) or (ii) of this sentence will not
preclude the subsequent election or appointment of such person as a director by
the shareholders or the Board if a majority of the directors in office
immediately prior to the submission of such person for election or appointment
shall determine that his or her prior incapacity or principal reason for prior
non-attendance no longer exists. A person will not qualify for election or
appointment as a director, whether initially or on re-election and whether by
the shareholders at their annual meeting or by the Board or Directors as
contemplated in Section 3.01 above, if such person's 70th birthday occurs on or
has occurred before the date of such election, appointment, or re-election. A
person who has been a full-time employee of the Company within twelve months
prior to the date of any election will not qualify for election as a director on
that date unless he then remains a full-time employee of the Company or unless
the Board of Directors specifically authorizes the election of such person (but
it is not intended that any such authorization will extend a person's service on
the Board beyond the age limitation set out in the preceding sentence). A person
who has qualified by age or employment status for his or her most recent
election as a director may serve throughout the term for which such person was
elected, notwithstanding the occurrence of his or her 70th birthday or cessation
of full-time employment by the Company between the date of such election and the
end of such term, subject however, to his or her otherwise remaining qualified
for such office.
3.03. Regular Meetings. A regular annual meeting of the directors is to
be held as soon as practicable after the adjournment of each annual shareholders
meeting, either at the place of the shareholders meeting or at such other place
as the directors elect at the shareholders meeting may have been informed of at
or before the time of their election. Regular meetings, other than the annual
ones, may be held at regular intervals at such times and places as the Board of
Directors may provide.
3.04. Special Meetings. Special meetings of the Board of Directors may
be held whenever and wherever called for by the Chairman of the Board, the
President or the number of directors which would be required to constitute a
quorum.
3.05. Notice. No notice need be given of regular meetings of the Board
of Directors. Notice of the time and place (but not necessarily the purpose or
all of the purposes) of any special meeting will be given to each director in
person or by telephone, or via mail, telegram or facsimile transmission
addressed in the manner then appearing on the Company's records. Notice to any
director of any such special meeting will be deemed given sufficiently in
advance when (i) if given by mail, the same is deposited in the United States
mail at least four days before the meeting date, with postage thereon prepaid,
(ii) if given by telegram, the same is delivered to the telegraph office for
fast transmittal at least 48 hours prior to the convening of the meeting, (iii)
if given by facsimile transmission, the same is received by the director or an
adult member of his or her staff or household, at least 24 hours prior to the
convening of the meeting, or (iv) if personally delivered or given by telephone,
the same is handed, or the substance thereof is communicated over the telephone,
to the director or to an adult member of his or her office staff or household,
at least 24 hours prior to the convening of the meeting. Any such notice may be
waived as provided by law. No call or notice of a meeting of directors will be
necessary if each of them waives the same in writing or by attendance. Any
meeting, once properly called and noticed (or as to which call and notice have
been waived as aforesaid) and at which a quorum is formed, may be adjourned to
another time and place by a majority of those in attendance.
3.06. Quorum; Voting A quorum for the transaction of business at any
meeting or adjourned meeting of the directors will consist of a majority of
those then in office. Any matter submitted to a meeting of the directors will be
resolved by a majority of the votes cast thereon, except as otherwise required
by these Bylaws (Sections 3.01 and 3.02 above and Section 3.07 below), by law
and any other applicable section) or by the Articles. However, in case of an
equality of votes, the Chairman of the meeting will have a second or deciding
vote. Where action by a majority of the whole membership is required, such
requirement will be deemed to relate to a majority of the directors in office at
the time the action is taken. In computing any such majority, whether for
purposes of determining the presence of a quorum or the adequacy of the vote on
any proposed action, any unfilled vacancies at the time existing in the
membership of the Board will be excluded from the computation.
