Exhibit 3(b)2
SOUTHWESTERN PUBLIC SERVICE COMPANY
BYLAWS
(as amended through September 29, 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 a place, date, and hour 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 the Chairman of the Board, the Vice Chairman of the
Board, the President, a majority of the directors, or any person or persons
authorized by the New Mexico Business Corporation Act (the "Act") to request
such a meeting. Special meetings of the shareholders shall be held at a
place, date, and hour designated by the Chairman of the Board, the Vice
Chairman of the Board, 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 Vice Chairman of the
Board or 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, subject to any limitations set forth in the Amended
and Restated Articles of Incorporation. A Chairman of the Board and/or a
Vice Chairman of the Board may be chosen from among the directors.
No person who has attained the age of 65 shall be eligible for election
as a director of the Company unless he or she is a non-employee member of the
Board of Directors. No non-employee director who has attained the age of 70
shall serve as a director effective with the next annual meeting of the
shareholders. No director who was also an officer of the Company or any
affiliate of the Company when he or she ceased being an officer or attained
the age of 65 shall serve as a director effective with the first day of the
following month after ceasing to be an officer or attaining the age of 65.
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 Vice Chairman of the Board, the President, or
any two 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 Amended and Restated
Articles of Incorporation, these Bylaws, and the resolution establishing the
committee, shall have and may exercise all of 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 Vice Chairman of the Board,
the President, the chairman of the committee, or any member 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 President, a
Secretary, and a Treasurer, and may include a Chairman of the Board, a Vice
Chairman of the Board, a chief executive officer, a chief operating officer,
a chief financial officer, one or more Vice Presidents (one or more of whom
may be designated Executive Vice President or Senior Vice President), a
Controller, and/or a chief accounting officer.
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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, disability, death, resignation, or removal.
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 such 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, the Vice Chairman of the Board, or the President, or as shall
be conferred or required by law or these Bylaws, or as shall be normally
incidental to the office. Unless otherwise restricted by the Board of
Directors from time to time, (i) the Chairman of the Board, the Vice Chairman
of the Board, the President, the chief executive officer, the chief operating
officer, the chief financial officer, and any Vice President of the Company
(including Executive Vice Presidents, Senior Vice Presidents, and Assistant
Vice Presidents) may execute and deliver instruments and contracts on behalf
of the Company and otherwise may bind the Company, and (ii) any of the
foregoing officer-signatories and the Board of Directors may delegate to any
other person, in writing, the authority to execute and deliver instruments
and contracts on behalf of the Company and otherwise bind the Company.
ARTICLE IV
Indemnification of Directors, Officers, Employees, and Agents
Section 1. Mandatory Indemnification. 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 Act, as the same exists on the date of the adoption of these Bylaws 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 permitted by the Act 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
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in settlement) actually incurred by such person in connection therewith. 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 incurred in
defending or prosecuting any Proceeding in advance of its final disposition.
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 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.
Section 2. Recovery Against the Company. If a claim under Section 1
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 Act) 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 Act, 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.
Section 3. Non-Exclusive Right. 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 to which any person may be entitled under any statute, provision
of the Amended and Restated Articles of Incorporation, or Bylaw, any
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.
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Section 4. Insurance. 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 Act.
Section 5. Delegation of Authority. 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.
Section 6. Continuing Effect. 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 persons. Anything in this
Article IV to the contrary notwithstanding, no elimination or 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 or amendment of these Bylaws 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.
Section 7. Severability. 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.
Section 8. Notice to Shareholders. Submission of these Bylaws 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.
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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 Act.
Section 2. Transfer Rules. The Board of Directors, the Chairman of
the Board, the Vice 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 Act.
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.
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