<PAGE>
File No. 70-8645
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM U-1 APPLICATION-DECLARATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
______________________________________
CENTRAL AND SOUTH WEST CORPORATION
1616 Woodall Rodgers Freeway
P.O. Box 660164
Dallas, Texas 75202
(Names of companies filing this statement and
addresses of principal executive offices)
_____________________________________
CENTRAL AND SOUTH WEST CORPORATION
(Name of top registered holding company parent)
____________________________________
Stephen J. McDonnell
Treasurer
Central and South West Corporation
1616 Woodall Rodgers Freeway
P.O. Box 660164
Dallas, Texas 75202
Joris M. Hogan
Milbank, Tweed, Hadley & McCloy
One Chase Manhattan Plaza
New York, New York 10005
(Names and addresses of agents for service)
Central and South West Corporation ("CSW"), a Delaware
Corporation and a registered holding company under the Public Utility
Holding Company Act of 1935, as amended (the "Act"), hereby files this
Amendment No. 2 to the Form U-1 Application-Declaration in File No. 70-8645
to amend Items 1, 2 and 6 and the Index of Exhibits and to restate the
Application-Declaration, as amended, in its entirety.
Item 1. Description of Proposed Transaction.
1. BACKGROUND AND SUMMARY
Central and South West Corporation ("CSW"), a Delaware
corporation, is a registered holding company under the Public Utility
Holding Company Act of 1935, as amended (the "1935 Act"). Among its
subsidiaries are Central Power and Light Company, Public Service Company of
Oklahoma, Southwestern Electric Power Company and West Texas Utilities
Company, each an electric utility company (collectively, the "Operating
Companies" and, together with CSW and each other CSW subsidiary, the
"CSW System"). CSW proposes to establish and finance a new, wholly owned,
nonutility subsidiary company, tentatively to be named EnerShop Inc.
("EnerShop"), for the purposes of providing turn-key energy solutions for
the customers of both associate and non-associate companies. EnerShop's
primary mission is to enhance and extend CSW's core electric business by
establishing an independent, credible source for non-traditional energy and
demand-side management ("DSM") solutions. EnerShop will provide a wide
range of services relating to implementation of energy-related processes,
products, equipment and technologies. These services will cover every
aspect of an energy-related project, including consulting and energy
analysis, project management, design and construction, energy efficient
equipment installation and maintenance, equipment financing and leasing,
facilities management services, environmental services and compliance, and
fuel procurement (collectively, the "EnerShop Services"). EnerShop plans
to provide these energy and demand-side management related services to
selectively chosen commercial and industrial customers who have expressed
interest and need for broader energy solutions. CSW proposes to invest in
EnerShop from time to time up to an aggregate of $100 million outstanding
at any one time. Such investments will be made in equity and debt
securities of EnerShop. The funds will be used primarily for working
capital requirements of the business, for customer equipment purchase and
leasing, for the development of a professional energy and environmental
consulting staff, and for the development of energy- and information-related
technologies.
2. PROPOSED BUSINESS ACTIVITIES
EnerShop Services will be provided initially through a
relatively small staff of management, professional, engineering, and
administrative personnel. EnerShop's ability to offer a wide range of
energy-related products and services to its customers will be facilitated
by its arrangements to obtain these capabilities from others. EnerShop
Services will be provided by a services network under the control of, but
not owned by, EnerShop. EnerShop will be responsible for originating and
maintaining customer relationships (either directly or in conjunction with
one or more of the companies in the CSW System) and for the successful
completion of projects for customers. Other companies, pursuant to primary
contracts or subcontracts, will provide design and engineering, equipment
installation and maintenance, construction management, consulting, equipment
financing and information systems services. Some of these services also may
be provided by other companies in the CSW System and by joint ventures and
partnerships to which EnerShop is a party, but only to the extent authorized
by the Securities and Exchange Commission (the "Commission") hereunder,
authorized by rules adopted by the Commission or separately authorized by
the Commission if required under the 1935 Act. EnerShop's reliance on
third-party providers of services may decline substantially as its business
matures, depending on its business experiences in its initial stages.
EnerShop Services will be offered primarily to commercial and
industrial customers. Targeted commercial customer segments initially
include: commercial building owners, lodging and healthcare facilities,
restaurants and related establishments, and food stores. Industrial
customers initially will include: companies engaged in oil and gas
production, and processing and transportation; chemical and other
processing-related companies; and companies engaged in general
manufacturing. These customer segments have been selected for initial focus
based upon the consistent expressions of strong interest in energy
management, demand-side management and energy conservation by Operating
Company customers in these segments.
Commercial customers have expressed interest in the following
areas of energy management and conservation: audits and analysis of energy
sources and uses; management of energy use; indoor and outdoor lighting;
quality of electric power; electric motor selection and use; air quality;
systems for heating, ventilation and air conditioning, including thermal
energy storage systems; electrotechnologies and back-up and primary
generation of power.
Industrial customers have expressed interest in the following
areas of energy management and conservation: audits and analysis of energy
sources and uses; indoor and outdoor lighting; electrotechnologies; electric
motor selection and use; air quality; systems for heating, ventilation and
air conditioning, including thermal energy storage systems; consultation
with respect to environmental quality requirements; and facility management
services.
EnerShop will address these energy management and conservation
needs by providing the following kinds of EnerShop Services. Any given
project may involve the provision of a variety of EnerShop Services.
(a) Consulting and Professional Services. EnerShop will
devise solutions to customers' energy issues and problems through consulting
and professional services on a customer-specific basis. The service will
typically include a detailed energy and process audit and analysis. Such
services might include research and development activities focused on the
application of existing technologies to customer situations. Such services
might also address demand-side management needs of customers and available
means of addressing such needs. EnerShop will bring industry experts and
outside consultants to assist as necessary.
The consulting and professional services will take an integrated
approach to customer needs. For example, where appropriate they will
include evaluation of the potential impact of energy conservation measures
on the use of other resources in a customer's process or facility (e.g.,
water, labor, maintenance or materials). Such an integrated approach to
providing energy management services will allow EnerShop to address all the
resources used in a process or by a facility. For example, in many
instances a customer's process or facility operations demand a trade-off
between conservation of energy and water. Since the costs of water and
sewer services are rising sharply in many areas, these costs must be taken
into account in order to minimize the customer's total costs and identify
the most economically efficient approach to a process or operation.
(b) Equipment. EnerShop will develop and maintain, directly
and through other companies, a large but responsive information base on the
different types of equipment available for use in arriving at solutions to
customers' energy use needs. Its services in this area will include
analyzing customers' specific equipment needs, compiling information as to
possible equipment solutions to those needs and recommending optimal
equipment choices.
Design, equipment selection and procurement, and equipment
installation will also be provided directly by EnerShop or indirectly
through architectural/engineering firms, equipment vendors, construction
management companies, or other specialist companies. EnerShop will act as
the customer's representative, bringing total solutions that solve energy-
related business needs.
(c) Financing. Potential EnerShop customers have expressed
a desire that the energy management and conservation services to be provided
also cover the financing of the purchase of needed equipment and the making
of other required capital expenditures. Many times the improvements to a
building or manufacturing process pay for themselves through the energy
savings they create. EnerShop may provide customer financing for the
purchase of equipment from non-associate vendors and suppliers. Customer
financing may take the form of capital leases, operating leases, tax exempt
financings, promissory notes, or performance guarantee contracts. The term
and duration of these arrangements may vary from one year to thirty years,
priced at fair market value for the particular transaction. EnerShop's
services in this area also will include analyzing customers' specific
financing needs, compiling information as to possible financing solutions,
and recommending optimal financing choices. The majority of customer
financing needs are expected to be placed with third party lenders and
leasing companies.