3.07. Executive Committee. The Board of Directors may, by resolution
adopted by a majority of the whole Board, name three or more of its members as
an Executive Committee who will include the Chairman of the Board and, if he or
she is a director, the President of the Company as ex-officio members. The
Chairman and, to the extent the naming of one is considered appropriate by the
Board, the Vice Chairman of the Executive Committee will from time to time be
designated by the Board from the membership of the Executive Committee. Such
Executive Committee will have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the Company while the
Board is not in session, except only as precluded by law or where action other
than by a majority of the votes cast is required by these Bylaws, or the law
(all as referred to in Section 3.06 above), and subject to such limitations as
may be included in any applicable resolution passed by a majority of the whole
membership of the Board. A majority of those named to the Executive Committee
will constitute a quorum.
3.08. Other Committees. Other standing or ad hoc committees (of such
respective sizes as may be considered appropriate by the Chairman of the Board),
their respective chairmen and (to the extent that the naming thereof is
considered appropriate by the Chairman of the Board) their respective vice
chairmen, may from time to time be appointed by the Chairman of the Board,
subject to the Board's approval or ratification, from the membership of the
Board to perform such functions as the Board may see fit. The committees so to
be appointed will include one or more to perform an audit review function. The
Chairman of the Board and the President of the Company may be ex-officio members
of all standing committees except any committee appointed to perform the audit
review function. Subject to the Board's approval or ratification, the Chairman
of the Board may at any time fill vacancies in, remove persons from,
consolidate, subdivide or dissolve any such standing or ad hoc committee.
3.09. Committee Functioning. Notice requirements (and related waiver
provisions) for meetings of the Executive Committee and other committees of the
Board will be the same as those set forth in Section 3.05 above for meetings of
the Board of Directors. Except as provided in the next two succeeding sentences,
a majority of those named to the Executive Committee or any other committee of
the Board will constitute a quorum at any meeting thereof (with the effect of
departure of committee members from a meeting and the computation of a majority
of committee members to be in accordance with the applicable policies of Section
3.06 above), and any matter submitted to a meeting of any such committee will be
resolved by a majority of the votes cast thereon. No distinction will be made
among ex-officio or other members of any such committee for quorum, voting or
other purposes, except that the membership of any committee (including the
Executive Committee), in performing any function vested in it as herein
contemplated, may be deemed to exclude any officer or employee of the Company,
in either case, or other person, having a direct or indirect personal interest
in any proposed exercise of such function, whose exclusion for that purpose is
deemed appropriate by a majority of the other members of such committee
proposing to perform such function. All committees are to keep regular minutes
of the transactions of their meetings.
3.10. Action by Telephone or Consent. Any meeting of the Board or any
committee thereof may be held by conference telephone or similar communications
equipment as permitted by law in which case any required notice of such meeting
may generally describe the arrangements (rather than the place) for the holding
thereof, and all other provisions herein contained or referred to will apply to
such meeting as though it were physically held at a single place. Action may
also be taken by the Board or any committee thereof without a meeting if the
members thereof consent in writing thereto as contemplated by law.
3.11. Presumption of Assent. A director of the Company who is present at
a meeting of the Board of Directors or of any committee when corporate action is
taken is deemed to have assented to the action taken unless either: (i) the
director objects at the beginning of the meeting or promptly on the director's
arrival to holding it or transacting business at the meeting; (ii) the
director's dissent or abstention from the action taken is entered in the minutes
of the meeting; or (iii) the director delivers written notice of the director's
dissent or abstention to the presiding officer of the meeting before its
adjournment or to the Company before 5:00 P.M. on the next business day after
the meeting. The right of dissent or abstention is not available to a director
who votes in favor of the action taken.
3.12. Compensation. By resolution of the Board, the directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors or of any committee, and may be paid a fixed sum for attendance at
each such meeting and/or a stated fee as a director or committee member. No such
payment will preclude any director from serving the Company in any other
capacity and receiving compensation therefor.
3.13. Removal. Any director or the entire Board of Directors may be
removed with or without cause, only at a special meeting of shareholders called
for that purpose, by the affirmative vote of sixty-six and two-thirds percent
(66-2/3%) of the issued and outstanding shares of stock then entitled to vote on
the election of directors, except that if less than the entire Board of
Directors is to be removed, no one of the directors may be removed if the votes
cast against the director's removal would be sufficient to elect the director if
then cumulatively voted at an election for the class of directors of which the
director is a part.
