Exhibit 3.1.1
[SEAL]
OFFICE OF THE
PUBLIC REGULATION COMMISSION
RESTATED CERTIFICATE OF INCORPORATION
OF
PUBLIC SERVICE COMPANY OF NEW MEXICO
3243953
The Public Regulation Commission certifies that duplicate originals of
Restated Articles of Incorporation attached hereto, duly signed and verified
pursuant to the provisions of the
BUSINESS CORPORATION ACT
(53-11-1 to 53-18-12 NMSA 1978)
have been received by it and are found to conform to law.
Accordingly, by virtue of the authority vested in it by law, the Public
Regulation Commission issues this Restated Certificate of Incorporation and
attached hereto a duplicate original of the Restated Articles of Incorporation.
Dated: MAY 31, 2002
In testimony whereof, the Public Regulation
Commission of the State of New Mexico has
caused this certificate to be signed by its
Chairman and the seal of said Commission to
affixed at the City of Santa Fe.
/s/
----------------------------------
Chairman
/s/
----------------------------------
Bureau Chief
ARTICLES OF AMENDMENT TO
THE RESTATED ARTICLES OF INCORPORATION
OF
PUBLIC SERVICE COMPANY OF NEW MEXICO
Pursuant to the provisions of NMSA 1978, Section 53-13-4 (2001), Public
Service Company of New Mexico adopts the following Articles of Amendment to its
Restated Articles of Incorporation, as amended:
I. ARTICLES FIRST through EIGHTH of the Restated Articles of
Incorporation, as previously amended, are amended as follows, and ARTICLES NINTH
through FOURTEENTH are deleted:
A. ARTICLE FIRST is amended to read: "ARTICLE I
Name
----
The name of the Corporation is Public Service Company of New Mexico."
B. ARTICLE SECOND is amended to read: "ARTICLE II
Period of Duration
------------------
The period of its duration is perpetual."
C. ARTICLE THIRD is amended to read: "ARTICLE III
Purpose
-------
The purposes of the Corporation are to provide electric and gas utility
services and to engage in any other lawful business for which corporations may
be incorporated under the laws of the State of the New Mexico. The Corporation
shall have all the powers that are lawful for a corporation to exercise under
New Mexico law."
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D. ARTICLE FOURTH is amended to read: "ARTICLE IV
Authorized Number of Shares
---------------------------
A. Authorized Capital Shares. The total number of shares of stock which
the Corporation shall have the authority to issue is Forty (40) Million shares
of Common Stock, no par value, and Ten (10) Million shares of Preferred Stock,
no par value, and shall be issued for such minimum consideration as authorized
by the Board of Directors.
B. Common Stock. The Board of Directors is authorized by resolution to
provide from time to time for the issuance of shares of Common Stock to existing
holders of Common Stock subject to the following restrictions and
qualifications:
(1) Dividends. Subject to any rights of holders of Preferred Stock,
dividends (payable in cash, stock or otherwise) as may be determined by
the Board of Directors in accordance with dividend policy established
by the shareholders may be declared and paid on the Common Stock from
time to time from any available funds, property or shares.
(2) Voting Rights. Subject to any rights of holders of Preferred
Stock to vote on a matter as a class or series, each outstanding share
of Common Stock shall be entitled to one vote on each matter submitted
to a vote of holders of Common Stock at a meeting of shareholders.
Cumulative voting for the election of directors of the Corporation
shall not be permitted.
(3) Liquidation, Dissolution or Winding Up. In the event of any
liquidation, dissolution or winding up of the Corporation, the holders
of Common Stock shall be entitled to receive the net balance of any
assets of the Corporation remaining after any distribution of the
assets of the Corporation to the holders of Preferred Stock to the
extent necessary to satisfy any preferences to the assets and
satisfaction of all debt of the Corporation.
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(4) Other Preferred Stock Rights. The issuance of shares of Common
Stock to existing holders of Common Stock shall be subject to the
rights of holders of outstanding Preferred Stock as provided in Article
VIII.