(d) Information. Information services to be provided by
EnerShop initially will be concentrated in the areas of customized energy
billing systems and design and installation of specialized computer software
systems needed to implement solutions to customers' energy use issues and
problems. In general, such systems will be obtained from third party
contractors and vendors.
3. FORMATION OF ENERSHOP; REQUESTED FINANCING AUTHORITY.
CSW hereby requests authority (i) to organize EnerShop as a
subsidiary of CSW under the laws of the State of Delaware, with authorized
capital stock of 1,000 shares of common stock, par value $0.10 per share
("Common Stock"), to engage in the businesses described herein; (ii) to make
an initial purchase of 100 shares of EnerShop Common Stock for an aggregate
cash purchase price of $1,000; and (iii) to make loans to EnerShop on the
terms set forth below. It is proposed that the authority requested herein
be effective in each case through the earlier of December 31, 2000 or the
effective date of rules adopted by the Commission exempting such
transactions from the approval requirements of the Act.
Loans to EnerShop under the authority requested herein would be
made by CSW and may be funded through CSW's external short-term borrowing
program, as previously authorized by order of the Commission dated March 21,
1995 (File No. 70-8557, Holding Company Act Release No. 26254). Such loans
would be made from time to time prior to December 31, 1999, with maturities
no later than December 31, 2000. Such loans would bear an interest rate not
to exceed the prime rate in effect on the date of the loan at a bank
designated by CSW (which rate may differ from CSW's cost of capital). Such
loans would be evidenced by a note of EnerShop payable to the order of CSW
in the principal amount outstanding of such loan. Such note would be
substantially in the form filed herewith as Exhibit 7, to be dated as of the
date of initial borrowing.
Investments by CSW in EnerShop would be utilized by EnerShop in
order to fund its authorized activities, including principally the working
capital needs of its consulting and other energy management services and for
payment of general and administrative costs.
EnerShop will not undertake any acquisition of an exempt
wholesale generator ("EWG") or a foreign utility company ("FUCO") as defined
in Sections 32 and 33 of the 1935 Act. Neither CSW nor any subsidiary
thereof has a direct or indirect ownership interest in an EWG or FUCO and
EnerShop will not, without obtaining the prior approval of the Commission
in a separate proceeding, render services to any associate company that is
an "exempt wholesale generator" or "foreign utility company" within the
meaning of Sections 32 and 33 of the 1935 Act, respectively. As a result,
no compliance with Rule 54 under the 1935 Act is required.
In addition to the foregoing loans and initial stock purchase,
for which authority is requested, CSW may make additional purchases of
EnerShop Common Stock from time to time pursuant to the exemption set forth
in Rule 52(d), make loans to EnerShop pursuant to the exemption set forth
in Rule 52(b), and make open-account advances and capital contributions and
conversions of loans to equity investments, through forgiveness of such
loans or otherwise, pursuant to the exemption set forth in Rule 45(b)(4).
Together with such additional exempt stock purchases, loans, open-account
advances, capital contributions, and conversions, the aggregate amount of
the loans and stock purchases for which authority is sought herein would not
exceed $100,000,000 outstanding at any one time.
4. INDEMNIFICATIONS AND GUARANTEES
CSW proposes, from time to time, to guarantee or to act as
surety on bonds, indebtedness and performance and other obligations issued
or undertaken by EnerShop in connection with its business. In the ordinary
course of its business, it is anticipated that EnerShop will be required to
furnish various types of bonds including bid bonds, performance bonds, and
material and payment bonds, and to provide commercial sureties for its
obligations under certain of such bonds. The proposed indemnification and
guarantees will facilitate EnerShop's obtaining such bonds when needed and
more favorable rates than in the absence of such indemnification and
guarantees. CSW believes that it will be necessary to provide guarantees
of EnerShop's performance and other obligations under contracts and bids
with third parties in order to facilitate EnerShop's obtaining such
contracts. CSW also believes that the absence of such parent guarantees of
EnerShop's performance and other obligations would prevent EnerShop in many
cases from participating in projects, or would make its participation more
costly, thereby diminishing EnerShop's competitiveness in the marketplace.
It is therefore proposed that CSW have the authority to provide
such guarantees and indemnifications and to make surety arrangements as to
EnerShop's performance and undertaking of obligations, in an aggregate
amount outstanding at any one time (including all commitments that could be
called) of $100,000,000, such authority to be effective through the earlier
of December 31, 2000 or the effective date of rules adopted by the
Commission exempting such guarantees, indemnifications and surety
arrangements from the approval requirements of the Act. Any such
guarantees, indemnifications or surety arrangements outstanding at December
31, 2000 shall continue until expiration or termination in accordance with
their terms, but in no event shall such guarantee, indemnification or surety
arrangement continue beyond December 31, 2002. This authority is included
in, and is not in addition to, the $100,000,000 financing authority
requested in Section 3 above.
5. AUTHORIZATION OF TRANSACTIONS WITH ASSOCIATES
EnerShop will maintain a staff of employees who will deal
primarily with management, professional, engineering and administrative
functions of EnerShop. In addition, utilizing a work order procedure, this
staff may request the Operating Companies and Central and South West
Services, Inc. ("CSW Services") to provide such personnel and other
resources as may be needed, from time to time, to consult and assist in
accounting, procurement, marketing, engineering and other required functions
in connection with EnerShop's authorized business activities. EnerShop will
not use at any time outstanding more than one percent of the total number
of the personnel of CSW Services and the Operating Companies for the
rendition of services on behalf of EnerShop. Additional required personnel
and resources not then obtainable from within the CSW System will be
obtained or hired from external sources. Selection of the CSW System
personnel to be utilized in connection with EnerShop's activities will be
based upon projected personnel availability for the duration of an activity,
expertise in the type of work involved and access to resources within the
CSW System needed to perform the work. However, any CSW System company, in
its absolute discretion, may elect not to participate, as to the provision
of either personnel or other resources, in any of EnerShop's projects.
CSW Services will provide assistance in connection with
financial, accounting, and internal auditing functions for EnerShop. The
accounts of EnerShop will be subject to audit by the independent accountants
of CSW.
The use of available expertise and personnel of the CSW System
to support EnerShop's authorized business activities will enable CSW to
optimize the efficient and economic utilization of existing human resources
and other capabilities. It will also enable associates to have the benefit
of knowledge and experience gained by EnerShop from its outside activities.
This allocation of resources will enable CSW and EnerShop to earn a profit
on, and minimize for the Operating Companies the cost of maintaining, those
resources.
CSW System companies providing services to EnerShop will be
reimbursed promptly for their costs incurred in connection therewith. CSW
System companies providing services to EnerShop customers will be
indemnified from all liabilities to such customers that may arise out of
claims of customers with respect to such services. For its part, each CSW
System company providing services for or materials to EnerShop will utilize
cost accounting procedures designed to identify promptly all direct and
indirect costs, including overheads, which are applicable to the work being
performed by or with such CSW System company personnel, material or other
assets. CSW Services will account for, allocate and charge its costs to
EnerShop, using procedures permitted under Rules 90 and 91 of the 1935 Act
and currently applicable methods of allocation. All transactions between
EnerShop and any other CSW System company will be at cost in compliance with
Section 13 of the 1935 Act and Rules 90, 91 and 92 thereunder. In addition
to being reimbursed for their costs of providing services to EnerShop, the
Operating Companies that provide successful referrals of customers to
EnerShop may be paid a commission of up to 1% of the EnerShop revenues from
those customers.