3.14. Directors Emeriti. With the exception of each person designated as
a director emeritus of the Company prior to December 17, 1970, no director or
former director of the Company or any other person is to be appointed as a
director emeritus or honorary director or be given any similar title. The one
position of director emeritus remaining in effect at the date of the initial
adoption of these Bylaws will continue for one-year terms, subject to
confirmation at each regular annual meeting of the directors; so long as he
remains in such position, that director emeritus will be accorded those
privileges and rights, and have those duties and responsibilities, which are set
out in the applicable portion of the minutes of the meeting of the Board of
Directors held on December 17, 1970.
IV. OFFICERS - GENERAL
4.01. Elections and Appointments. The directors will elect or appoint
the officers of the Company contemplated in Part V below such election or
appointment will regularly take place at the annual meeting of the directors,
but elections of officers may be held at any other meeting of the Board. A
person elected or appointed to any office will continue to hold that office
until the election or appointment of his or her successor, subject to action
earlier taken pursuant to Section 4.04 or 6.01 below. Any person may hold more
than one office.
4.02. Additional Appointments. In addition to the offices contemplated
in Part V below, the Board of Directors may create other corporate positions,
and appoint persons thereto, with such authority to perform such duties as may
be prescribed from time to time by the Board of Directors, by the chief
executive officer or by the superior officer of any person so appointed.
Notwithstanding such additional appointments, only those persons whose offices
are described in Part V are to be considered an officer of the Company unless
the resolution or other Board action appointing such person expressly states
that such person is to be considered an officer of the Company. Each of such
persons (in the order designated by the Board, the chief executive officer or
the superior officer of such person) will be vested with all of the powers and
charged with all of the duties of his or her superior officer in the event of
such superior officer's absence or disability.
4.03. Bonds and Other Requirements. The Board of Directors may require
any officer or other appointee to give bond to the Company (with sufficient
surety, and conditioned upon the faithful performance of the duties of his or
her office or position) and to comply with any other conditions which may from
time to time be required of him or her by the Board.
4.04. Removal or Delegation. Provided that a majority of the whole
membership thereof concurs therein, the Board of Directors may remove any
officer of the Company as provided by law and declare his or her office or
offices vacant or abolished or, in the case of the absence or disability of any
officer or for any other reason considered sufficient, may temporarily delegate
his or her powers and duties to any other officer or to any director. Similar
action may be taken by the Board of Directors in regard to appointees designated
pursuant to Section 4.02 above.
4.05. Salaries. Salary levels and bonus arrangements pertaining to the
officers of the Company will from time to time be set or approved by the Board
of Directors. Salary levels and bonus arrangements pertaining to appointees
contemplated in Section 4.02 above, unless so set or approved by the Board of
Directors, will be left to the discretion of the chief executive officer, which
discretion may be delegated by the chief executive officer to any one or more
other officers. Any salary or bonus so set or approved may be paid on such
current or deferred basis as may be designated by the Board or the officer who
shall have set or approved the same. No officer or appointee will be prevented
from receiving a salary or fee by reason of the fact that he or she is also a
director of the Company.
V. SPECIFIC OFFICERS, FUNCTIONS AND POWERS
5.01. Chairman of the Board. The Chairman of the Board of Directors will
serve as a general executive officer, but not necessarily as a full-time
employee, of the Company. He or she will preside at all meetings of the
directors and be vested with such other powers and duties as the Board may from
time to time designate.
5.02. Chief Executive Officer. Subject to the control of the Board of
Directors exercised as hereinafter provided, the Chief Executive Officer of the
Company will supervise its business and affairs and the performance of their
respective duties by all other officers, by appointees designated pursuant to
Section 4.02 above, and by such additional appointees to such additional
positions corporate, divisional or otherwise) as the Chief Executive Officer may
designate, with authority on his or her part to delegate the foregoing duty of
supervision to such extent and to such person or persons as may be determined by
the Chief Executive Officer. except as otherwise indicated from time to time by
resolution of the Board of Directors, its management of the business and affairs
of the Company will be implemented through the office of the Chief Executive
Officer.