C. Preferred Stock. The Board of Directors is authorized by resolution
to provide from time to time for the issuance of shares of Preferred Stock in
series and to fix, from time to time before issuance, the designation,
preferences, privileges and voting powers of the shares of each series of
Preferred Stock and its restrictions or qualifications, limited to the
following:
(1) the serial designation, authorized number of shares and the
stated value;
(2) the dividend rate, if any, the date or dates on which the
dividends will be payable, and the extent to which the dividends may be
cumulative;
(3) the price or prices at which shares may be redeemed, and any
terms, conditions and limitations upon any redemption;
(4) the amount or amounts to be received by the holders in the event
of dissolution, liquidation, or winding up of the Corporation;
(5) any sinking fund provisions for redemption or purchase of shares
of any series;
(6) the terms and conditions, if any, on which shares may be
converted into, or exchanged for, shares of other series of Preferred
Stock, of the Corporation, but may not be converted into, or exchanged
for, shares of Common Stock of the Corporation; and
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(7) the voting rights, if any, for the shares of each series,
limited to circumstances when:
(a) the Corporation fails to pay dividends on the
applicable series; and
(b) when a proposed amendment to these Articles would have
an adverse impact on the rights and privileges of the
preferred stockholders.
D. Preemptive Rights. The holders of Preferred Stock shall not have a
preemptive right to acquire authorized but unissued shares, securities
convertible into shares or carrying a right to subscribe to or acquire shares,
except under such terms and conditions as may be provided by the Board of
Directors."
E. ARTICLE FIFTH is amended to read: "ARTICLE V
Directors
---------
The number of directors of the Corporation shall be as specified in the
Bylaws but shall be no less than three (3) and no more than twelve (12).
Directors shall be elected annually at the annual meeting of shareholders."
F. ARTICLE SIXTH is amended to read: "ARTICLE VI
Limitation on Liability
-----------------------
The liability of the directors of the Corporation for monetary damages
shall be eliminated or limited to the fullest extent permissible under New
Mexico law as it may be amended from time to time."
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G. ARTICLE SEVENTH is amended to read: "ARTICLE VII
Bylaws
------
A. The common shareholders of the Corporation are authorized to alter,
amend and repeal the Corporation's Bylaws, or adopt new Bylaws. The Board of
Directors of the Corporation is authorized to alter, amend and repeal the
Corporation's Bylaws, except as provided in this Article."
B. The Board of Directors is not authorized to alter, amend or repeal
the provisions of the Corporation's Bylaws relating to the number of Directors,
compensation of Directors, selection of the Chairman of the Board of Directors,
and selection of the President.
C. The Bylaws of the Corporation shall:
(1) provide for the shareholders to fix the number of directors;
(2) require that Board compensation be established by the
shareholders;
(3) require that the Chairman of the Board be selected by the
shareholders; and
(4) require that the President of the Corporation be selected by the
shareholders."
H. ARTICLE EIGHTH is amended to read: "ARTICLE VIII
1965 SERIES PREFERRED STOCK
A. The only series of Preferred Stock that is outstanding as of the
effectiveness of these Restated Articles of Incorporation is the Cumulative
Preferred Stock, 1965 Series, 4.58% (the "1965 Series Preferred Stock"). The
rights and privileges accorded to holders of the 1965 Series Preferred Stock
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shall not be diminished as a result of adoption of these Restated Articles of
Incorporation. The specific terms of the 1965 Series Preferred Stock are set
forth in the "Certificate Setting Forth Resolutions of Board of Directors
Creating a Series of Cumulative Preferred Stock and Fixing the Amount,
Designation, Characteristics and Terms Thereof", dated January 21, 1965 (the
"1965 Series Resolutions"). The general rights and privileges of the 1965 Series
Preferred Stock are set forth in this Article, which shall be applicable only to
the 1965 Series Preferred Stock. The 1965 Series Preferred Stock is senior to
the Common Stock and the Common Stock is subject to all the rights and
preferences of the 1965 Series Preferred Stock.
B. The 1965 Series Preferred Stock has the preferences and voting
powers or restrictions, or qualifications as set forth in this Article. In
addition, the 1965 Series Preferred Stock has the designations, terms and
characteristics set forth in the 1965 Series Resolutions.