6. ACCOUNTING FOR TRANSACTIONS
Revenues from EnerShop customers (all of which will be non-
associate companies) will be calculated to reimburse all applicable costs,
including overheads, plus produce a profit for EnerShop. All of EnerShop's
costs will be identified and booked promptly. EnerShop will continue to use
portions of systems also employed by CSW Services to account for those costs
and segregate them by project and by CSW System company performing services.
EnerShop will retain such of its earnings as may remain after reimbursement
to the CSW System companies of these costs and after the payment or funding
of other costs and liabilities of EnerShop. Some portion or all of the
retained earnings of EnerShop may be paid as dividends to CSW.
7. OTHER MATTERS
The consolidated federal income tax liability of the CSW System
is allocated among the members of the consolidated group in accordance with
the provisions of subparagraph (a)(1) of Section 1552 of the Internal
Revenue Code of 1986, as amended, and the applicable requirements of Rule
45(c) of the 1935 Act, as modified by certain orders of the Commission.
EnerShop will be allocated a portion of the consolidated federal income tax
liability of the CSW System based upon those provisions.
8. REPORTING OBLIGATIONS
CSW proposes that EnerShop be subject to the reporting
requirements set forth below:
a. EnerShop will file annually a report under Rule 24 of the
Act setting forth the following information:
(i) A narrative report of activities undertaken in connection
with the EnerShop Services; and
(ii) A description of any services received by EnerShop from
CSW Services and from each of the Operating Companies.
This description will include the aggregate dollar value
of the services by company.
b. EnerShop will file the following within 45 days of the end of
each calendar quarter for the previous quarter ended --
(i) A statement of income;
(ii) A balance sheet;
(iii) A cash flow statement; and
(iv) Amounts and forms of currently effective CSW guarantees
of and similar arrangements concerning the performance
and undertaking of obligations by EnerShop.
Item 2. Fees, Commissions and Expenses.
The estimate of the approximate amount of fees, commissions and
expenses payable in connection with the transactions is as follows:
Holding Company filing fee . . . . . . . . . $ 2,000*
Counsel fees: Milbank, Tweed, Hadley &
McCloy, New York, New York . . . . . . . . $15,000
Miscellaneous and incidental expenses
including travel, telephone, postage,
copying, etc. . . . . . . . . . . . . . . . $ 1,000
Total . . . . . . . . . . . . . . . . $18,000
_________________
*Actual Amount
Item 3. Applicable Statutory Provisions.
The initial issuance and sale by EnerShop of the Common Stock
and of securities evidencing loans to be made to EnerShop is subject to
Sections 6 and 7 of the Act and the acquisition thereof by CSW is subject
to Sections 9(a) and 10. The making of open-account advances by CSW to
EnerShop with interest would be subject to Section 12(b) and Rule 45(a)
thereunder.
The making of cash capital contributions by CSW to EnerShop and
the proposed guaranty by CSW of liabilities to third parties are subject to
Section 12(b) and the exemption therefrom set forth in Rule 45 thereunder.
The possible conversion of loans from CSW to capital contributions is also
considered to be subject to Section 12(b) and the exemption therefrom set
forth in Rule 45 thereunder.
The capital contributions and loan conversions described in Item
1 hereof (insofar as such conversions are deemed to constitute capital
contributions) and open-account advances without interest would be within
the terms of Rule 45(b)(4) as amended by Commission Release No. 35-26311 and
therefore will be exempt from Commission approval requirements under Rule
45(a). Share purchases by CSW subsequent to the initial share purchase
described herein would be within the terms of Rule 52(d) as amended by
Commission Release No. 35-26311 and would therefore be exempt from
Commission approval requirements under Section 9(a).
The proposals to engage in the various different lines of
business summarized in this filing are subject to Sections 9(a) and 10 of
the Act. The rendering of services and other contemplated transactions
between EnerShop and any other CSW company is subject to Section 13(b) of
the Act and Rules 81, 87, 90, 91 and 92 thereunder. The proposed
transactions will be carried out in accordance with the procedures specified
in Rule 24 of the Act and pursuant to an order of the Commission with
respect thereto.
In February 1995, the Commission in EAU Cogenex Corporation
(Holding Company Act Release No. 35-26232, February 15, 1995) recognized
that the provision of energy management services is closely related to the
core business of electric utility companies. As in the case of Cogenex,
EnerShop will offer energy management services in order to increase the
efficient use of energy, thereby reducing the need to construct new
generating and transmission facilities, and in order to promote compliance
with environmental regulations. In addition, the Commission has proposed
for comment a rule to be designated Rule 58 that would exempt the
acquisition by a registered holding company or any subsidiary company of
securities of an "energy-related company" from the requirement of prior
Commission approval under Sections 9(a)(1) and 10 of the Act.
Item 4. Regulatory Approval.
The proposed transactions are not subject to the jurisdiction
of any state commission or of any federal commission other than the
Commission.
Item 5. Procedure.
CSW respectfully requests that the Commission issue notice of
this Application-Declaration not later than May 30, 1995 and issue an order
approving the same, and permitting this Application-Declaration to become
effective promptly following the expiration of the period set forth in such
notice.
No recommended decision by a hearing officer or other
responsible officer of the Commission is necessary or required in this
matter. The Division of Investment Management of the Commission may assist
in the preparation of the Commission's decision in this matter. There
should be no thirty-day waiting period between the issuance and the
effective date of any order issued by the Commission in this matter; and it
is respectfully requested that any such order be made effective immediately
upon the entry thereof.
Item 6. Exhibits.
Exhibit 1 - Preliminary Opinion of Milbank, Tweed, Hadley &
McCloy, counsel to the Company.
Exhibit 2 - Final or "Past Tense" opinion of Milbank, Tweed,
Hadley & McCloy, counsel to the Company (to be
filed with Certificate of Notification).
Exhibit 3 - Proposed Notice of Proceeding (previously filed).
Exhibit 4 - Financial Statements of Central and South West
Corporation and its subsidiaries per books and pro
forma as of June 30, 1995.
Exhibit 5(a) - Form of Certificate of Incorporation of EnerShop.
Exhibit 5(b) - Form of By-Laws of EnerShop.
Exhibit 6 - Draft of form of certificate representing shares of
common stock of EnerShop.
Exhibit 7 - Form of note between CSW and EnerShop.
Exhibit 8 - Financial Data Schedules.
Item 7. Information as to Environmental Effects.
The proposed transactions do not involve major federal action
having a significant effect on the human environment. To the best of the
CSW's knowledge, no federal agency has prepared or is preparing an
environmental impact statement with regard to the proposed transactions.
<PAGE>
S I G N A T U R E
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, as amended, the undersigned company has duly caused
this document to be signed on its behalf by the undersigned thereunto duly
authorized.
Dated: August 8, 1995
CENTRAL AND SOUTH WEST
CORPORATION
By /s/STEPHEN J. MCDONNELL
Stephen J. McDonnell
Treasurer
<PAGE>
INDEX OF EXHIBITS
EXHIBIT EXHIBIT TRANSMISSION
NUMBER METHOD
Exhibit 1 Preliminary Opinion of Milbank, Electronic
Tweed, Hadley & McCloy, counsel
to the Company.
