MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Public Utilities
By: Representatives Beckett, Staples, Hines
AN ACT TO AMEND SECTION 77-5-203, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF CERTAIN TERMS AS USED IN THE ELECTRIC POWER ASSOCIATION LAW; TO AMEND SECTION 77-5-207, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE PERIOD OF DURATION OF A CORPORATION FORMED UNDER THIS ARTICLE MAY BE PERPETUAL; TO AMEND SECTION 77-5-209, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE NAME OF A CORPORATION SHALL INCLUDE EITHER THE WORDS "ELECTRIC POWER ASSOCIATION" OR "ELECTRIC COOPERATIVE"; TO AMEND SECTION 77-5-211, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURE FOR FILING A CERTIFICATE OF INCORPORATION WITH THE SECRETARY OF STATE; TO AMEND SECTION 77-5-215, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCEDURE FOR A CORPORATION TO AMEND ITS CERTIFICATE OF INCORPORATION; TO AMEND SECTION 77-5-217, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCEDURE WHEREBY TWO OR MORE CORPORATIONS MAY ENTER INTO AN AGREEMENT FOR CONSOLIDATION; TO AMEND SECTION 77-5-219, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCEDURE FOR DISSOLUTION OF A CORPORATION; TO AMEND SECTION 77-5-221, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROVISION PROVIDING FOR THE ANNUAL ELECTION OF A BOARD OF DIRECTORS; TO AMEND SECTION 77-5-223, MISSISSIPPI CODE OF 1972, TO REVISE THE POWERS OF THE BOARD OF DIRECTORS; TO AMEND SECTION 77-5-225, MISSISSIPPI CODE OF 1972, TO DELETE CERTAIN LANGUAGE REGARDING RATES TO NONMEMBERS; TO AMEND SECTION 77-5-229, MISSISSIPPI CODE OF 1972, TO MAKE A NONSUBSTANTIVE CHANGE; TO AMEND SECTION 77-5-231, MISSISSIPPI CODE OF 1972, TO REVISE THE SPECIFIC POWERS OF A CORPORATION FORMED UNDER THIS ARTICLE; TO AMEND SECTION 77-5-233, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A CORPORATION SHALL CONTINUE TO HAVE THE POWER TO ACQUIRE, CONSTRUCT, OWN, INVEST IN, OPERATE, MAINTAIN AND/OR IMPROVE GENERATING AND/OR TRANSMISSION ASSETS; TO AMEND SECTION 77-5-235, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ALL RATES OF A CORPORATION FORMED UNDER THIS ARTICLE SHALL BE ESTABLISHED BY THE CORPORATION'S BOARD; TO AMEND SECTION 77-5-239, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A CORPORATION TO INCUR OBLIGATIONS AND LIABILITIES, BORROW MONEY, ISSUE NOTES, BONDS, CERTIFICATES OF INDEBTEDNESS AND OTHER OBLIGATIONS, AND TO ENTER CONTRACTS OF GUARANTY; TO AMEND SECTION 77-5-241, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY NOTE, BOND OR OTHER INDEBTEDNESS ISSUED BY A CORPORATION MAY BEAR SUCH INTEREST RATE OR RATES AS MAY BE DETERMINED BY THE BOARD OF DIRECTORS; TO AMEND SECTION 77-5-243, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE SECURITY FOR OBLIGATIONS OF A CORPORATION; TO AMEND SECTION 77-5-247, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT MONIES OF A CORPORATION SHALL BE DEPOSITED OR INVESTED IN ONE OR MORE BANKS, TRUST COMPANIES, FINANCIAL INSTITUTIONS OR SUCH OTHER PUBLIC OR PRIVATE ENTITIES AS MAY BE APPROVED BY THE BOARD OF DIRECTORS; TO AMEND SECTION 77-5-249, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A CORPORATION AND ITS PROPERTY SHALL BE TAXED AND ASSESSED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSISSIPPI; TO AMEND SECTION 77-5-253, MISSISSIPPI CODE OF 1972, TO REQUIRE EACH CORPORATION TO SUBMIT AN ANNUAL BALANCE SHEET AND INCOME STATEMENT TO THE MISSISSIPPI PUBLIC SERVICE COMMISSION AND PUBLIC UTILITIES STAFF; TO AMEND SECTION 77-5-255, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR MEDIATION PROCEEDINGS OF DISPUTES BETWEEN MEMBERS OR CUSTOMERS AND ELECTRIC POWER ASSOCIATIONS; TO CREATE SECTION 77-5-257, MISSISSIPPI CODE OF 1972, TO DECLARE THAT THE MISSISSIPPI PUBLIC SERVICE COMMISSION AND POLITICAL SUBDIVISIONS OF THE STATE SHALL NOT HAVE JURISDICTION OVER THOSE PORTIONS OR ASPECTS OF A CORPORATION'S OPERATIONS, FACILITIES, SERVICES OR RATES THAT ARE REGULATED BY THE TENNESSEE VALLEY AUTHORITY; TO CREATE SECTION 77-5-259, MISSISSIPPI CODE OF 1972, TO LIMIT THE TIME BY WHICH AN ACTION MAY BE COMMENCED FOR COLLECTION OR REIMBURSEMENT ARISING FROM A BILLING ERROR BY A CORPORATION; TO CREATE SECTION 77-5-261, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR DERIVATIVE PROCEEDINGS; TO CREATE SECTION 77-5-263, MISSISSIPPI CODE OF 1972, TO PROVIDE INDEMNIFICATION FOR DIRECTORS AND OFFICERS OF A CORPORATION; TO CREATE SECTION 77-5-265, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A STANDARD OF DIRECTOR'S CONDUCT; TO CREATE SECTION 77-5-267, MISSISSIPPI CODE OF 1972, TO REGULATE CONFLICT OF INTEREST TRANSACTIONS; TO CREATE SECTION 77-5-269, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN OFFICER IS NOT LIABLE FOR ANY ACTION TAKEN AS AN OFFICER, OR ANY FAILURE TO TAKE ANY ACTION, IF HE PERFORMED THE DUTIES OF HIS OFFICE IN COMPLIANCE WITH THIS SECTION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 77-5-203, Mississippi Code of 1972, is amended as follows:
77-5-203. The following terms whenever used or referred to in this article shall have the following meanings, unless a different meaning clearly appears from the context:
(a) "Corporation" shall mean a corporation formed under this article or operating under this article pursuant to Section 77-5-213.