C. The holders of the 1965 Series Preferred Stock, in preference to the
holders of any stock ranking junior to the 1965 Series Preferred Stock, shall be
entitled to receive cash dividends at the rate per annum specified in the 1965
Series Resolutions, and no more, payable on dates fixed by the Board of
Directors at the time of creation of the series, when and as declared by the
Board of Directors, out of any funds of the Corporation legally available for
that purpose. The dividends shall be cumulative from the first day of the
dividend period in which the stock shall have been originally issued and shall
be paid, or declared and set apart for payment, before any dividends shall be
declared or paid on or set apart for any class of stock ranking junior to the
1965 Series Preferred Stock as to dividends or assets, so that if, for any past
dividend period, dividends or the current dividend period dividends on the 1965
Series Preferred Stock shall not have been paid, or declared and set apart for
payment, the deficiency shall be fully paid or declared and funds set apart for
the payment of those dividends before any dividends shall be declared or paid on
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or set apart for any class of stock ranking junior to the 1965 Series Preferred
Stock as to dividends or assets. No dividends shall at any time be paid on or
set apart for any share of 1965 Series Preferred Stock unless at the same time
there shall be paid on or set apart for all shares of 1965 Series Preferred
Stock then outstanding dividends in such amount that the holders of all shares
of 1965 Series Preferred Stock shall receive or have set apart for them a
uniform percentage of the full annual dividend to which they are, respectively,
entitled. The term "dividend period," as used herein, refers to each period of
three consecutive calendar months ending on the day next preceding each date on
which dividends, if declared, shall be payable. Unless and until full cumulative
dividends upon the 1965 Series Preferred Stock for all past dividend periods and
for the current dividend period shall have been paid, or declared and set apart
for payment, no dividend whatsoever (other than a dividend payable in shares of
any class of stock ranking junior to the 1965 Series Preferred Stock as to
dividends and assets) shall be paid or declared on, and no distribution shall be
made or ordered in respect of, any class of stock ranking junior to the 1965
Series Preferred Stock as to dividends or assets, and no money (other than the
net proceeds received from the sale of stock ranking junior to the 1965 Series
Preferred Stock as to dividends or assets) shall be set aside or applied to the
purchase or redemption (through a sinking fund or otherwise) of any class of
stock ranking junior to the 1965 Series Preferred Stock as to dividends or
assets.
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D. In the event of the liquidation, dissolution or winding up, whether
voluntary or involuntary, of the Corporation, the holders of shares of 1965
Series Preferred Stock shall be entitled, in preference to any class of stock
ranking junior to the 1965 Series Preferred Stock as to dividends or assets, to
be paid in full, out of the net assets of the Corporation, the liquidation price
of their shares plus an amount equal to the accrued dividends on their shares to
the date of distribution. In the event the liquidation, dissolution or winding
up of the Corporation is voluntary, the holders of the 1965 Series Preferred
Stock shall also be entitled to receive for each share, in preference to any
class of stock ranking junior to the 1965 Series Preferred Stock as to dividends
or assets, such premium or premiums as may be fixed by the Board of Directors at
the time of creation of the series. Unless and until payment in full is made to
the holders of shares of the 1965 Series Preferred Stock, no distribution shall
be made to any class of stock ranking junior to the 1965 Series Preferred Stock
as to dividends or assets. If upon any liquidation, dissolution or winding up,
the assets distributable among the holders of the 1965 Series Preferred Stock
are insufficient to permit the payment of the full preferential amounts to which
they are entitled, then the entire assets of the Corporation to be distributed
shall be distributed among the holders of the 1965 Series Preferred Stock
ratably in proportion to the full preferential amounts to which they are
respectively entitled. 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 this section.
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E.(1) The Board of Directors of the Corporation shall have the right at
any time, subject to any initial limiting period set forth in the 1965 Series
Resolutions, and from time to time to redeem all or any part of the 1965 Series
Preferred Stock by paying to the holders of the shares to be redeemed the
redemption price or prices of the shares, which shall include, in each case, an
amount equal to the accrued dividends on the shares to the date fixed for
redemption. In the case of the redemption of shares, the redemption price or
prices shall be the redemption price or prices as fixed by the Board of
Directors at the time of creation of the series plus an amount equal to the
accrued dividends to the date fixed for redemption. Not less than thirty (30)
nor more than sixty (60) days prior to the date fixed for redemption of any
shares of the 1965 Series Preferred Stock, notice of the intention of the
Corporation to redeem the shares, specifying the date and place of redemption,
shall be deposited in a United States post office or mail box at any place in
the United States addressed to each holder of record of the shares to be
redeemed at his or her address as it appears upon the records of the Corporation
and the time of the mailing shall be deemed to be the time of the giving of
notice.