Exhibit 2 Final or "Past Tense" opinion --
of Milbank, Tweed, Hadley & McCloy,
counsel to the Company (to be filed
with Certificate of Notification).
Exhibit 3 Proposed Notice of Proceeding --
(previously filed).
Exhibit 4 Financial Statements of Central and Electronic
South West Corporation and its
subsidiaries per books and pro forma
as of June 30, 1995.
Exhibit 5(a) Form of Certificate of Incorporation Electronic
of EnerShop.
Exhibit 5(b) Form of By-Laws of EnerShop. Electronic
Exhibit 6 Draft of form of certificate Electronic
representing shares of common stock of
EnerShop.
Exhibit 7 Form of note between CSW and EnerShop Electronic
Exhibit 8 Financial Data Schedules Electronic
<PAGE>
EXHIBIT 1
---------
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
August 8, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Central and South West Corporation
Application-Declaration on Form U-1
File No. 70-8645
Dear Sirs:
We refer to the Application-Declaration on Form U-1, File No.
70-8645, as amended (the "Application"), under the Public Utility Holding
Company Act of 1935, as amended (the "Act"), filed by Central and South West
Corporation ("CSW"), a Delaware corporation and a registered holding
company. The Application relates to CSW's request for authority under the
Act to establish and finance a new, wholly owned, nonutility subsidiary
company, proposed to be named EnerShop Inc. ("EnerShop"), to provide
services relating to implementation of energy-related processes, products,
equipment and technologies (collectively, the "Activities"). We have acted
as special counsel for CSW in connection with the filing of the Application
and, as such counsel, we are familiar with the corporate proceedings taken
and to be taken by CSW in connection with the Activities.
We have examined originals, or copies certified to our
satisfaction, of such corporate records of CSW, certificates of public
officials, certificates of officers and representatives of CSW and other
documents as we have deemed necessary to require as a basis for the opinions
hereinafter expressed. In such examination we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals and the conformity with the originals of all documents submitted
to us as copies. As to various questions of fact material to such opinions
we have, when relevant facts were not independently established, relied upon
certificates by officers of CSW and other appropriate persons and statements
contained in the Amendment.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that, in the
event that the Activities are engaged in in accordance with the Application,
as it may be further amended, and subject to the assumptions and conditions
set forth below:
1. All state laws applicable to the Activities will have
been complied with.
2. The Activities will not violate the legal rights of the
holders of any securities issued by CSW or any associate
company thereof.
The opinions expressed above are subject to the following
assumptions or conditions:
a. The Activities shall have been duly authorized and
approved to the extent required by state law by the Board of
Directors of CSW and EnerShop.
b. The Securities and Exchange Commission shall have
duly entered an appropriate order or orders granting and
permitting the Application to become effective.
c. The Activities shall be in accordance with any
required approvals, authorizations, consents, certificates and
orders of any state commission or regulatory authority and all
such required approvals, authorizations, consents, certificates
and orders shall have been obtained and remain in effect.
d. No act or event other than as described herein
shall have occurred subsequent to the date hereof which would
change the opinions expressed above.
e. All legal matters incident to the Activities shall
be satisfactory to us, including the receipt in satisfactory
form of opinions of other counsel qualified to practice in
jurisdictions pertaining to the Activities in which we are not
admitted to practice.
We hereby consent to the use of this opinion as an exhibit to
the Application.
Very truly yours,
/s/MILBANK, TWEED, HADLEY & MCCLOY
Milbank, Tweed, Hadley & McCloy
EXHIBIT 4
INDEX
TO
FINANCIAL STATEMENTS
Page
Number
CENTRAL AND SOUTH WEST CORPORATION AND SUBSIDIARY COMPANIES
Consolidated Balance Sheets - Per Books and Pro Forma
as of June 30, 1995 2 - 3
Consolidated Statement of Income for the Twelve Months Ended
June 30, 1995 4
Consolidated Statement of Retained Earnings for the Twelve
Months Ended June 30, 1995 5
Statements of Long-Term Debt Outstanding as of June 30, 1995 6 - 9
Statements of Preferred Stock Outstanding as of June 30, 1995 10
CENTRAL AND SOUTH WEST CORPORATION (CORPORATE)
Balance Sheets - Per Books and Pro Forma as of June 30, 1995 11
Statement of Income for the Twelve Months Ended June 30, 1995 12
ENERSHOP, INC.
Balance Sheets - Per Books and Pro Forma as of June 30, 1995 13
PRO FORMA ADJUSTMENTS TO BALANCE SHEETS 14
STATEMENT OF CHANGES 15
CAPITALIZATION RATIOS - Per books and Pro forma 16
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 17
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED BALANCE SHEETS
PER BOOKS AND PRO FORMA
AS OF JUNE 30, 1995
UNAUDITED
(Millions)
Per Pro Forma Pro
Books Adjustments Forma
ASSETS
PLANT
Electric utility
Production $5,833 $5,833
Transmission 1,409 1,409
Distribution 2,607 2,607
General 776 776
Construction work in progress 442 442
Nuclear fuel 163 163
Gas 821 821
Other diversified 37 37
------ ------
12,088 12,088
Less - Accumulated depreciation 4,053 4,053
------ ------
8,035 8,035
------ ------
CURRENT ASSETS
Cash and temporary cash investments 34 100 134
Accounts receivable 904 904
Materials and supplies, at average cost 164 164
Fuel inventory, substantially at average
cost 140 40
Gas inventory/products for resale 23 23
Accumulated deferred income taxes 20 20
Prepayments and other 44 44
------ ------ ------
1,329 100 1,429
------ ------ ------
DEFERRED CHARGES AND OTHER ASSETS
Deferred plant costs 515 515
Mirror CWIP asset - net 317 317
Other non-utility investments 335 335
Income tax related regulatory assets, net 265 265
Other 318 318
------ ------