(b) "Bonds" shall mean and include bonds, interim certificates or receipts, notes, debentures and all other evidences of indebtedness, either issued or the payment thereof assumed by the corporation.
(c) "Person" shall mean and include natural persons, firms, associations, corporations, business trusts, partnerships and bodies politic.
(d) "Energy" shall mean and include any and all electric energy no matter how or where generated or produced.
(e) "Acquire" shall mean and include construct, acquire by purchase, lease, devise, gift, or other mode of acquisition.
(f) "System" shall mean and include any plant, works, system, facilities, or properties, or parts thereof, together with all appurtenances thereto, used or useful in connection with the generation, production, transmission or distribution of energy.
(g) "Law" shall mean any act or statute, general, special or local of this state.
(h) "Federal
agency" shall mean and include the United States of America, the President
of the United States of America, Tennessee Valley Authority, the Federal
Emergency * * * Management Agency, the United States Department
of Agriculture and its agencies, including the Rural Utilities Service, and
any and all other authorities, agencies and instrumentalities of the United
States of America, heretofore or hereafter created.
(i) "Improve" shall mean and include construct, reconstruct, improve, replace, extend, enlarge, alter, better or repair.
(j) "Board" shall mean the board of directors of a corporation formed under this article.
(k) "Member" shall mean and include each natural person signing the certificate of incorporation of a corporation and each person admitted to and retaining membership therein pursuant to law or its bylaws, and shall include a joint membership as defined by the corporation's bylaws.
(l) "Services" or "service" shall mean the sale or other disposition of energy, electrical appliances, wiring and equipment at the lowest cost consistent with sound economy, public advantage and the prudent conduct of the business of a corporation.
(m) "Certificate of incorporation" includes a certificate of incorporation or articles of incorporation.
(n) "Rate" means and includes every compensation, charge, deposit, contribution, fee, fare, toll, rental, cost and classification, or the formula or method by which such may be determined, or any of them, demanded, observed, charged, collected, avoided, or owed by a corporation for or relating to electric energy offered or provided by the corporation to the public or received by the corporation, and any rules, regulations, practices or contracts relating to any such compensation, charge, deposit, contribution, fee, fare, toll, rental, cost, or classification, including, but not limited to, any rules, regulations, practices or contracts relating to the disconnection of service to members or nonmember customers who have failed to pay for electric energy provided by the corporation.
SECTION 2. Section 77-5-207, Mississippi Code of 1972, is amended as follows:
77-5-207. The certificate of incorporation shall state:
(a) The name of the corporation, which name shall include the words "electric power association" or "electric cooperative" and shall be such as to distinguish it from any other corporation organized and existing under the laws of this state.
(b) The location of its principal office and the post-office address thereof.
(c) The maximum number of directors, not less than three (3).
(d) The names and post-office addresses of the directors who are to manage the affairs of the corporation for the first year of its existence, or until their successors are chosen.
(e) The period of the
duration of the corporation, which * * * may
be perpetual.
(f) The terms and conditions upon which persons shall be admitted to membership in the corporation.
The certificate of incorporation may also contain any provisions not contrary to law which the incorporators may choose to insert for the regulation of its business and for the conduct of the affairs of the corporation. It may also contain any provisions creating, defining, limiting or regulating the powers of the corporation, its directors and members.
SECTION 3. Section 77-5-209, Mississippi Code of 1972, is amended as follows:
77-5-209. The name of
a corporation * * * shall include either the
words "electric power association" or "electric
cooperative." The words "electric power association" and the
words "electric cooperative" shall not be used in the corporate name
of any corporation other than those formed pursuant to the provisions of this
article or those operating under this article pursuant to Section 77-5-213.
Whenever the words "electric power association" or "electric
cooperative" or "nonprofit cooperative electric power
association" appear in the laws of this state, such words shall refer to a
corporation formed pursuant to and/or operating under the provisions of this
article, including a corporation that uses either the words "electric
power association" or "electric cooperative" in its name.
SECTION 4. Section 77-5-211, Mississippi Code of 1972, is amended as follows:
77-5-211. The natural
persons executing the certificate of incorporation shall be residents of the
territory in which the principal operations of the corporation are to be
conducted, who are desirous of using electric energy to be furnished by the
corporation. The certificate of incorporation shall be acknowledged by the
subscribers before any officer authorized to take acknowledgments to deeds or
other instruments. When so acknowledged, the * * * certificate may be filed
with the Secretary of State at any time thereafter within six (6) months
of the date of the last acknowledgment. * * * When submitted for filing,
the Secretary of State shall accept and file the certificate and enter the date
of filing in its records. The certificate of incorporation shall be effective
as of the date on which the certificate of incorporation is filed with the
Secretary of State, and the powers specified in the certificate of incorporation
shall thereupon be vested in the corporation without further formalities.
