Exhibit 3(a)2
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SOUTHWESTERN PUBLIC SERVICE COMPANY
Pursuant to Sections 53-13-4 and -7, New Mexico Statutes Annotated,
Southwestern Public Service Company, a New Mexico corporation (the
"Corporation"), hereby amends and restates its Articles of Incorporation, as
previously amended and restated, as follows:
FIRST: Name. The name of the Corporation is Southwestern Public
Service Company.
SECOND: Principal New Mexico Office. The location of the principal
office of the Corporation in New Mexico shall be at 111 East Fifth, Roswell,
New Mexico.
THIRD: Purpose. The purpose for which the Corporation is organized is
to transact any and all lawful business for which corporations may be
incorporated under the New Mexico Business Corporation Act (the "NMBCA").
FOURTH: Capital Stock. The total number of authorized shares of the
Corporation shall be 10,000,200, divided into 10,000,000 preferred shares
having a par value of $1 per share (the "Preferred Stock") and 200 common
shares having a par value of $1 per share (the "Common Stock").
The designations, voting powers, preferences, and relative,
participating, optional, or other special rights, and qualifications,
limitations, or restrictions of the above classes of stock are as follows:
(A) Preferred Stock
(1) Issuance in Series. Shares of Preferred Stock may be
issued in one or more series when and for such consideration or
considerations as the Board of Directors determines. All series will
rank equally and be identical in all respects, except as permitted by
the following provisions of paragraph 2 of this Article Fourth (A).
(2) Authority of the Board with Respect to Series. The Board
of Directors is authorized, at any time, to provide for the issuance of
the shares of Preferred Stock in one or more series with the
designations, voting powers, preferences, and relative, participating,
optional, or other special rights, and qualifications, limitations, or
restrictions thereof as are stated in the resolution or resolutions
providing for the issue thereof adopted by the Board of Directors, and
as are not stated in these Amended and Restated Articles of
Incorporation or any amendment hereto or not otherwise prescribed by
law including, but not limited to, determination of any of the
following:
(i) The maximum number of shares to constitute the series,
which may subsequently be increased or decreased (but not below
the number of shares of such series then outstanding) by
resolution of the Board of Directors and the distinctive
designation thereof;
(ii) Whether the shares of the series shall have any
voting powers, in addition to the voting powers provided by law,
and, if any, the terms of the voting powers;
(iii) The dividend rate or rates, if any, on the shares of
the series or the manner in which such rate or rates shall be
determined, the conditions and dates upon which the dividends
shall be payable, and the preference or relation which the
dividends shall bear to the dividends payable on any other class
or classes or on any other series of capital stock, and whether
the dividends shall be cumulative or noncumulative;
(iv) Whether the shares of the series shall be subject to
redemption by the Corporation, and, if made subject to
redemption, the times, prices, and other terms, limitations,
restrictions, or conditions of the redemption;
(v) The relative amounts, and the relative rights or
preferences, if any, of payment in respect of shares of the
series, which the holders of shares of the series shall be
entitled to receive upon the liquidation, dissolution, or winding
up of the Corporation;
(vi) Whether the shares of the series shall be subject to
the operation of a retirement or sinking fund and, if so, the
extent to which and the manner in which any retirement or sinking
fund shall be applied to the purchase or redemption of the shares
of the series for retirement or for other corporate purposes, and
the terms and provisions relative to the operation of the
retirement or sinking fund;
(vii) Whether the shares of the series shall be
convertible into, or exchangeable for, shares of any other class,
classes, or series, or other securities, whether or not issued by
the Corporation, and if so convertible or exchangeable, the price
or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting them;
(viii) The limitations and restrictions, if any, to be
effective while any shares of the series are outstanding upon the
payment of dividends or the making of other distributions on, and
upon the purchase, redemption, or other acquisition by the
Corporation of, the Common Stock or any other class or classes of
stock of the Corporation ranking junior to the shares of the
series either as to dividends or upon liquidation, dissolution,
or winding up of the Corporation;
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(ix) The conditions or restrictions, if any, upon the
creation of indebtedness of the Corporation or upon the issuance
of any additional stock (including additional shares of such
series or of any other class) ranking on a parity with or prior
to the shares of the series as to dividends or distribution of
assets upon liquidation, dissolution, or winding up of the
Corporation; and
(x) Any other preference, relative, participating,
optional, or other special rights, and the qualifications,
limitations, or restrictions thereof, not inconsistent with law,
this Article Fourth, or any resolution of the Board of Directors
pursuant hereto.