1,750 1,750
------ ------ ------
$11,114 $100 $11,214
====== ====== ======
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED BALANCE SHEETS
PER BOOKS AND PRO FORMA
AS OF JUNE 30, 1995
UNAUDITED
(Millions)
Per Pro Forma Pro
Books Adjustments Forma
CAPITALIZATION AND LIABILITIES
CAPITALIZATION
Common Stock Equity -
Common stock, $3.50 par value, authorized
350,000,000 shares; issued and outstanding
191,700,000 shares $671 $671
Paid-in capital 586 586
Retained earnings 1,801 1,801
------ ------
Total Common Stock Equity 3,058 3,058
Preferred stock
Not subject to mandatory redemption 292 292
Subject to mandatory redemption 35 35
Long-term debt 2,954 2,954
------ ------
Total Capitalization 6,339 6,339
------ ------
CURRENT LIABILITIES
Long-term debt/preferred stock
due within twelve months 31 31
Short-term debt 846 100 946
Short-term debt - CSW Credit 748 748
Accounts payable 258 258
Accrued taxes 97 97
Accrued interest 47 47
Refund due customers 52 52
Over-recovered fuel costs 61 61
Other 129 129
------ ------ ------
2,269 100 2,369
------ ------ ------
DEFERRED CREDITS
Income taxes 2,072 2,072
Investment tax credits 313 313
Mirror CWIP liability and other 121 121
------ ------
2,506 2,506
------ ------ ------
$11,114 $100 $11,214
====== ====== ======
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF INCOME
FOR THE TWELVE MONTHS ENDED JUNE 30, 1995
UNAUDITED
(Millions)
OPERATING REVENUES $3,443
------
OPERATING EXPENSES AND TAXES
Fuel and purchased power 1,073
Gas purchased for resale 254
Gas extraction and marketing 106
Other operating 594
Maintenance 168
Depreciation and amortization 366
Taxes, other than federal income 182
Federal income taxes 95
------
2,838
------
OPERATING INCOME 605
------
OTHER INCOME AND DEDUCTIONS
Mirror CWIP liability amortization 55
Other 67
------
122
INCOME BEFORE INTEREST CHARGES 727
------
INTEREST CHARGES
Interest on long-term debt 223
Interest on short-term debt and other 96
------
319
------
NET INCOME 408
Preferred stock dividends 18
------
NET INCOME FOR COMMON STOCK $390
======
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF RETAINED EARNINGS
FOR THE TWELVE MONTHS ENDED JUNE 30, 1995
UNAUDITED
(Millions)
RETAINED EARNINGS AT June 30, 1994 $1,738
Add: Net income for common stock 390
------
2,128
Deduct: Common stock dividends 327
------
RETAINED EARNINGS AT June 30, 1995 $1,801
======
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
STATEMENT OF LONG-TERM DEBT OUTSTANDING
AS OF JUNE 30, 1995
UNAUDITED
(Millions)
CENTRAL POWER AND LIGHT COMPANY
First mortgage bonds -
Series J, 6-5/8%, due January 1, 1998 $28
Series L, 7%, due February 1, 2001 36
Series T, 7-1/2%, due December 15, 2014 112
Series U, 9-3/4%, due July 1, 2015 32
Series Z, 9-3/8%, due December 1, 2019 139
Series AA, 7-1/2%, due March 1, 2020 50
Series BB, 6%, due October 1, 1997 200
Series CC, 7-1/4%, due October 1, 2004 100
Series DD, 7-1/8%, due December 1, 1999 25
Series EE, 7-1/2%, due December 1, 2002 115
Series FF, 6-7/8%, due February 1, 2003 50
Series GG, 7-1/8%, due February 1, 2008 75
Series HH, 6%, due April 1, 2000 100
Series II, 7-1/2%, due April 1, 2023 100
Series JJ, 7-1/2%, due May 1, 1999 100
Installment sales agreements -
Pollution control bonds
Series 1974 7-1/8%, due June 1, 2004 9
Series 1977 6%, due November 1, 2007 34
Series 1984 7-7/8%, due September 15, 2014 6
Series 1984 10-1/8%, due October 15, 2014 69
Series 1986 7-7/8%, due December 1, 2016 60
Series 1993 6%, due July 1, 2028 120
Note payable, 6.5% due 1995 (11)
Unamortized discount (79)
Unamortized costs of reacquired debt (1)
Amount to be redeemed within one year ------
$1,469
------
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
STATEMENT OF LONG-TERM DEBT OUTSTANDING (Continued)
AS OF JUNE 30, 1995
UNAUDITED
(Millions)
PUBLIC SERVICE COMPANY OF OKLAHOMA
First mortgage bonds -
Series J, 5-1/4%, due March 1, 1996 $25
Series K, 7-1/4%, due January 1, 1999 25
Series L, 7-3/8%, due March 1, 2002 30
Series S, 7-1/4%, due July 1, 2003 65
Series T, 7-3/8%, due December 1, 2004 50
Series U, 6-1/4%, due April 1, 2003 35
Series V, 7-3/8%, due April 1, 2023 100
Series W, 6-1/2%, due June 1, 2005 50
Installment sales agreements -
Pollution control bonds
Series A, 5.9%, due December 1, 2007 35
Series 1984 7-7/8, due December 15, 2014 12
Unamortized discount (5)
Unamortized costs of reacquired debt (19)
Amount to be redeemed within one year (25)
------
$378
------
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
STATEMENT OF LONG-TERM DEBT OUTSTANDING (Continued)
AS OF JUNE 30, 1995
UNAUDITED
(Millions)
SOUTHWESTERN ELECTRIC POWER COMPANY
First mortgage bonds -
Series V, 7-3/4%, due June 1, 2004 $40
Series W, 6-1/8%, due December 1, 1999 40
Series X, 7%, due September 1, 2007 90
Series Y, 6-5/8%, due February 1, 2003 55
Series Z, 7-1/4%, due July 1, 2023 45
Series AA, 5-1/4%, due April 1, 2000 45
Series BB, 6-7/8%, due October 1, 2025 80
1976 Series A, 6.2%, due November 1, 2006 7
1976 Series B, 6.2%, due November 1, 2006 1
Installment sales agreements -
Pollution control bonds
1978 Series A, 6%, due January 1, 2008 14
Series 1986, 8.2%, due July 1, 2014 82
1991 Series A, 8.2%, due August 1, 2011 17
1991 Series B, 6.9%, due November 1, 2004 12
Series 1992, 7.6%, due January 1, 2019 54
Bank loan, variable rate, due June 15, 2000 50
Railcar lease obligations 18
Unamortized discount and premium (4)
Unamortized costs of reacquired debt (45)
Amount to be redeemed within one year (5)
------
$596
------
WEST TEXAS UTILITIES COMPANY
First mortgage bonds -
Series 0, 9-1/4%, due December 1, 2019 $55
Series P, 7-3/4%, due July 1, 2007 25
Series Q, 6-7/8%, due October 1, 2002 35
Series R, 7%, due October 1, 2004 40
Series S, 6-1/8%, due February 1, 2004 40
Series T, 7-1/2%, due April 1, 2000 40
Installment sales agreement -
Pollution control bonds
Series 1984, 7-7/8%, due September 15, 2014 44
Unamortized discount and premium (1)
Unamortized costs of reacquired debt (26)
Amount to be redeemed within one year (1)
------
$251
------
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
STATEMENT OF LONG-TERM DEBT OUTSTANDING (Continued)
AS OF JUNE 30, 1995
UNAUDITED
(millions)
TRANSOK, INC.