* * *
SECTION 5. Section 77-5-215, Mississippi Code of 1972, is amended as follows:
77-5-215. A corporation * * * may
amend its certificate of incorporation to change its corporate name, to
increase or reduce the number of its directors, or to change any other
provisions therein. Notwithstanding any provisions of a corporation's
certificate * * * of incorporation to the contrary, * * * if a corporation's
certificate of incorporation provides that the period of duration of the
corporation is a limited number of years, the corporation may amend its
certificate to provide that the duration of the corporation is perpetual if
such an amendment is authorized by the board of directors of the corporation
pursuant to the affirmative vote of at least two-thirds (2/3) of the
directors. Otherwise, and not withstanding any provisions of a corporation's
certificate of incorporation to the contrary, a corporation may amend its
certificate of incorporation if (a) the amendment is authorized by the
board of directors of the corporation pursuant to the affirmative vote of at
least two-thirds (2/3) of the directors, and (b) the amendment authorized by
the board of directors is ratified by sixty percent (60%) of the corporation's
members voting, at either the corporation's annual meeting or at a meeting of
the members called for the special purpose of considering and voting on the
amendment. Written notice of any meeting at which an amendment to the
corporation's certificate * * * or articles of incorporation will be voted on by the members
must be sent to the corporation's members at least thirty (30) days prior to
the date of the meeting. The notice shall set forth the date, time, location
and purpose of the meeting, and identify and describe the purpose of the
amendment authorized by the corporation's board of directors. In the event an
amendment is fully authorized * * *
in accordance with the foregoing, a certificate reflecting the amendment to the
certificate * * * of incorporation shall be prepared and executed by the
president and by the secretary of the corporation who shall both affirm
therein, under oath, that they have been authorized by the corporation to
execute and file such certificate. Such certificate of amendment shall then be
filed by the corporation in the Office of the Secretary of State, who shall
forthwith cause this certificate to be handled in the manner prescribed in
Section 77-5-211 for original certificates of incorporation; and the
amendment of the corporation's certificate or articles of incorporation shall
be effective as of the date on which the certificate of amendment is * * * filed with the Secretary
of State, and the powers specified in the certificate of amendment shall
thereupon be vested in the corporation without further formalities.
SECTION 6. Section 77-5-217, Mississippi Code of 1972, is amended as follows:
77-5-217. Any two (2) or
more corporations * * * may enter into an
agreement for the consolidation of such corporations. Such agreement, which
may or may not require the dissolution of one or both of the corporations as
provided in Section 77-5-219, shall set forth the terms and conditions of
the consolidation, the name of the proposed consolidated corporation, the
number of its directors, who shall be not less than three (3), the time
of the * * *
initial meeting of the consolidated corporation and election of
directors, and the name of at least three (3) persons to * * * serve as directors until the * * * election of directors at the
initial meeting. * * * To be effective, any such agreement * * * must be (a) authorized by
the * * * board
of * * * directors of each corporation pursuant to the
affirmative vote of at least two-thirds (2/3) of the directors of each
corporation, and (b) ratified by sixty percent (60%) of each corporation's members
voting, at either the corporation's annual meeting or at a meeting of the
members called for the special purpose of considering and voting on the
agreement for consideration. If the agreement is so authorized and ratified,
the directors named in the agreement shall subscribe and acknowledge a
certificate conforming substantially to * * * an original * * * certificate of
incorporation, except that it shall be entitled and indorsed "certificate
of consolidation of ____" (the blank space being filled in with the names
of the corporations being consolidated) and shall state:
(a) The names of the corporations being consolidated.
(b) The name of the consolidated corporation.
(c) The other items
required or permitted to be stated in * * * a corporation's original certificate
of incorporation.
Such certificate of
consolidation * * * shall be filed with the
Secretary of State in the same * * * manner
as * * * provided in Section 77-5-211.
Upon such filing, the proposed consolidated corporation, under its
designated name, shall be and constitute a body corporate with all the powers
of a corporation as originally formed under the provisions of this article. In
addition, upon such filing, the certificates of public convenience and
necessity held by each consolidating corporation shall be deemed transferred to
the consolidated corporation, and the Mississippi Public Service Commission and
public utilities staff shall make all such changes to their records as may be
necessary to reflect such transfers.
SECTION 7. Section 77-5-219, Mississippi Code of 1972, is amended as follows:
77-5-219. * * * Upon complying with the requirements of
Section 77-5-217 or 77-5-237, a corporation * * *
may be dissolved by filing, as hereinafter provided, a certificate which shall
be entitled and indorsed "certificate of dissolution of ____" (the
blank space being filled in with the name of the corporation) and shall state:
(a) Name of the
corporation * * *.
(b) The date of filing
of the * * *
corporation's most recent certificate of incorporation.
(c) That the corporation elects to dissolve.
(d) The name and post-office address of each of its directors, and the name, title and post-office address of each of its officers.
Such certificate shall be
subscribed and acknowledged in the same manner as an original certificate of
incorporation by the * * * officers
of the corporation, who shall make and annex an affidavit stating that the
corporation has complied with the requirements of Section 77-5-217 or Section
77-5-237 and that they have been authorized to execute and file such
certificate * * *.
A certificate of dissolution
and a certified copy or copies thereof shall be filed in the same * * * place as an original certificate
of incorporation and thereupon the corporation shall be deemed to be dissolved.
Such corporation shall continue for the purpose of paying, satisfying and discharging any existing liabilities or obligations and collecting or liquidating its assets, and doing all other acts required to adjust and wind up its business and affairs, and may sue and be sued in its corporate name. Any assets remaining after all liabilities or obligations of the corporation have been satisfied or discharged shall be ratably distributed to the members thereof.