(2) In every case of redemption of less than all of the outstanding
shares of the 1965 Series Preferred Stock, at the option of the Board of
Directors, the redemption shall be made pro rata or the shares of the series to
be redeemed shall be chosen by lot in the manner prescribed by resolution of the
Board of Directors; provided, however, that the selection shall be made as set
forth in this subsection, in respect of any registered holder of the 1965 Series
Preferred Stock having one thousand (1,000) shares or more of the 1965 Series
Preferred Stock registered in his or her name. If, at the time any selection by
lot is to be made, one thousand (1,000) shares or more of the aggregate number
of shares of the 1965 Series Preferred Stock are registered in the name of one
holder, then before making the selection by lot, the Corporation shall allocate
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to each registered holder holding one thousand (1,000) shares or more of the
series a proportion of the shares to be redeemed equal, as nearly as
practicable, to the proportion that the shares of the series then outstanding
registered in the name of the holder bears to all shares of the series then
outstanding. In that case, the selection by lot of the number of shares to be
redeemed not so allocated shall be made from the registered holders holding less
than one thousand (1,000) shares of the series.
(3) The Corporation may deposit in trust with a bank or trust company
the aggregate redemption price of the shares to be redeemed, for payment on or
before the redemption date to the holders of the shares, upon surrender of the
certificates for the shares. The bank or trust company shall be named in the
notice of redemption, shall be located in the City of New York, New York, and
shall have capital, surplus and undivided profits aggregating at least
$2,000,000. The deposit in trust may, at the option of the Corporation, contain
terms so that, if the holder of any shares of 1965 Series Preferred Stock called
for redemption does not claim the amount on deposit for the payment of the
redemption price within six years after the date fixed for redemption, the bank
or trust company shall on demand pay the amount to the Corporation or its
successor. The bank or trust company shall thereafter be released from any and
all further liability with respect to the payment of the redemption price and
the holder of the shares shall be entitled to look only to the Corporation or
its successor for payment. Upon the giving of notice of redemption and upon the
deposit of the redemption price, or if no deposit is made, upon the redemption
date (unless the Corporation defaults in making payment of the redemption price
as set forth in the notice), the holders shall cease to be stockholders with
respect to the shares, and from and after the making of the deposit and the
giving of the notice, or, if no deposit is made, after the redemption date (the
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Corporation not having defaulted in making payment of the redemption price as
set forth in the notice), the shares shall no longer be transferable on the
books of the Corporation, and the holders shall have no interest in or claim
against the Corporation with respect to the shares, but shall be entitled only
to receive the redemption price from the bank or trust company, or from the
Corporation, without interest, upon surrender of the certificates.
(4) The term "accrued dividends," as used in this Article, shall mean,
in respect of any share of the 1965 Series Preferred Stock as of any given date,
the amount of dividends payable on the share, whether or not earned or declared,
computed, at the annual dividend rate fixed for the share, from the date on
which dividends on the share became cumulative through the given date, less the
aggregate amount of all dividends which have been paid or which have been
declared and set apart for payment on the share. Accumulations of dividends
shall not bear interest.
(5) Upon the redemption of shares of the 1965 Series Preferred Stock,
the shares shall resume the status which they had prior to the adoption by the
Board of Directors of resolutions creating the series, as provided in section B
of this Article and shall thereafter have the status of authorized but unissued
shares of the Preferred Stock of the Corporation and may be reissued from time
to time upon adoption of a resolution or resolutions by the Board of Directors
of the Corporation creating a new series of Preferred Stock or increasing the
number of shares constituting any series of Preferred Stock then outstanding, as
provided in section B and subject to the provisions of section F.
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(6) Nothing contained in this section shall limit any legal right of
the Corporation to purchase any shares of the 1965 Series Preferred Stock.
F.(1) So long as any shares of 1965 Series Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of 1965 Series
Preferred Stock:
(a) Amend the provisions of the Articles of Incorporation so as to
create or authorize any stock ranking prior in any respect to the 1965
Series Preferred Stock; or issue any such stock; or
(b) Change, by amendment to the Articles of Incorporation, or
otherwise, the terms and provisions of the 1965 Series Preferred Stock
so as to affect adversely the rights and preferences of the holders.
No consent of the holders of the 1965 Series Preferred Stock shall be
required in respect of any transaction enumerated in this subsection (1) if at
or prior to the time when the transaction is to take effect provision is made
for the redemption or other retirement of all shares of 1965 Series Preferred
Stock at the time outstanding, the consent of which would otherwise be required.