Note payable, 8.960%, due April 17, 2017 $15
Note payable, 8.280%, due April 16, 2007 3
Note payable, 8.130%, due April 16, 2002 3
Note payable, 8.125%, due April 22, 2002 17
Note payable, 8.900%, due May 21, 2012 5
Note payable, 7.810%, due May 20, 1999 3
Note payable, 8.250%, due May 20, 2004 1
Note payable, 8.170%, due May 22, 2003 2
Note payable, 7.750%, due May 21, 1999 5
Note payable, 8.170%, due May 28, 2004 2
Note payable, 8.280%, due June 3, 2003 4
Note payable, 8.340%, due June 2, 2004 2
Note payable, 8.350%, due August 27, 2012 5
Note payable, 7.350%, due August 26, 2002 5
Note payable, 7.330%, due August 26, 2002 1
Note payable, 7.320%, due August 28, 2002 14
Note payable, 6.750%, due December 1, 1999 15
Note payable, 7.800%, due March 1, 2004 10
Note payable, 7.770%, due March 1, 2004 3
Note payable, 7.780%, due December 15, 2004 2
Note payable, 7.730%, due December 15, 2004 1
Note payable, 7.670%, due March 1, 2004 1
Note payable, 7.650%, due May 15, 2002 5
Note payable, 7.650%, due May 15, 2002 5
Note payable, 7.650%, due December 23, 2003 11
Note payable, 6.850%, due March 18, 2005 1
Note payable, 6.850%, due March 18, 2005 1
Note payable, 6.900%, due March 1, 2005 6
Note payable, 6.990%, due March 24, 2005 5
Note payable, 6.860%, due March 28, 2005 12
Note payable, 7.750%, due April 24, 2023 10
Note payable, 6.840%, due April 25, 2005 3
Note payable, 7.750%, due April 26, 2023 5
Note payable, 6.810%, due April 26, 2003 7
Note payable, 6.600%, due April 29, 2003 2
Note payable, 6.710%, due April 30, 2004 1
Note payable, 6.930%, due May 5, 2005 1
Note payable, 7.070%, due May 5, 2008 1
Note payable, 7.000%, due January 12, 2004 5
------
$200
CENTRAL AND SOUTH WEST SERVICES, INC. ------
Term loan facility, Variable rate, due
December 1, 2001 60
------
$60
------
TOTAL CONSOLIDATED $2,954
======
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
STATEMENT OF PREFERRED STOCK OUTSTANDING
AS OF JUNE 30, 1995
UNAUDITED
(Millions)
NOT SUBJECT TO MANDATORY REDEMPTION
CENTRAL POWER AND LIGHT COMPANY
4.00% Series, 100,000 shares $10
4.20% Series, 75,000 shares 8
7.12% Series, 260,000 shares 26
8.72% Series, 500,000 shares 50
Auction Money Market, 750,000 shares 75
Auction Series A, 425,000 shares 42
Auction Series B, 425,000 shares 42
Issuance expense (3)
------
$250
------
PUBLIC SERVICE COMPANY OF OKLAHOMA
4.00% Series, 97,900 shares $10
4.24% Series, 100,000 shares 10
------
$20
------
SOUTHWESTERN ELECTRIC POWER COMPANY
5.00% Series, 75,000 shares $8
4.65% Series, 25,000 shares 2
4.28% Series, 60,000 shares 6
------
$16
------
WEST TEXAS UTILITIES COMPANY
4.40% Series, 60,000 shares 6
------
Total Consolidated $292
======
SUBJECT TO MANDATORY REDEMPTION
SOUTHWESTERN ELECTRIC POWER COMPANY
6.95% Series, 364,000 shares $36
Amount to be redeemed within one year (1)
------
Total Consolidated $35
======
CENTRAL AND SOUTH WEST CORPORATION
BALANCE SHEETS
PER BOOKS AND PRO FORMA
AS OF JUNE 30, 1995
UNAUDITED
(Millions)
Per Pro Forma Pro
Books Adjustments Forma
INVESTMENTS IN COMMON STOCK
OF SUBSIDIARY
COMPANIES (at equity) $3,358 $3,358
------ ------
CURRENT ASSETS
Cash and temporary cash investments 4 4
Advances to affiliates 337 100 437
Prepayments and other 207 207
------ ------ ------
548 100 648
------ ------ ------
DEFERRED CHARGES AND OTHER ASSETS 49 49
------ ------ ------
$3,955 $100 $4,055
====== ====== ======
COMMON STOCK EQUITY
Common stock, $3.50 par value,
authorized 350,000,000 shares;
issued and outstanding
191,700,000 shares $671 $671
Paid-in capital 586 586
Retained earnings 1,801 1,801
------ ------
3,058 3,058
------ ------
CURRENT LIABILITIES
Short-term debt 846 100 946
Accounts payable and other 17 17
------ ------ ------
863 100 963
------ ------ ------
DEFERRED CREDITS 34 34
------ ------ ------
$3,955 $100 $4,055
====== ====== ======
CENTRAL AND SOUTH WEST CORPORATION
STATEMENT OF INCOME
FOR THE TWELVE MONTHS ENDED JUNE 30, 1995
UNAUDITED
(Millions)
INCOME
Equity in earnings of subsidiaries
Central Power and Light Company $196
Public Service Company of Oklahoma 75
Southwestern Electric Power Company 116
West Texas Utilities Company 38
Transok, Inc. 23
CSW Credit, Inc. 8
CSW Energy, Inc. 8
CSW Leasing, Inc. 0
CSW International, Inc. (2)
CSW Communications, Inc. 0
Central and South West Services, Inc. 0
Other Income 37
------
$499
------
EXPENSES AND TAXES
General and administrative expenses 71
Interest expense 47
Federal income taxes (12)
Other 3
------
109
------
NET INCOME $390
======
ENERSHOP, INC.
BALANCE SHEETS
PER BOOKS AND PRO FORMA
AS OF JUNE 30, 1995
UNAUDITED
(Millions)
Per Pro Forma Pro
Books Adjustments Forma
ASSETS
CURRENT ASSETS
Cash and temporary cash investments 0 100 100
---- ------ ------
0 100 100
==== ====== ======
CAPITALIZATION AND LIABILITIES
CAPITALIZATION
Common stock, $.10 par value; authorized
1,000 shares; issued and outstanding
100 shares $0 $0
Paid-in capital 0 0
------ ------
Total common stock equity 0 0
------ ------
CURRENT LIABILITIES
Advances from affiliates 0 100 100
------ ------ ------
$0 $100 $100
====== ====== ======
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
PRO FORMA ADJUSTMENTS TO BALANCE SHEETS
AS OF JUNE 30, 1995
UNAUDITED
DR CR
Central and South West Corporation and
Subsidiary Companies
Cash 100,000,000
Short-term debt 100,000,000
Record short-term debt issuance - establishment
of Enershop, Inc.
Central and South West Corporation
Investment in Enershop Common Stock 1,000
Cash 1,000
Record investment in Enershop
Advances to affiliates 99,999,000
Cash 99,999,000
Record advances to Enershop, Inc.
Cash 100,000,000
Short-term debt 100,000,000
Record short-term debt issuance - establishment
of Enershop, Inc.
Enershop, Inc.
Cash 1,000
Common Stock 10
Paid in Capital 990
Record CSW Corp's investment in Enershop Common Stock
Cash 99,999,000
Advances from affiliates 99,999,000
Record advances from CSW
Assumes CSW will use short-term debt to fund
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
There have been no significant changes in the financial statements of
Central and South West Corporation and subsidiary companies subsequent to
June 30, 1995, other than in the ordinary course of business.
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
CAPITALIZATION RATIOS
PER BOOKS AND PRO FORMA
AS OF JUNE 30, 1995
Common Stock Preferred Long-term
Equity Stock Debt(*)
--------- --------- ---------
Central and South West
Corporation and
Subsidiary Companies
(Consolidated) Per books 48.2% 5.2% 46.6%
Central and South West
Corporation and
Subsidiary Companies
(Consolidated) Pro forma 48.2% 5.2% 46.6%
Central and South West
Corporation Per books 100.0% 0.0% 0.0%
Central and South West
Corporation Pro forma 100.0% 0.0% 0.0%
Enershop, Inc.
Per books 100.0% 0.0% 0.0%
Enershop, Inc.
Pro forma 100.0% 0.0% 0.0%
(*) Includes Transok's Medium-Term Notes Payable
CENTRAL AND SOUTH WEST CORPORATION
AND SUBSIDIARY COMPANIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The notes to consolidated financial statements included in Central and
South West Corporation's 1994 Annual Report on Form 10-K are hereby
incorporated by reference and made a part of this report.
Page
Reference
1994 Annual Report on Form 10-K pages 2-31 through 2-66
Exhibit 5(a)
FORM OF
CERTIFICATE OF INCORPORATION
OF
ENERSHOP INC.
