UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 1, 1996
SOUTHWESTERN PUBLIC SERVICE COMPANY
(Exact name of registrant as specified in its charter)
New Mexico 1-3789 75-0575400
(State or other jurisdiction of (Commission File No.) (I.R.S. Employer
incorporation or organization) Identification No.)
Tyler at Sixth, Amarillo, Texas 79101
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, including area code (806) 378-2121
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ITEM 5. OTHER EVENTS
On January 31, 1996, the Annual Meeting of Shareholders of Southwestern
Public Service Company ("SPS") was held. At the meeting, the holders of SPS
common stock approved an amendment to the SPS Restated Articles of Incorporation
to provide for a new class of 10 million shares of preferred stock, $1 par
value, which may be issued in series with such terms and conditions as may be
set by SPS's board.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits. The following exhibits are filed herewith:
3(i) Restated Articles of Incorporation as amended through
February 1, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
SOUTHWESTERN PUBLIC SERVICE COMPANY
/s/ Doyle R. Bunch II
Executive Vice President
Accounting and Corporate Development
DATE: February 23, 1996
RESTATED
ARTICLES OF INCORPORATION
OF
SOUTHWESTERN PUBLIC SERVICE COMPANY
Pursuant to Section 53-13-7 New Mexico Statutes Annotated, 1978
Compilation, Southwestern Public Service Company, a New Mexico corporation, by a
resolution duly adopted by its Board of Directors, restates its Articles of
Incorporation, as previously amended, as follows:
FIRST: The name of the corporation shall be SOUTHWESTERN PUBLIC SERVICE
COMPANY (the "Corporation").
SECOND: The location of the principal office of the Corporation in New
Mexico shall be at 111 East Fifth, Roswell, New Mexico.
THIRD: The purpose for which the Corporation is organized is the
transaction of any and all lawful business for which corporations may be
incorporated under the New Mexico Business Corporation Act (the "NMBCA").
FOURTH: The total number of authorized shares of the Corporation shall
be 110,000,000, divided into 10,000,000 preferred shares having a par value of
$1 per share (the "Preferred Stock") and 100,000,000 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.
(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 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;
(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 law or these
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: The duration of the Corporation shall be perpetual.
SIXTH: The number of directors shall be fixed in the manner provided in
the Bylaws of the Corporation (the "Bylaws"), but in no case shall the number of
directors elected by the holders of the Common Stock be less than nine, nor
greater than fifteen. The Board of Directors shall be divided into three
classes, the first class designated "Class I," the second class designated
"Class II," and the third class designated "Class III." The number of directors
in each class elected by the holders of the Common Stock, or by the holders of
the Preferred Stock pursuant to the provisions of subdivision (F) of Article
Fourth, shall be as nearly equal as possible. The term of directors in Class I
shall be initially one year and thereafter three years. The term of directors in
Class II shall be initially two years and thereafter three years. The term of
directors in Class III shall be three years. The initial term for each of the
foregoing classes shall commence on the election of directors at the annual
meeting of shareholders in 1990. At each annual meeting of shareholders
commencing with the annual meeting in 1991, a number of directors equal to the
number of the class whose term expires at the time of such meeting shall be
elected (unless the number of directors in such class has been increased or
decreased, in which case such larger or smaller number shall be elected) by the
affirmative vote of the holders of the majority of the shares represented at
such meeting either in person or by proxy and entitled to vote on the election
of directors. Notwithstanding the foregoing, each director shall hold office
until his or her successor is chosen and qualified in his or her stead.
Newly created directorships resulting from any increase in the number
of directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office, or other cause
may be filled by a majority vote of the directors then in office (even though
the number of directors then in office may constitute less than a quorum). A
director elected to fill a vacancy shall be elected for the unexpired term of
his or her predecessor in office. A director elected to fill an increase in the
number of directors may be elected by the Board of Directors for a term of
office continuing only until the next election of directors by the shareholders.
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 as it
existed on January 13, 1988, 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.
Any repeal or modification of this Article Sixth by the shareholders of
the Corporation shall not adversely affect any right or protection of a director
of the Corporation in respect of any act or omission occurring prior to the time
of the repeal or modification.