(3) Preemptive Rights. The holders of the Preferred Stock
shall have no preemptive rights to subscribe to any issue of shares or
other securities of any class of the Corporation.
(B) Common Stock
(1) Dividends. Subject to the preferential rights of holders
of the Preferred Stock, dividends may be paid or declared and set apart
for payment upon the Common Stock out of any funds legally available
for the declaration of dividends, but only when and as determined by
the Board of Directors.
(2) Liquidation, Dissolution, or Winding Up. Subject to the
preferential rights of holders of the Preferred Stock in the event of
any voluntary or involuntary liquidation, dissolution, or winding up of
the Corporation, the holders of shares of the Common Stock shall be
entitled to receive all of the assets of the Corporation available for
distribution to its shareholders ratably in proportion to the number of
shares of the Common Stock they hold.
(3) Voting Rights. Except as may be otherwise required by the
NMBCA or these Amended and Restated Articles of Incorporation, each
holder of Common Stock has one vote for each share of stock he or she
holds of record on the books of the Corporation on all matters voted
upon by the shareholders. Cumulative voting for the election of
directors shall not be permitted.
(4) Preemptive Rights. The holders of the Common Stock shall
have no preemptive rights to subscribe to any issue of shares or other
securities of any class of the Corporation.
FIFTH: Duration. The duration of the Corporation shall be perpetual.
SIXTH: Number of Directors. The number of directors shall be fixed as
provided in the Bylaws of the Corporation (the "Bylaws") or, if the Bylaws
fail to fix the number, by resolution adopted from time to time by the Board
of Directors.
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SEVENTH: Limitations of Liability; Indemnification. A director of the
Corporation shall not be personally liable to the Corporation or to its
shareholders for monetary damages for a breach of fiduciary duty as a
director unless (a) he or she has breached or failed to perform the duties of
his or her office in accordance with the NMBCA, and (b) the breach or failure
to perform constitutes negligence, willful misconduct, or recklessness. If
the NMBCA is amended to permit the further elimination or limitation of the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the NMBCA, as amended.
To the maximum extent permitted by law, the Corporation shall indemnify
any person who is or was a director, officer, agent, fiduciary, or employee
of the Corporation against any claim, liability, loss, or expense arising
against or incurred by such person as a result of circumstances, events,
actions, and omissions occurring in such capacity. The Corporation further
shall have the authority to maintain insurance at the Corporation's expense
providing for such indemnification, including insurance with respect to
claims, liabilities, losses, and expenses against which the Corporation would
not otherwise have the power to indemnify such persons.
Any repeal or modification of this Article Seventh by the shareholders
of the Corporation shall not adversely affect any right or protection of a
director, officer, agent, fiduciary, or employee of the Corporation in
respect of any act or omission occurring prior to the time of the repeal or
modification.
EIGHTH: Bylaws. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is authorized to make and alter
the Bylaws, subject to the power of the shareholders to alter and repeal the
Bylaws made by the Board of Directors.
* * * * *
The foregoing Amended and Restated Articles of Incorporation include
amendments to the Corporation's previous Articles of Incorporation, as
amended. These amendments were duly approved and adopted by the Board of
Directors of the Corporation effective August 26, 1997.
The sole shareholder of the Corporation, owning 100 shares of common
stock of the Corporation, duly approved the foregoing Amended and Restated
Articles of Incorporation (including the amendments reflected therein) by
written consent effective August 26, 1997. All such shares were eligible to
vote on the amendment as a single class, and all such shares were voted for
and none against such amendments. No other shares of capital stock of the
Corporation were or are outstanding.
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These Amended and Restated Articles of Incorporation correctly set
forth the corresponding provisions of the Articles of Incorporation as
amended and supersede the original Articles of Incorporation and all prior
amendments thereto.
Dated: September 30, 1997.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By /s/ David M. Wilks
David M. Wilks, President
By /s/ Mary Pullum
Mary Pullum, Secretary
STATE OF TEXAS )
) ss.
COUNTY OF POTTER )
David M. Wilks, being first duly sworn, states that he is President of
Southwestern Public Service Company, that he has read and signed the
foregoing document, and that every statement in the document is true and
correct to the best of his information and belief.
/s/ David M. Wilks
David M. Wilks
SWORN AND SUBSCRIBED TO BEFORE ME BY David M. Wilks, as President of
Southwestern Public Service Company, on this 30th day of September 1997.
/s/ Teresa Joan Parker
Teresa Joan Parker
Notary Public, State of Texas
My commission expires: May 19, 2001
[NOTARIAL SEAL]
[Filed in the office of the State
Corporation Commission of
New Mexico and made effective
on October 1, 1997.]
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