5.03. President and Vice Presidents. Unless specified to the contrary by
resolution of the Board of Directors, the President will be the Chief Executive
Officer of the Company. In addition to the supervisory functions above set forth
on the part of the Chief Executive Officer (or in lieu thereof if a contrary
specification is made by the Board relative to the Chief Executive Officer), the
President will be vested with such powers and duties as the Board may from time
to time designate. Vice Presidents may be elected by the Board of Directors to
perform such duties as may be designated by the Board or be assigned or
delegated to them by their respective superior officers. The Board may identify
(i) one or more Vice Presidents as "Executive" or "Senior" Vice Presidents, (ii)
the President or any Vice President as "General Manager" of the Company and
(iii) any Vice President, the Treasurer, the Controller or the General Auditor
as having one or more of the capacities referred to in Section 5.05 below, and
the title of any Vice President, the Treasurer, the Controller or the General
Auditor may include words indicative of his or her particular function or area
of responsibility and authority. Vice Presidents will succeed to the
responsibilities and authority of the President, in the event of his or her
absence or disability, in the order consistent with their respective titles or
regular duties or as specifically designated by the Board of Directors or,
pending action by the Board of Directors, by the Chairman of the Board.
5.04. Treasurer. Controller, General Auditor and Secretary. The
Treasurer, Controller, General Auditor and Secretary each will perform all such
duties normally associated with his or her office including, in the case of the
Secretary, the giving of notice and the preparation and retention of minutes of
corporate proceedings and the custody of corporate records and the seal of the
Company) as are not assigned to a Vice President of the Company, along with such
other duties as may be designated by the Board or be assigned or delegated to
them by their respective superior officers. The Board may appoint one or more
Assistant Treasurers, Assistant Controllers, Assistant General Auditors and
Assistant Secretaries, each of whom (in the order designated by the Board or
their respective superior officers) will be vested with all of the powers and
charged with all of the duties of the Treasurer, Controller, General Auditor or
Secretary (as the case may be) in the event of his or her absence or disability.
5.06. Specific Powers. Except as may otherwise be specifically provided
in a resolution of the Board of Directors, any of the officers referred to in
this Part V will be a proper officer to authenticate records of the Company and
to sign on behalf of the Company any deed, bill of sale, assignment, option,
mortgage, pledge, note, bond, debenture, evidence of indebtedness, application,
consent (to service of process or otherwise), agreement, indenture or other
instrument of importance to the Company. Any such officer may represent the
Company at any meeting of the shareholders or members of any corporation,
association, partnership, joint venture or other entity in which this Company
then has an interest, and may vote such interest in person or by proxy appointed
by him or her, provided that the Board of Directors may from time to time confer
the foregoing authority upon any other person or persons.
VI. RESIGNATIONS AND VACANCIES
6.01. Resignation. Any director, committee member, officer or other
appointee may resign from his or her office or position at any time by written
notice as specified in accordance with Arizona Revised Statutes Sections 10-807
and 10-843. The acceptance of a resignation will not be required to make it
effective.
6.02. Vacancies. If the office or position of any director, committee
member or officer, or any appointee designated pursuant to Section 4.02 above,
becomes vacant by reason of his or her death, resignation, disqualification,
removal or otherwise, the Board of Directors may choose a successor to hold
office for the unexpired term.
VII. INDEMNIFICATION AND RATIFICATION
7.01. Indemnification. In order to induce qualified persons to serve the
Company (and any other corporation, joint venture, partnership, trust or other
enterprise at the request of the Company) as directors and officers, the Company
will indemnify such persons to the fullest extent permitted by law or by the
Articles, if applicable. Insofar as applicable law requires a determination as
to the standard of conduct followed by a person seeking indemnification, the
Board of Directors or the disinterested members thereof will consider the
relevant facts, or cause them to be submitted for consideration, as soon as
practicable, but such consideration of any facts in issue in pending legal
proceedings will not be required before the final adjudication thereof. A
determination, whether favorable or adverse to the party seeking
indemnification, pursuant to any such consideration (which determination, if the
same is to be made by a court pursuant to law, will be deemed made when
contained in a final unappealed or unappealable decision) will be binding on all
parties concerned.