(2) So long as any shares of the 1965 Series Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote of the
holders of a majority of the total number of shares of 1965 Series Preferred
Stock then outstanding:
(a) Issue any shares of the 1965 Series Preferred Stock or shares of
any stock ranking on a parity with the 1965 Series Preferred Stock,
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other than in exchange for, or for the purpose of effecting the
redemption or other retirement of, shares having an aggregate
redemption price approximately equal to the redemption price of the
shares being issued, unless:
(I) the net income (determined in accordance with accepted
accounting principles) of the Corporation available for the
payment of dividends shall, for a period of twelve consecutive
calendar months within the fifteen calendar months next
preceding the issue of the shares, have been at least two (2)
times an amount equal to the dividend requirements for one year
on all shares of the 1965 Series Preferred Stock and on all
other shares of stock, if any, ranking prior to or on a parity
with the 1965 Series Preferred Stock, which shall be outstanding
after the issue of the shares proposed to be issued; and
(II) the gross income after federal income taxes
(determined in accordance with accepted accounting principles)
of the Corporation available for the payment of interest charges
shall, for a period of twelve consecutive calendar months within
the fifteen calendar months next preceding the issue of the
shares, have been at least one and one-half (1 1/2) times the
aggregate, for a twelve months period, of the dividend
requirement and the annual interest charges on all funded
indebtedness and notes payable of the Corporation maturing more
than twelve months after, and outstanding at, the date of the
issue of the shares; and
(III) the capital represented by the Common Stock and the
surplus accounts of the Corporation shall be not less than the
aggregate amount payable on the involuntary dissolution,
liquidation or winding up of the Corporation, in respect of all
shares of the 1965 Series Preferred Stock and all shares of
stock, if any, of equal or prior ranking, which shall be
outstanding after the issue of the shares proposed to be issued.
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(b) Issue or assume any unsecured debentures or other unsecured
indebtedness, but excluding unsecured indebtedness maturing within
eighteen months after issuance, for any purpose other than the
refunding of secured or unsecured indebtedness previously created or
assumed by the Corporation and then outstanding, or the retiring, by
redemption or otherwise, of shares of the 1965 Series Preferred Stock
or shares of any stock of equal or prior ranking, if
(I) immediately after the issue or assumption the total
amount of all indebtedness of the Corporation, both secured and
unsecured indebtedness due more than one year after issuance
shall exceed sixty-five per cent (65%) of the aggregate of (i)
the total amount of all indebtedness maturing more than one year
from the date as of which that unsecured indebtedness will be
issued, and then outstanding, and (ii) the total of the capital
and surplus of the corporation, as then recorded on its books;
and
(II) the gross income after federal income taxes
(determined in accordance with accepted accounting principles)
of the Corporation available for the payment of interest charges
shall not, for a period of twelve consecutive calendar months
within the fifteen calendar months next preceding the issue of
the unsecured debentures, have been at least one and three
quarters (1 3/4) times the aggregate of the dividend
requirements for one year on all shares of the 1965 Series
Preferred Stock and on all other shares of stock, if any, of
equal or prior ranking to the 1965 Series Preferred Stock, which
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shall be then outstanding, and the annual interest charges on
all funded indebtedness and notes payable of the Corporation
maturing more than twelve months after, and outstanding at, the
date of the issue of the unsecured debentures or other unsecured
indebtedness.
No consent of the holders of 1965 Series Preferred Stock shall
be required in respect of any transaction enumerated in this subsection
(2) if, at or prior to the time when the transaction is to take effect,
provision is made for the redemption or other retirement of all shares
of the 1965 Series Preferred Stock at the time outstanding, the consent
of which would otherwise be required.
No provision contained in this section is intended or shall be
construed to relieve the Corporation from compliance with any
applicable statutory provision requiring the vote or consent of a
greater number of the outstanding shares of the 1965 Series Preferred
Stock.