I, the undersigned natural person acting as an incorporator of a
corporation (hereinafter, the "Corporation") under the General
Corporation Law of the State of Delaware, do hereby adopt the following
Certificate of Incorporation for the Corporation:
FIRST: The name of the Corporation is EnerShop Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of the registered
agent of the Corporation at such address is The Corporation Trust
Company.
THIRD: The purpose for which the Corporation is organized is to
engage in any and all lawful acts and activity for which corporations may
be organized under the General Corporation Law of Delaware. The
Corporation will have perpetual existence.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is one thousand (1,000) shares, par value
$0.10 per share, designated Common Stock.
FIFTH: The name of the incorporator of the Corporation is Jeffrey
B. Hitt, and the mailing address of such incorporator is 1616 Woodall
Rodgers Freeway, P.O. Box 660164, Dallas, Texas 75266-0164.
SIXTH: Directors of the Corporation need not be elected by written
ballot unless the by-laws of the Corporation otherwise provide.
SEVENTH: The directors of the Corporation shall have the power to
adopt, amend, and repeal the by-laws of the Corporation.
EIGHTH: Whenever a compromise or an arrangement is proposed
between the Corporation and its creditors or any class of them and/or
between the Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on
application in a summary way of the Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for the Corporation under the provisions of Section 291 of the
Delaware General Corporation Law, order a meeting of the creditors or
class of creditors, and/or the stockholders or class of stockholders of
the Corporation as the said court directs. If a majority in number
representing three fourths in value of the creditors or class of
creditors, and/or the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of the Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
NINTH: No contract or transaction between the Corporation and
one or more of its directors, officers, or stockholders or between the
Corporation and any person (as used herein "person" means other
corporation, partnership, association, firm, trust, joint venture,
political subdivision, or instrumentality) or other organization in which
one or more of its directors, officers, or stockholders are directors,
officers, or stockholders, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the board or
committee which authorizes the contract or transaction, or solely because
his, her, or their votes are counted for such purpose, if: (i) the mate-
rial facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the board of
directors or the committee, and the board of directors or committee in
good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts
as to his or her relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transac-
tion is fair as to the Corporation as of the time it is authorized,
approved, or ratified by the board of directors, a committee thereof, or
the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes the contract or transaction.
TENTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
Any repeal or amendment of this Article TENTH by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation
arising from an act or omission occurring prior to the time of such
repeal or amendment. In addition to the circumstances in which a
director of the Corporation is not personally liable as set forth in the
foregoing provisions of this Article TENTH, a director shall not be
liable to the Corporation or its stockholders to such further extent as
permitted by any law hereafter enacted, including without limitation any
subsequent amendment to the Delaware General Corporation Law.
ELEVENTH: The Corporation expressly elects not to be governed by
Section 203 of the General Corporation Law of Delaware.
I, the undersigned, for the purpose of forming the Corporation
under the laws of the State of Delaware, do make, file, and record this
Certificate of Incorporation and do certify that this is my act and deed
and that the facts stated herein are true and, accordingly, I do hereunto
set my hand on this ____ day of ______________, 1995.
_______________________________
Jeffrey B. Hitt, Incorporator
Exhibit 5(b)
FORM OF
BY-LAWS
OF
ENERSHOP INC.
A Delaware Corporation
PREAMBLE
These by-laws are subject to, and governed by, the General
Corporation Law of the State of Delaware (the "Delaware General
Corporation Law") and the certificate of incorporation of EnerShop Inc.,
a Delaware corporation (the "Corporation"). In the event of a direct
conflict between the provisions of these by-laws and the mandatory
provisions of the Delaware General Corporation Law or the provisions of
the certificate of incorporation of the Corporation, such provisions of
the Delaware General Corporation Law or the certificate of incorporation
of the Corporation, as the case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and
registered agent of the Corporation shall be as designated from time to
time by the appropriate filing by the Corporation in the office of the
Secretary of State of the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the board
of directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such
time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting or in a duly executed waiver of
notice of such meeting. At such meeting, the stockholders shall elect
directors and transact such other business as may properly be brought
before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may
be called at any time by the Chairman of the Board or the President or
any Vice President and shall be called by the Chairman of the Board,
President or the Secretary when directed to do so by resolution of the
board of directors or at the request in writing of directors representing
a majority of the whole board of directors. Any special meeting shall be
held on such date and at such time as shall be designated by the
person(s) calling the meeting and stated in the notice of the meeting or
in a duly executed waiver of notice of such meeting. Only such business
shall be transacted at a special meeting as may be stated or indicated in
the notice of such meeting or in a duly executed waiver of notice of such
meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be
held at any place within or without the State of Delaware designated by
the board of directors. A special meeting of stockholders may be held at
any place within or without the State of Delaware designated in the
<PAGE>
notice of the meeting or a duly executed waiver of notice of such
meeting. Meetings of stockholders shall be held at the principal office
of the Corporation unless another place is designated for meetings in the
manner provided herein.
2.4 Notice. Written or printed notice stating the place, day,
and time of each meeting of the stockholders and, in case of a special
meeting, the purpose or purposes for which the meeting is called shall be
delivered not less than ten nor more than 60 days before the date of the
meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, the President, the Secretary, or the officer or
person(s) calling the meeting, to each stockholder of record entitled to
vote at such meeting. If such notice is to be sent by mail, it shall be
directed to such stockholder at his address as it appears on the records
of the Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address.
Notice of any meeting of stockholders shall not be required to be given
to any stockholder who shall attend such meeting in person or by proxy
and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a
signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has
charge of the Corporation's stock ledger, either directly or through
another officer appointed by him or through a transfer agent appointed by
the board of directors, shall prepare a complete list of stockholders
entitled to vote thereat, arranged in alphabetical order and showing the
address of each stockholder and number of shares registered in the name
of each stockholder. For a period of ten days prior to such meeting,
such list shall be kept on file at a place within the city where the
meeting is to be held, which place shall be specified in the notice of
meeting or a duly executed waiver of notice of such meeting or, if not so
specified, at the place where the meeting is to be held and shall be open
to examination by any stockholder during ordinary business hours. Such
list shall be produced at such meeting and kept at the meeting at all
times during such meeting and may be inspected by any stockholder who is
present.
2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall
constitute a quorum at any meeting of stockholders, except as otherwise
provided by law, the certificate of incorporation of the Corporation, or
these by-laws. If a quorum shall not be present, in person or by proxy,
at any meeting of stockholders, the stockholders entitled to vote thereat
who are present, in person or by proxy, or, if no stockholder entitled to
vote is present, any officer of the Corporation may adjourn the meeting
from time to time, without notice other than announcement at the meeting
(unless the board of directors, after such adjournment, fixes a new
record date for the adjourned meeting), until a quorum shall be present,
in person or by proxy. At any adjourned meeting at which a quorum shall
be present, in person or by proxy, any business may be transacted which
may have been transacted at the original meeting had a quorum been
present; provided that, if the adjournment is for more than 30 days or if
after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is
present at any meeting, the vote of the holders of at least a majority of
the outstanding shares entitled to vote who are present, in person or by
proxy, shall decide any question brought before such meeting, unless the
question is one on which, by express provision of statute, the
certificate of incorporation of the Corporation, or these by-laws, a
different vote is required, in which case such express provision shall
govern and control the decision of such question. The stockholders
present at a duly constituted meeting may continue to transact business
until adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in
the certificate of incorporation of the Corporation or by law, each
outstanding share, regardless of class, shall be entitled to one vote on
each matter submitted to a vote at a meeting of stockholders. Elections
of directors need not be by written ballot. At any meeting of
stockholders, every stockholder having the right to vote may vote either
in person or by a proxy executed in writing by the stockholder or by his
duly authorized attorney-in-fact. Each such proxy shall be filed with
the Secretary of the Corporation before or at the time of the meeting.