7.02. Ratification; Special Committee. Any transaction involving the
Company, any of its subsidiary corporations or any of its directors, officers,
employees or agents which at any time is questioned in any manner or context
(including a shareholder's derivative suit), on the ground of lack of authority,
conflict of interest, misleading or omitted statement of fact or law,
nondisclosure, miscomputation, improper principles or practices of accounting,
inadequate records, defective or irregular execution or any similar ground, may
be investigated and/or ratified (before or after judgment), or an election may
be made not to institute or pursue a claim or legal proceedings on account
thereof or to accept or approve a negotiated settlement with respect thereto
(before or after the institution of legal proceedings), by the Board of
Directors or by a special committee thereof comprised of one or more
disinterested directors (that is, a director or directors who did not
participate in the questioned transaction with actual knowledge of the
questioned aspect or aspects thereof). Such a special committee may be validly
formed and fully empowered to act, in accordance with the purposes and duties
assigned thereto, by resolution or resolutions of the Board of Directors,
notwithstanding (i) the inclusion of Board members who are not disinterested as
aforesaid among those who form a quorum at the meeting or meetings at which one
or more members of such special committee are elected or appointed to the Board
or to such special committee or at which such committee is formed or empowered,
or their inclusion among the directors who vote upon or otherwise participate in
taking any of the foregoing actions, or (ii) the taking of any of such actions
by the disinterested members of the Board (or a majority of such members) whose
number is not sufficient to constitute a quorum or a majority of the membership
of the full Board. Any such special committee so comprised will, to the full
extent consistent with its purposes and duties as expressed in such resolution
or resolutions, have all of the authority and powers of the full Board and its
Executive Committee (the same as though it were the full Board and/or its
Executive Committee in carrying out such purposes and duties) and will function
in accordance with Section 3.09 above. No other provisions of these Bylaws which
may at any time appear to conflict with any provision of this Section 7.02, and
no defect or irregularity in the formation, empowering or functioning of any
such special committee, will serve to impede, impair or bring into question any
action taken or purported to be taken by such committee or the validity of any
such action. Any ratification of a transaction pursuant to this Section 7.02
will have the same force and effect as if the transaction has been duly
authorized originally. Any such ratification, and any election made pursuant to
this Section 7.02 with respect to claims, legal proceedings or settlements, will
be binding upon the Company and its shareholders and will constitute a bar to
any claim or the execution of any judgment in respect of the transaction
involved in such ratification or election.
VIII. SEAL
8.01. Form Thereof. The seal of the Company will have inscribed thereon
the name of the Company, the year of its incorporation and the word "SEAL."
IX. STOCK CERTIFICATES
9.01. Form Thereof. Each certificate representing stock of the Company
will be in such form conforming to law as may from time to time be approved by
the Board of Directors, and will bear the manual or facsimile signatures and
seal of the Company as required or permitted by law.
9.02. Ownership. The Company will be entitled to treat the registered
owner of any share as the absolute owner thereof and accordingly, will not be
bound to recognize any beneficial, equitable or other claim to, or interest in,
such share on the part of any other person, whether or not it has notice
thereof, except as may expressly be provided by Chapter 8 of Title 47, Arizona
Revised Statutes (or its successor), as at the time in effect, or other
applicable law.
9.03. Transfers. Transfers of stock will be made on the books of the
Company only upon surrender of the certificate therefor, duly endorsed by an
appropriate person, with such assurance of the genuineness and effectiveness of
the endorsement as the Company may require, all as contemplated by Chapter 8 of
Title 47, Arizona Revised Statutes (or its successor), as at the time in effect,
and/or upon submission of any affidavit, other document or notice which the
Company considers necessary.
9.04. Lost Certificates. In the event of the loss, theft or destruction
of any certificate representing stock of this Company or of any predecessor
corporation, the Company may issue (or, in the case of any such stock as to
which a transfer agent and/or registrar have been appointed, may direct such
transfer agent and/or registrar to countersign, register and issue) a
replacement certificate in lieu of that alleged to be lost, stolen or destroyed,
and cause the same to be delivered to the owner of the stock represented
thereby, provided that the owner shall have submitted such evidence showing the
circumstances of the alleged loss, theft or destruction, and his or her
ownership of the certificate as the Company considers satisfactory, together
with any other facts which the Company considers pertinent, and further provided
that an indemnity agreement and/or indemnity bond shall have been provided in
form and amount satisfactory to the Company and to its transfer agents and/or
registrars, if applicable.