SECTION 8. Section 77-5-221, Mississippi Code of 1972, is amended as follows:
77-5-221. * * * A corporation * * *
shall have a board of directors, and the powers of the corporation shall be
vested in and exercised by such board of directors. The directors of the
corporation * * *, other than those named in * * * a certificate of incorporation, * * * shall be elected annually by
the members entitled to vote. The initial directors of the corporation,
including directors elected to succeed those * * * named in a
certificate of incorporation, shall be elected * * * as
follows: one-third (1/3) to be elected for a term of one (1) year, one-third
(1/3) for a term of two (2) years, and one-third (1/3) for a term of three (3)
years. Thereafter, all directors shall be elected for a term of three (3)
years, or for such other term(s) as may be subscribed by the corporation's
certificate of incorporation. Only members of * * * the corporation shall be entitled to
vote. The directors of a corporation must be members of the corporation * * *. In order toqualify as a candidate for director of a
corporation by petition, a candidate shall obtain not less than
fifty (50) signatures of members of the corporation * * * on
whose board such candidate wishes to serve; however, a corporation shall be
empowered, in its discretion, to adopt, through its bylaws, * * * provisions which * * * allow a person to qualify as a
candidate for director by petition by obtaining less than fifty (50) signatures
or by other less restrictive means. The directors shall be entitled to
reimbursement for expenses incurred by them in the performance of their duties.
In addition to * * * reimbursement for expenses, the board may authorize
compensation and benefits to be paid to and on behalf of such
directors for the * * *
performance of their duties, including for the time it takes for them
to travel to and from meetings and to board functions. The board shall
elect * * *
periodically from its own number * * * officers
as prescribed by the corporation's bylaws. Directors may elect to
attend the board meetings by telephone or video conference. All board
meetings, unless in executive session, shall be open to any member of a
corporation. Subject to the limitations below, any member or customer
of a corporation shall be entitled to address the board at any regular meeting
regarding any suggestions for better service, grievances or any other matter
affecting the corporation. The * * * board shall have the right
to impose reasonable limitations upon the number of members or customers
addressing any one (1) board meeting * * * and the amount of time allotted to
each presentation, and also to require members and customers to give
the board reasonable * * * notice in advance notice of their desire to address
the board * * *
so that the board may investigate and be able to respond to the presentation.
SECTION 9. Section 77-5-223, Mississippi Code of 1972, is amended as follows:
77-5-223. The board of a
corporation shall have power to do all things necessary or convenient in
conducting the business of * * * the corporation, including, but not
limited to:
(a) * * * To adopt and amend bylaws for the
management and regulation of the affairs of the corporation. The bylaws of a
corporation may make provisions, not inconsistent with law or its certificate
of incorporation, regulating the admission, withdrawal, suspension or expulsion
of members; the transfer of membership; the fees and dues of members and the
termination of memberships on nonpayment of dues or otherwise; the numbers,
times and manner of choosing, qualifications, terms of office, official
designations, powers, duties and compensation of its officers; defining a vacancy
in the board or in any office and the manner of filling it; the number of
members to constitute a quorum at meetings * * *; the date of the annual meeting
and the giving of notice thereof and the holding of special meetings and the
giving of notice thereof; the terms and conditions upon which the corporation
is to render service to its members * * *; the disposition of the revenues and
receipts of the corporation; regular and special meetings of the board and the
giving of notice thereof; and such other matters as the board may deem
appropriate or desirable.
(b) To appoint agents and employees and to fix their compensation and benefits and the compensation and benefits of the officers of the corporation.
(c) To execute all instruments or documents, or to delegate the execution thereof.
(d) To delegate to one or more of the directors or to the officers, agents and employees of a corporation such powers and duties as it may deem proper.
(e) To make its own rules and regulations as to its procedure.
(f) * * * To appoint such
committees as the board shall in its judgment see fit, which committees may
consist of members or nonmembers of either the board or the corporation.
(g) To cause the corporation to reimburse directors for expenses incurred by them in the performance of their duties and to fix compensation and benefits to be paid to and on behalf of directors for the performance of their duties.
SECTION 10. Section 77-5-225, Mississippi Code of 1972, is amended as follows:
77-5-225. Except as
hereinafter provided, the corporate purpose of * * * a corporation * * *
shall be to render service to its members only. Any person may become and
remain a member if such person shall use energy supplied by such corporation
and shall comply with the terms and conditions in respect to membership
contained in the bylaws of such corporation, which terms and conditions shall
be nondiscriminatory. Any person who shall agree to use energy supplied by the
corporation from an existing line or from a line the construction of which has
been authorized or commenced by the corporation may be admitted to membership
in the corporation prior to such use upon complying with the other terms and
conditions with respect to membership contained in the certificate of
incorporation or in the bylaws. The membership fee of the corporation shall be
fixed by the board of directors. Should the corporation acquire any electric
facilities already dedicated or devoted to the public use it may, for the
purpose of continuing existing service and avoiding hardship, continue to serve
the persons served directly from such facilities at the times of such
acquisition without requiring that such persons become members. In no event
shall the number of such nonmembers served exceed forty-nine percent (49%) of
the total number of persons served by the corporation. Such nonmember
customers shall have the right to become members upon nondiscriminatory terms. * * *
SECTION 11. Section 77-5-229, Mississippi Code of 1972, is amended as follows:
77-5-229. * * * A corporation * * * is hereby vested
with all power necessary or requisite for the accomplishment of its corporate
purpose, and no enumeration of particular powers hereby granted in this article
shall be construed to impair any general grant of power herein contained, or to
limit any such grant to a power or powers of the same class or classes as those
so enumerated.
SECTION 12. Section 77-5-231, Mississippi Code of 1972, is amended as follows:
77-5-231. (1) A
corporation * * * shall have power to do any and
all acts or things necessary or convenient for carrying out the purposes for
which it was formed, including, but not limited to:
(a) To sue and be sued.
(b) To have a seal and alter the same at pleasure.
(c) To acquire, hold and dispose of property, real and personal, tangible and intangible, or interests therein and to pay therefor in cash or property or on credit, and to secure and procure payment of all or any part of the purchase price thereof on such terms and conditions as the board shall determine.
(d) To render service and to acquire, own, operate, maintain and improve a system or systems within the state and in counties adjacent thereto.