G. So long as any shares of the 1965 Series Preferred Stock are
outstanding, the Corporation shall not declare or pay any dividends on its
Common Stock (other than dividends payable in Common Stock) or make any
distribution on, or purchase or otherwise acquire for value, any of its Common
Stock (each such payment, distribution, purchase or acquisition being referred
to as a "common stock dividend"), except to the extent permitted by the
following provisions of this section:
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(a) No common stock dividend shall be declared or paid in an amount
which, together with all other common stock dividends declared in the
twelve consecutive calendar months ended with and including the
calendar month in which the proposed declaration is made, would in the
aggregate exceed fifty per cent (50%) of the net income of the
Corporation available for dividends on its Common Stock for the twelve
consecutive calendar months ending on the last day of the calendar
month next preceding the declaration of the common stock dividend, if
at the end of the calendar month the ratio ("capitalization ratio") of
the sum of (i) the capital represented by the Common Stock (including
premiums on Common Stock) and (ii) the surplus accounts, of the
Corporation, to the sum of (x) the total capital and (xx) the surplus
accounts, of the Corporation (after adjustment, in each case, of the
surplus accounts to reflect payment of the common stock dividend) would
be less than twenty per cent (20%);
(b) If the capitalization ratio shall be twenty per cent (20%) or
more, but less than twenty-five per cent (25%), no common stock
dividend shall be declared or paid in an amount which, together with
all other common stock dividends declared in the twelve consecutive
calendar months ended with and including the calendar month in which
the proposed declaration is made, would exceed seventy-five per cent
(75%) of the net income of the corporation available for dividends on
its Common Stock for the twelve consecutive calendar months ending on
the last day of the calendar month next preceding the declaration of
the common stock dividend; and
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(c) If the capitalization ratio shall be twenty-five per cent (25%)
or more, no common stock dividend shall be declared or paid which would
reduce capitalization ratio to less than twenty-five per cent (25%)
except to the extent permitted by paragraphs (a) and (b) of this
section.
For the purpose of paragraphs (a), (b) and (c): (i) the net income
of the Corporation available for dividends on its Common Stock for any
twelve month period is to be computed after deducting an amount equal
to dividends accrued for the twelve month period on shares of stock
having preference as to dividends over the Common Stock and (ii) the
total capital of the Corporation shall be deemed to consist of the
aggregate of (x) the principal amount of all outstanding indebtedness
of the Corporation maturing one year or more after the date of issue
and (xx) the par or stated value of all outstanding capital stock
(including premiums on capital stock) of all classes of the
Corporation. All indebtedness and capital stock owned by the
Corporation shall be excluded in determining total capital. Surplus
accounts shall be deemed to include all earned surplus, paid in
surplus, capital surplus or any other surplus of the Corporation.
Purchases or other acquisitions of Common Stock shall be deemed, for
the purpose of this section, to have been made as of the date on which
the purchases or acquisitions are consummated.
H. No holder of the 1965 Series Preferred Stock shall be entitled to
vote for the election of directors or in respect of any matter, except as
provided in section F of this Article or in this section, or as may be required
by law. If, however, dividends payable on the outstanding 1965 Series Preferred
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Stock shall be accumulated and unpaid in an amount equivalent to four (4)
quarterly dividends, the holders of the stock shall be entitled, until all
accumulated and unpaid dividends shall have been fully paid or declared and
funds set apart for payment: (a) voting for as a single class, at the next
annual meeting of stockholders, to elect one third of the directors to be
elected at that annual meeting of stockholders and at the following annual
meeting of stockholders, if dividends payable on the outstanding 1965 Series
Preferred Stock continue to be due and unpaid, to elect a majority of the
directors to be elected at that annual meeting of stockholders, and to continue
to elect a majority of the Board of Directors until all accumulated and unpaid
dividends on the outstanding 1965 Series Preferred Stock shall have been paid;
and (b) to vote on all questions so that the holders shall have one (1) vote for
each ten dollars ($10) of stated value per share of 1965 Series Preferred Stock
(stated values not equaling dollar increments shall be rounded up to the next
ten dollar increment for these purposes), and this right to vote shall not be
cumulative; provided that if and when profits available for dividends are in
excess of accumulated and unpaid dividends, then the declaration and payment of
the dividends shall not be unreasonably withheld.
In consideration of the issue by the Corporation, and the purchase by
the holders, 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 the shares, to have
expressly consented to each and every term and provision of this section and to
have agreed that the voting rights of the holder and their restrictions and
qualifications shall be as set forth in this section.
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I. No share of stock or evidence of indebtedness shall be deemed to be
"outstanding" as that term is used in the Articles of Incorporation, as amended,
if, prior to or concurrently with the event in reference to which a
determination as to the amount outstanding is to be made, the requisite funds
for its redemption shall be deposited in trust for that purpose and the
requisite notice for its redemption shall be given or the depositary of the
funds shall be irrevocably authorized and directed to give or complete the
notice of redemption."
II. This amendment was adopted by the shareholders on May 17, 2002.
III. The number of shares outstanding and entitled to vote on the
amendment was 39,117,799.
IV. The number of shares voting in favor of the amendment was
39,117,799 with no votes being cast against and no votes abstaining.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /s/ Jeffry E. Sterba
-------------------------------
JEFFRY E. STERBA
Chairman, President and Chief
Executive Officer
DATED: May 17, 2002
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