X. EMERGENCY BYLAWS
10.01. Emergency Conditions. The emergency Bylaws provided in this Part
X will be effective in the event of an emergency as prescribed in Arizona
Revised Statutes Section 10-207.D. To the extent not inconsistent with the
provisions of this Part X, these Bylaws will remain in effect during such
emergency and upon its termination these emergency Bylaws will cease to be
operative.
10.02. Board Meetings. During any such emergency, a meeting of the Board
of Directors or any of its committees may be called by any officer or director
of the Company. Notice of the time and place of the meeting will be given by the
person calling the same to those of the directors whom it may be feasible to
reach by any available means of communication. Such notice will be given so much
in advance of the meeting as circumstances permit in the judgment of the persons
calling the same. At any Board or committee meeting held during any such
emergency, a quorum will consist of a majority of those who could reasonably be
expected to attend the meeting if they were able to do so, but in no event more
than a majority of those to whom notice of such meeting is required to have been
given as above provided.
10.03. Certain Actions. The Board of Directors, either before or during
any such emergency, may provide and from time to time modify lines of succession
in the event that during such an emergency any or all officers, appointees,
employees or agents of the Company are for any reason rendered incapable of
discharging their duties. The Board, either before or during any such emergency,
may, effective in the emergency, change the head office or designate several
alternative head offices of the Company, or authorize the officers to do so.
10.04. Liability. No director, officer, appointee, employee or agent
acting in accordance with these emergency Bylaws will be liable except for
willful misconduct.
10.05. Modifications. These emergency Bylaws will be subject to repeal
or change by further action of the Board of Directors, but no such repeal or
change will modify the provisions of Section 10.04 with respect to action taken
prior to the time of such repeal or change. Any amendment of these emergency
Bylaws may make any further or different provisions that may be practical and
necessary for the circumstances of the emergency.
XI. DIVIDENDS
11.01. Declaration. Subject to such restrictions or requirements as may
be imposed by law or the Company's Articles or as may otherwise be binding upon
the Company, the Board of Directors may from time to time declare dividends on
stock of the Company outstanding on the dates of record fixed by the Board, to
be paid in cash, in property or in shares of the Company's stock on or as of
such payment or distribution dates as the Board may prescribe.
XII. AMENDMENTS
12.01. Procedure. These Bylaws may be amended, supplemented, repealed or
temporarily or permanently suspended, in whole or in part, or new bylaws may be
adopted, at any duly constituted meeting of the Board of Directors, the notice
of which meeting either includes mention of the proposed action relative to the
Bylaws or is waived as provided in Section 3.05 above. If, however, the chairman
of any such meeting or a majority of directors in attendance thereat in good
faith determines that any such action has arisen as a matter of necessity at the
meeting and is otherwise proper, no notice of such action will be required.
12.02. Amendment of Bylaws. Notwithstanding any other provision of these
Bylaws, Sections 2.02, 3.01, and 3.13 and Article XII of these Bylaws shall not
be altered, amended, supplemented, repealed, or temporarily or permanently
suspended, in whole or in part, or replacement Bylaw provisions adopted without:
(i) the affirmative vote of a majority of the directors then in office; or (ii)
the affirmative vote of seventy-five percent (75%) or more of the outstanding
shares of the Company entitled to vote generally.
-----------------------------------------------
CERTIFICATE
I, NANCY C. LOFTIN, the Secretary of ARIZONA PUBLIC SERVICE COMPANY, an
Arizona Corporation, do HEREBY CERTIFY that the foregoing is a true and correct
copy of the Company's Bylaws, as amended and that such Bylaws, as amended, are
in full force and effect as of the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
said corporation this 20th day of February, 1996.
[SEAL]
NANCY C. LOFTIN
Secretary