(e) To pledge all or any part of its revenues and to mortgage or otherwise incumber all or any part of its property for the purpose of securing the payment of the principal of and interest on any of its bonds or other obligations.
(f) To use any right-of-way, easement or other similar property right necessary or convenient in connection with the acquisition, improvement, operation or maintenance of a system, granted by the state or any political subdivision thereof, provided that the governing body of such political subdivision shall consent to such use, and to have and exercise the power of eminent domain in the manner provided by the condemnation laws of this state for acquiring private property for public use, such right to be paramount except as to the property of the state or of any political subdivision thereof.
(g) To accept gifts or grants of money, property, real or personal, from any person, municipality or federal agency and to accept voluntary and uncompensated services.
(h) To make any and all contracts necessary or convenient for the full exercise of the powers in this article granted, including, but not limited to, contracts with any person, federal agency, state agency or municipality for the purchase, transfer or sale of energy and/or the acquisition of all or any part of any system, and in connection with any such contract to stipulate and agree to such covenants, terms and conditions as the board may deem appropriate, including covenants, terms and conditions with respect to the resale rates, financial and accounting methods, services, operation and maintenance practices and the manner of disposing of the revenues of the system operated and maintained by the corporation.
(i) To sell, lease, or otherwise dispose of all or any part of its property, subject however to the provisions of Section 77-5-237.
(j) To contract debts, borrow money and to issue, assume or indorse the payment of bonds or other evidences of indebtedness.
(k) To fix, maintain and collect fees, rents, tolls and other charges for services rendered.
(l) To acquire and to sell, lease, distribute and generally to deal in electrical and plumbing appliances, apparatus, machinery and equipment for the purpose of and in connection with the promotion of the sale of electric energy to its customers; to assist its customers to purchase or otherwise obtain such appliances, apparatus, machinery and equipment; to assist its customers to wire their premises and to install therein such appliances, apparatus, machinery and equipment; to acquire and to indorse, sell, pledge, hypothecate and dispose of notes, bonds and other obligations of its customers in carrying out the purposes expressed in this paragraph.
(m) To * * * maintain, in any
reasonable manner and in its discretion, its easements and rights-of-way and
adjacent property within a reasonable or necessary distance of its energy
facilities free of vegetation, trees, limbs or other impediments in order to
foster the integrity and reliability of the corporation's electric energy
system or the safety of the public or its members, agents or employees.
(n) To condemn any land, easements, or rights-of-way,
either on, under, or above the ground, as the association may deem necessary
for any purposes mentioned in this article other than the purposes described in
subsection (2) of this section, and such property or interest in such property
may be so acquired whether or not the same is owned or held for public use by
corporations, associations or persons having the power of eminent domain, or
otherwise held or used for public purposes. Such power of condemnation may be
exercised in the mode or method of procedure prescribed by Chapter 27, Title
11, Mississippi Code of 1972, or in the mode or method of procedure prescribed
by any other applicable statutory provisions now in force or hereafter enacted
for the exercise of the power of eminent domain. Where condemnation
proceedings become necessary, the judge of the circuit court or the judge of
the county court in counties where the county court exists, in which such proceedings
are filed, shall, upon application of the authority, and upon the deposit in
court, to the use of the person or persons lawfully entitled thereto, of such
amount as the judge may deem necessary to assure just compensation, order that
the right of possession shall issue immediately or as soon and upon such terms
as the judge, in his discretion, may deem just and proper. Upon application of
the parties in interest other than the corporation, the judge may order that
the money deposited in the court, or any part thereof, be paid forthwith for or
on account of the just compensation to be awarded in said proceedings.
(o) To operate across state lines.
( * * *p) To perform any and all of the
foregoing acts and to do any and all of the foregoing things under, through or
by means of its own officers, agents and employees, or by contracts with any
person, federal agency or municipality.
(2) Any generation and transmission electric corporation created under this article may undertake economic development activities, whether directly, indirectly, or in conjunction with other entities, including activities such as providing capital, or investment in or acquisition and development of business or industrial sites and the necessary infrastructure or services needed to attract new or existing businesses or industry, to create or maintain employment opportunities, or otherwise to positively impact its service territory or in some manner promote the sale of electric energy.
SECTION 13. Section 77-5-233, Mississippi Code of 1972, is amended as follows:
77-5-233. To the extent
necessary in the judgment of * * * its board to make effective the
powers conferred by this article, * * * a corporation shall continue to
have the power to acquire, construct, own, invest in,
operate, maintain, and/or improve * * * generating and/or transmission * * *
assets.
SECTION 14. Section 77-5-235, Mississippi Code of 1972, is amended as follows:
77-5-235. (1) A
corporation * * *
shall have the power to fix, adjust, charge, collect and pay reasonable
rates for electric energy and other facilities, supplies, equipment, products,
commodities, goods and services furnished by, offered by or furnished to the
corporation. All rates of a corporation formed or operating under the
provisions of this article shall be established by the corporation's board and
shall not be regulated by the Mississippi Public Service Commission. The
commission also shall not regulate nor attempt to regulate corporations formed
or operating under this article with respect to the subject matters of
standards established by the federal Public Utility Regulatory Policies Act,
including, but not limited to, those established at 16 USC Section 2621(d), and
including, but not limited to, the following matters: cost of service;
declining block, time-of-day, seasonal, and interruptible rates; load
management techniques; integrated resource planning; conservation and demand
management; energy efficiency; wholesale power purchases; net metering; fuel
sources; fossil fuel generation efficiency; time-based metering and
communications; interconnection for distributed generation; and smart grid
investments and information.
(2) A corporation's
rates for energy furnished or offered by the corporation shall be
sufficient at all times to pay all operating and maintenance expenses necessary
or desirable for the prudent conduct and operation of its business and to pay
the principal of and interest on such obligations as the corporation may have
issued and/or assumed in the performance of the purpose for which it was
formed. The revenues and receipts of a corporation shall first be devoted to
such operating and maintenance expenses and to the payment of such principal
and interest and thereafter to such reserves for improvement, new construction,
depreciation and contingencies as the board may from time to time prescribe.