SEVENTH: Subject to the rights of holders of any class or series of
shares ranking prior to the Common Stock in respect of dividends or assets, only
persons who are nominated in accordance with the procedures set forth in this
paragraph shall be eligible to be nominated as directors at any meeting of the
shareholders of the Corporation. At any meeting of the shareholders of the
Corporation, nominations of persons for election to the Board of Directors may
be made (1) by or at the direction of the Board of Directors or (2) by any
shareholder of the Corporation who is a shareholder of record at the time of
giving the notice provided for in this paragraph, who shall be entitled to vote
at the meeting, and who complies with the notice procedures set forth in this
paragraph. For a nomination to be properly brought before a shareholders'
meeting by a shareholder, timely written notice shall be made to the Secretary
of the Corporation. The shareholder's notice shall be delivered to, or mailed
and received at, the principal office of the Corporation not less than 35 days
nor more than 50 days prior to the meeting; provided, however, in the event that
less than 45 days notice or prior public disclosure of the date of the meeting
is given or made to shareholders, notice by the shareholder to be timely must be
received not later than the close of business on the tenth day following the day
on which the notice of the date of the meeting was mailed or the public
disclosure was made. The shareholder's notice shall set forth (1) as to each
person whom the shareholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required by applicable law (including the person's written consent to being
named as a nominee and to serving as a director if elected), and (2) (a) the
name and address, as they appear on the Corporation's books, of the shareholder,
(b) a representation that the shareholder is a holder of record of the Common
Stock entitled to vote at the meeting on the date of the notice and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice, and (c) a description of all arrangements or
understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder. The shareholder shall also comply
with all applicable requirements of the Securities Exchange Act of 1934, as
amended (the "1934 Act") and the rules and regulations thereunder with respect
to the matters set forth in this paragraph. If the chairman of the meeting shall
determine and declare at the meeting that a nomination was not made in
accordance with the procedures prescribed by this paragraph, the nomination
shall not be accepted.
At any meeting of the shareholders of the Corporation, only such
business shall be conducted as shall have been brought before the meeting (1) by
or at the direction of the Board of Directors or (2) by any shareholder of the
Corporation who is a shareholder of record at the time of giving the notice
provided for in this paragraph, who shall be entitled to vote at the meeting,
and who complies with the notice procedures set forth in this paragraph. For
business to be properly brought before a shareholders' meeting by a shareholder,
timely written notice shall be made to the Secretary of the Corporation. The
shareholder's notice shall be delivered to, or mailed and received at, the
principal office of the Corporation not less than 35 days nor more than 50 days
prior to the meeting; provided, however, in the event that less than 45 days
notice or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be received not later
than the close of business on the tenth day following the day on which the
notice of the date of the meeting was mailed or the public disclosure was made.
The shareholder's notice shall set forth (1) a brief description of the business
desired to be brought before the meeting and the reasons for considering the
business, and (2) (a) the name and address, as they appear on the Corporation's
books, of the shareholder, (b) a representation that the shareholder is a holder
of record of the Common Stock entitled to vote at the meeting on the date of the
notice and intends to appear in person or by proxy at the meeting to present the
business specified in the notice, and (c) any material interest of the
shareholder in the proposed business. The shareholder shall also comply with all
applicable requirements of the 1934 Act and the rules and regulations thereunder
with respect to the matters set forth in this paragraph. If the chairman of the
meeting shall determine and declare at the meeting that the proposed business
was not brought before the meeting in accordance with the procedures prescribed
by this paragraph, the business shall not be considered.
The notice procedures set forth in this Article Seventh do not change
or limit any procedures the Corporation may require in accordance with
applicable law with respect to the inclusion of matters in the Corporation's
proxy statement.
EIGHTH: 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.
NINTH: These Restated Articles of Incorporation may be amended by the
affirmative vote of the holders of a majority of the shares of the Common Stock
in addition to any affirmative vote of the holders of the Preferred Stock
required by these Restated Articles of Incorporation or the laws of the State of
New Mexico.
Notwithstanding the foregoing or any other provision of these Restated
Articles of Incorporation or the Bylaws (and notwithstanding that a lesser
percentage may be specified by law), in order to amend, alter, change, or
repeal, or to adopt any provisions inconsistent with, Article Sixth, Article
Seventh, or this paragraph of Article Ninth, or to remove any director of the
Corporation without cause, the affirmative vote of the holders of at least
two-thirds of the Common Stock shall be required (in addition to any affirmative
vote of the holders of the Preferred Stock required by these Restated Articles
of Incorporation or the laws of the State of New Mexico).
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These Restated Articles of Incorporation correctly set forth without
change the corresponding provisions of the Articles of Incorporation as
previously amended and supersede the original Articles of Incorporation and all
amendments.
Dated: January 31, 1996
SOUTHWESTERN PUBLIC SERVICE COMPANY
By /s/ DAVID M. WILKS
President
By /s/ ROBERT D. DICKERSON
Secretary
STATE OF TEXAS
COUNTY OF POTTER } ss.:
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 contained in the document is true and correct
to the best of his information and belief.
/s/ DAVID M. WILKS
SWORN AND SUBSCRIBED TO BEFORE ME by the said DAVID M. WILKS on this
31st day of January, 1996.
/s/ PATRICIA L. BELCHER
Notary Public, State of Texas
My commission expires: February 8, 2000
[NOTARIAL SEAL]
[Filed in the office of the State Corporation
Commission of the State of New Mexico and
made effective on February 1, 1996.]