Revenues and receipts not needed for these purposes shall be returned to the
members * * *
by such means as the board may decide, including through the
reimbursement of membership fees, * * * the implementation of general
rate reductions, the limitation or avoidance of future rate increases, or
such other means as the board may * * * determine.
SECTION 15. Section 77-5-239, Mississippi Code of 1972, is amended as follows:
77-5-239. A corporation * * *
shall have the power to incur obligations and liabilities, borrow money,
issue notes, bonds, certificates of indebtedness and other obligations, and to enter
into contracts of guaranty.
SECTION 16. Section 77-5-241, Mississippi Code of 1972, is amended as follows:
77-5-241. Any * * * note, bond, or other * * * indebtedness * * * issued by a corporation * * * may
bear such interest rate or rates * * * as may be determined by the board
of directors of the corporation * * *.
SECTION 17. Section 77-5-243, Mississippi Code of 1972, is amended as follows:
77-5-243. * * * A corporation shall have the power to
execute and deliver any of one or more mortgages, deeds of trust, financing
statements, or other instruments to secure debt covering, or to create by other
means a security interest in, any or all of the real or personal property
assets, rights, privileges, licenses, franchises, and permits of the
corporation or any interest therein, as well as the revenues therefrom, whether
acquired or to be acquired wherever situated, for the purpose of securing the
payment or performance of any one or more contracts, notes, bonds, or other
obligations of the corporation.
SECTION 18. Section 77-5-247, Mississippi Code of 1972, is amended as follows:
77-5-247. All * * * monies of a corporation from
whatever source derived, shall be deposited or invested in one or more
banks * * *,
trust companies, financial institutions, or such other public or private
entities as may be approved by the board of directors, and, if the
corporation shall so require, each of such accounts shall be continuously
secured by a pledge of direct obligations of the United States of America or of
the State of Mississippi having an aggregate market value, exclusive of accrued
interest, at all times at least equal to the balance on deposit in such account
or accounts, or otherwise insured by the Federal Deposit Insurance
Corporation by whatever mechanism the corporation's board may deem appropriate.
Such securities shall either be deposited with the corporation or held by a trustee or agent satisfactory to the corporation. In lieu of any such pledge or such securities, said deposits may be secured by a surety bond or bonds which shall be in form, sufficiency and substance satisfactory to the corporation.
SECTION 19. Section 77-5-249, Mississippi Code of 1972, is amended as follows:
77-5-249. * * * A corporation and * * * its property shall be * * * taxed and
assessed in accordance with the * * * laws of the * * * State
of Mississippi.
SECTION 20. Section 77-5-253, Mississippi Code of 1972, is amended as follows:
77-5-253. * * * Each corporation
created under this * * * article shall submit an annual * * * balance sheet and * * * income statement to
the Mississippi Public Service Commission * * * and Public
Utilities Staff. Such statements shall be made available to the members
of the corporation for inspection upon reasonable request.
SECTION 21. Section 77-5-255, Mississippi Code of 1972, is amended as follows:
77-5-255. (1) Subject
to the limitations herein, the Public Service Commission shall investigate,
review and * * *
mediate any dispute which qualifies as specified herein between a member
or customer and the corporation of which he is a member. The minimum amount of
a dispute which shall qualify for * * * mediation under this
section shall be: (a) One Thousand Dollars ($1,000.00) which has accumulated
over the past twelve (12) months or (b) ten percent (10%) of the cumulative
previous twelve (12) months' billing, whichever shall be the lesser.
Investigation, review and * * * arbitration mediation shall be commenced upon the
filing of a petition with the Public Service Commission by a corporation or
a member or customer of a corporation; provided, however, that the
Public Service Commission shall not commence any proceedings nor commence
any investigation * * *, review or mediation of any such dispute until it
has first been notified by both the member and the corporation of their consent
to the investigation, review and mediation. The Public Service Commission also
shall not commence any proceedings nor commence any investigation, review or
mediation pursuant to such petition if at the time of filing the petition
suit has been filed in any court of this state or of the United States with
regard to the subject matter of the dispute and in which such corporation and
member or customer are parties. Any such petition shall be immediately
dismissed if any such suit is filed after filing of the petition with the
commission.
(2) In any * * * mediation proceedings
commenced under the provisions of this section, the Public Service Commission
may, by order entered on its minutes and delivery of a certified copy thereof
to the corporation, direct the corporation and the member or customer to
provide the Public Service Commission with copies of all statements, accounts
and reports concerning * * * the * * * dispute which the Public
Service Commission may require. The Public Service Commission is further
authorized to conduct and * * * shall may conduct, or * * * request the * * * public utilities staff
to conduct, investigation * * * of and * * * informal hearings in mediation of the dispute and may
negotiate with the corporation and the member or customer for the
resolution thereof. In every * * * mediation proceeding under
this section the Public Service Commission * * * may perform only
such duties relating to the dispute as it deems reasonable and likely to
result in settlement of the dispute * * * between the
corporation and the member or customer.
(3) Participation and
continued participation in any investigation, proceeding, negotiation or * * * mediation under the
provisions of this section shall be voluntary by the corporation and the member
or customer * * *.
SECTION 22. The following shall be codified as Section 77-5-257, Mississippi Code of 1972:
77-5-257. TVA jurisdiction. It is hereby recognized that certain corporations formed or operating under this article have entered into contracts with the Tennessee Valley Authority for the purchase of wholesale electric power and that the operations, facilities, services and rates of such corporations are thereby subject to extensive regulation by the Tennessee Valley Authority. In order to avoid the inefficiencies and confusion caused by duplicative, overlapping and conflicting jurisdiction and regulations, it is hereby declared that the Mississippi Public Service Commission and political subdivisions of the state shall not have jurisdiction over and shall not regulate those portions or aspects of a corporation's operations, facilities, services, or rates that are regulated or subject to regulation by the Tennessee Valley Authority.
SECTION 23. The following shall be codified as Section 77-5-259, Mississippi Code of 1972:
77-5-259. Limitation for billing errors. In any action or regulatory proceeding arising from any overbilling or underbilling by a corporation, no collection, reimbursement, or other relief may be awarded for underbillings or overbillings occurring more than six (6) years prior to the commencement of the action or regulatory proceeding.
SECTION 24. The following shall be codified as Section 77-5-263, Mississippi Code of 1972:
77-5-263. Members; derivative proceedings. (1) "Derivative proceeding" means a civil suit in the right of the corporation. A member may not commence or maintain a derivative proceeding unless the member:
(a) Was a member of the corporation at the time of the act or omission complained of; and
(b) Fairly and adequately represents the interests of the corporation in enforcing the right of the corporation.
(2) No member may commence a derivative proceeding until:
(a) A written demand has been made by the member upon the corporation to take suitable action; and
(b) Ninety (90) days have expired from the date delivery of the demand was made unless the member has earlier been notified that the demand has been rejected by the corporation or unless irreparable injury to the corporation would result by waiting for the expiration of the ninety-day period.
(3) If the corporation commences an inquiry into the allegations made in the demand or complaint, the court may stay any derivative proceeding for such period as the court deems appropriate.
(4) (a) A derivative proceeding shall be dismissed by the court on motion by the corporation if one (1) of the groups specified in paragraph (b) or (e) of this subsection has determined in good faith, after conducting a reasonable inquiry upon which its conclusions are based, that the maintenance of the derivative proceeding is not in the best interests of the corporation.
(b) Unless a panel is appointed pursuant to paragraph (e) of this subsection, the determination in paragraph (a) of this subsection shall be made by:
(i) A majority vote of qualified directors present at a meeting of the board of directors if the qualified directors constitute a quorum; or
(ii) A majority vote of a committee consisting of two (2) or more qualified directors appointed by majority vote of qualified directors present at a meeting of the board of directors, regardless of whether such qualified directors constitute a quorum.
(c) If a derivative proceeding is commenced after a determination has been made rejecting a demand by a member, the complaint shall allege with particularity facts establishing either (i) that a majority of the board of directors did not consist of qualified directors at the time the determination was made, or (ii) that the requirements of paragraph (a) of this subsection have not been met.
(d) If a majority of the board of directors consisted of qualified directors at the time the determination was made, the plaintiff shall have the burden of proving that the requirements of paragraph (a) of this subsection have not been met; if not, the corporation shall have the burden of proving that the requirements of paragraph (a) of this subsection have been met.
(e) Upon motion by the corporation, the court may appoint a panel of one or more individuals to make a determination whether the maintenance of the derivative proceeding is in the best interests of the corporation. In such case, the plaintiff shall have the burden of proving that the requirements of paragraph (a) of this subsection have not been met.
(5) A derivative proceeding may not be discontinued or settled without the court's approval. If the court determines that a proposed discontinuance or settlement will substantially affect the interests of the corporation's members, the court shall direct that notice be given to the members affected.
(6) On termination of the derivative proceeding the court may:
(a) Order the corporation to pay the plaintiffs reasonable expenses (including attorney fees) incurred in the proceeding if it finds that the proceeding has resulted in a substantial benefit to the corporation; or
(b) Order the plaintiff to pay any defendant's reasonable expenses (including attorney fees) incurred in defending the proceeding if it finds that the proceeding was commenced or maintained without reasonable cause or for an improper purpose.
SECTION 25. The following shall be codified as Section 77-5-263, Mississippi Code of 1972:
77-5-263. Indemnity. (1) In this section:
(a) "Director" means an individual who is or was a duly elected director of a corporation organized under this article.
(b) "Expenses" includes counsel fees and other costs of litigation.
(c) "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan) or reasonable expenses incurred with respect to a proceeding.
(d) "Official capacity" means: (i) when used with respect to a director, the office of director in a corporation; or (ii) when used with respect to an individual other than a director, as contemplated in subsection (8) of this section, the office in a corporation held by the officer or the emp1oyment agency relationship undertaken by the employee or agent on behalf of the corporation. "Official capacity" does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise.
(e) "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding.
(f) "Proceeding" means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal.
(2) Except as provided in subsection (3) of this section, a corporation may indemnify an individual made a party to a proceeding because he is or was a director against liability and from expenses incurred in the proceeding if:
(a) He conducted himself in good faith; and
(b) He in good faith believed:
(i) In the case of conduct in his official capacity with the corporation that his conduct was in its best interests; and
(ii) In all other cases, that his conduct was at least not opposed to its best interests; and
(c) In the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful.
A director's conduct with respect to an employee benefit plan for a purpose he reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (2)(b)(ii) of this section.
The termination of a proceeding by judgment, order, settlement or conviction is not, of itself, determinative that the director did not meet the standard of conduct described in this section.
(3) A corporation may not indemnify a director under this section:
(a) In connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or
(b) In connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him.
Indemnification permitted under this section in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding.
(4) Unless limited by its articles of incorporation, a corporation shall indemnify a director who entirely prevails in the defense of any proceeding to which he was a party because he is or was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding.
(5) A corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if:
(a) The director furnishes the corporation a written statement of his good faith belief that he has met the standard of conduct described in subsection (2) of this section; and
(b) The director furnishes the corporation a written undertaking, executed personally or on his behalf to repay the advance if it is ultimately determined that he did not meet the standard of conduct.
The undertaking required by subsection (5)(b) of this section shall be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment.
Determinations and authorizations of payment under this section shall be made in the manner specified in subsection (7) of this section.
(6) Unless limited by a corporation's articles of incorporation or bylaws, a director of the corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or seek indemnification in another court of competent jurisdiction. The court may order indemnification if it determines:
(a) The director is entitled to mandatory indemnification under subsection (4) of this section, in which case the court shall also order the corporation to pay the director's reasonable expenses incurred to obtain court—ordered indemnification; or
(b) With respect to a proceeding by or in the right of the corporation, the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, even though he was adjudged liable, but any indemnification shall be limited to reasonable expenses incurred.
(7) A corporation may not indemnify a director under subsection (2) of this section unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because he has met the standard of conduct set forth in subsection (2) of this section.
(a) The determination shall be made:
(i) By the board of directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding;
(ii) If a quorum cannot be obtained under subparagraph (i) of this paragraph, by a majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate), consisting solely of two (2) or more directors not at the time parties to the proceeding:
(iii) By special legal counsel:
1. Selected by the board of directors or its committee in the manner prescribed in subparagraph (i) or (ii) of this paragraph; or
2. If a quorum of the board of directors cannot be obtained under subparagraph (i) of this paragraph and a committee cannot be designated under subparagraph (ii) of this paragraph selected by majority vote of the full board of directors (in which selection directors who are parties may participate); or
(iv) By the members but with the parties to the proceeding not being permitted to vote on the determination.
(b) Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection (7)(a)(iii) of this section to select counsel.
(8) Unless limited by a corporation's articles of incorporation or bylaws:
(a) An officer of the corporation is entitled to mandatory indemnification under subsection (2) of this section and is entitled to apply for court-ordered indemnification under subsection (6) of this section, in each case to the same extent as a director.
(b) The corporation may indemnify and advance expenses to an officer, employee or agent of the corporation to the same extent as to a director.
(9) A corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee or agent of the corporation, or who, while a director, officer, employee or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against liability asserted against or incurred by him in that capacity or arising from his status as a director, officer, employee or agent, whether or not the corporation would have power to indemnify him against the same liability under subsection (1) or (2) of this section.
(10) Unless the articles of incorporation or bylaws provide otherwise, any authorization of indemnification in the articles of incorporation or bylaws shall not be deemed to prevent the corporation from providing the indemnity permitted or mandated by this section.
(11) A corporation shall have power to make any further indemnity, including advance of expenses, to and to enter into contracts of indemnity with any director, officer, employee or agent that may be authorized by the articles of incorporation or any bylaws of the corporation.
SECTION 26. The following shall be codified as Section 77-5-265, Mississippi Code of 1972:
77-5-265. Standard of director's conduct. (1) A director shall discharge his duties as a director, including his duties as a member of a committee, in accordance with his good faith belief that he is acting in the best interests of the corporation.
(2) Unless he has knowledge or information concerning the matter in question that makes reliance unwarranted, a director is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by:
(a) One or more officers or employees of the corporation whom the director believes, in good faith, to be reliable and competent in the matters presented;
(b) Legal counsel, public accountants or other persons as to matters the director believes, in good faith, are within the person's professional or expert competence; or
(c) A committee of the board of directors of which he is not a member if the director believes, in good faith, that the committee merits confidence.
(3) A director is not liable for any action taken as a director, or any failure to take any action, if he performed the duties of his office in compliance with this section.
(4) A person alleging a violation of this section has the burden of proving the violation by clear and convincing evidence.
SECTION 27. The following shall be codified as Section 77-5-267, Mississippi Code of 1972:
77-5-267. Conflict of interest transaction. (1) A conflict of interest transaction is a transaction with the corporation in which a director of the corporation has a direct or indirect interest. A conflict of interest transaction is not voidable by the corporation solely because of the director's interest in the transaction if any one (1) of the following is true:
(a) The material facts of the transaction and the director's interest were disclosed or known to the board of directors or a committee of the board of directors and the board of directors or committee authorized, approved or ratified the transaction; or
(b) The transaction was fair to the corporation.
(2) For purposes of this section, a director of the corporation has an indirect interest in a transaction if (a) another entity in which he has a material financial interest or in which he is a general partner is a party to the transaction, or (b) another entity of which he is a director, officer or trustee is a party to the transaction and the transaction is or should be considered by the board of directors of the corporation.
(3) For purposes of subsection (1)(a) of this section, a conflict of interest transaction is authorized, approved or ratified if it receives the affirmative vote of a majority of the directors on the board of directors (or on the committee) who have no direct or indirect interest in the transaction, but a transaction may not be authorized, approved or ratified under this section by a single director. If a majority of the directors who have no direct or indirect interest in the transaction vote to authorize, approve or ratify the transaction, a quorum is present for the purpose of taking action under this section. The presence of, or a vote cast by, a director with a direct or indirect interest in the transaction does not affect the validity of any action taken under subsection (l)(a) of this section if the transaction is otherwise authorized, approved or ratified as provided in that subsection.
SECTION 28. The following shall be codified as Section 77-5-269, Mississippi Code of 1972:
77-5-269. Officers' actions; reliance; liability. (1) An officer with discretionary authority shall discharge his duties under that authority, in accordance with his good faith belief that he is acting in the best interests of the corporation.
(2) Unless he has knowledge or information concerning the matter in question that makes reliance unwarranted, an officer is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by:
(a) One or more officers or employees of the corporation whom the officer believes, in good faith, to be reliable and competent in the matters presented; or
(b) Legal counsel, public accountants or other persons as to matters the officer believes, in good faith, are within the person's professional or expert competence.
(3) An officer is not liable for any action taken as an officer, or any failure to take any action, if he performed the duties of his office in compliance with this section.
(4) A person alleging a violation of this section has the burden of proving the violation by clear and convincing evidence.
SECTION 29. This act shall take effect and be in force from and after July 1, 2016.