No proxy shall be valid after three years from the date of its execution,
unless otherwise provided in the proxy. If no date is stated in a proxy,
such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise
made irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion, or exchange of stock or
for the purpose of any other lawful action, the board of directors may
fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the board of
directors, for any such determination of stockholders, such date in any
case to be not more than 60 days and not less than ten days prior to such
meeting nor more than 60 days prior to any other action. If no record
date is fixed:
(i) The record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which
the board of directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the board
of directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted by the board of directors, and which date shall not be more than
ten days after the date upon which the resolution fixing the record date
is adopted by the board of directors. If no record date has been fixed
by the board of directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting,
when no prior action by the board of directors is required by law or
these by-laws, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the Corporation's
registered office in the State of Delaware, principal place of business,
or such officer or agent shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the
board of directors and prior action by the board of directors is required
by law or these by-laws, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting
shall be at the close of business on the day on which the board of
directors adopts the resolution taking such prior action.
2.10 Conduct of Meeting. The Chairman of the Board, if such
office has been filled, and, if not or if the Chairman of the Board is
absent or otherwise unable to act, the President shall preside at all
meetings of stockholders. The Secretary shall keep the records of each
meeting of stockholders. In the absence or inability to act of any such
officer, such officer's duties shall be performed by the officer given
the authority to act for such absent or non-acting officer under these
by-laws or by some person appointed by the meeting.
2.11 Inspectors. The board of directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so
appointed shall fail to appear or act, the chairman of the meeting shall,
or if inspectors shall not have been appointed, the chairman of the
meeting may, appoint one or more inspectors. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity
and effect of proxies and shall receive votes, ballots, or consents, hear
and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots, or consents,
determine the results, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the
chairman of the meeting, the inspectors shall make a report in writing of
any challenge, request, or matter determined by them and shall execute a
certificate of any fact found by them. No director or candidate for the
office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation
shall be managed by the board of directors. Subject to the restrictions
imposed by law, the certificate of incorporation of the Corporation, or
these by-laws, the board of directors may exercise all the powers of the
Corporation.
3.2 Number; Qualification; Election; Term. The number of
directors which shall constitute the entire board of directors shall be
not less than one. The first board of directors shall consist of the
number of directors named in the certificate of incorporation of the
Corporation or, if no directors are so named, shall consist of the number
of directors elected by the incorporator(s) at an organizational meeting
or by unanimous written consent in lieu thereof. Thereafter, within the
limits above specified, the number of directors which shall constitute
the entire board of directors shall be determined by resolution of the
board of directors or by resolution of the stockholders at the annual
meeting thereof or at a special meeting thereof called for that purpose.
Except as otherwise required by law, the certificate of incorporation of
the Corporation, or these by-laws, the directors shall be elected at an
annual meeting of stockholders at which a quorum is present. Directors
shall be elected by a plurality of the votes of the shares present in
person or represented by proxy and entitled to vote on the election of
directors. Each director so chosen shall hold office until the first
annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death,
resignation, or removal from office. None of the directors need be a
stockholder of the Corporation or a resident of the State of Delaware.
Each director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of
shortening the term of any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these by-laws, at any meeting of
stockholders called expressly for that purpose, any director or the
entire board of directors may be removed, with or without cause, by a
vote of the holders of a majority of the shares then entitled to vote on
the election of directors; provided, however, that so long as
stockholders have the right to cumulate votes in the election of
directors pursuant to the certificate of incorporation of the
Corporation, if less than the entire board of directors is to be removed,
no one of the directors may be removed if the votes cast against his
removal would be sufficient to elect him if then cumulatively voted at an
election of the entire board of directors.
3.5 Vacancies. Vacancies and newly-created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a
quorum, or by the sole remaining director, and each director so chosen
shall hold office until the first annual meeting of stockholders held
after his election and until his successor is elected and qualified or,
if earlier, until his death, resignation, or removal from office. If
there are no directors in office, an election of directors may be held in
the manner provided by statute. If, at the time of filling any vacancy
or any newly-created directorship, the directors then in office shall
constitute less than a majority of the whole board of directors (as
constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding
at least 10% of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election
to be held to fill any such vacancies or newly-created directorships or
to replace the directors chosen by the directors then in office. Except
as otherwise provided in these by-laws, when one or more directors shall
resign from the board of directors, effective at a future date, a
majority of the directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall
become effective, and each director so chosen shall hold office as
provided in these by-laws with respect to the filling of other vacancies.
3.6 Meetings of Directors. The directors may hold their meetings
and may have an office and keep the books of the Corporation, except as
otherwise provided by statute, in such place or places within or without
the State of Delaware as the board of directors may from time to time
determine or as shall be specified in the notice of such meeting or duly
executed waiver of notice of such meeting.
3.7 First Meeting. Each newly elected board of directors may
hold its first meeting for the purpose of organization and the
transaction of business, if a quorum is present, immediately after and at
the same place as the annual meeting of stockholders, and no notice of
such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum
shall be present, the board of directors shall elect the officers of the
Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors
shall be held at such times and places as shall be designated from time
to time by resolution of the board of directors. Notice of such regular
meetings shall not be required.
3.10 Special Meetings. Special meetings of the board of directors
shall be held whenever called by the Chairman of the Board, the
President, or any director.
3.11 Notice. The Secretary shall give notice of each special
meeting to each director at least 24 hours before the meeting. Notice of
any such meeting need not be given to any director who shall, either
before or after the meeting, submit a signed waiver of notice or who
shall attend such meeting without protesting, prior to or at its
commencement, the lack of notice to him. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
board of directors need be specified in the notice or waiver of notice of
such meeting.
3.12 Quorum; Majority Vote. At all meetings of the board of
directors, a majority of the directors fixed in the manner provided in
these by-laws shall constitute a quorum for the transaction of business.
If at any meeting of the board of directors there be less than a quorum
present, a majority of those present or any director solely present may
adjourn the meeting from time to time without further notice. Unless the
act of a greater number is required by law, the certificate of
incorporation of the Corporation, or these by-laws, the act of a majority
of the directors present at a meeting at which a quorum is in attendance
shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors
elected by the holders of a class or series of stock shall have more or
less than one vote per director on any matter, every reference in these
by-laws to a majority or other proportion of directors shall refer to a
majority or other proportion of the votes of such directors.
3.13 Procedure. At meetings of the board of directors, business
shall be transacted in such order as from time to time the board of
directors may determine. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or
otherwise unable to act, the President shall preside at all meetings of
the board of directors. In the absence or inability to act of either
such officer, a chairman shall be chosen by the board of directors from
among the directors present. The Secretary of the Corporation shall act
as the secretary of each meeting of the board of directors unless the
board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its
proceedings which shall be placed in the minute book of the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is
present at the meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the
action unless his dissent shall be entered in the minutes of the meeting
or unless he shall file his written dissent to such action with the
person acting as secretary of the meeting before the adjournment thereof
or shall forward any dissent by certified or registered mail to the
Secretary of the Corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted
in favor of such action.
3.15 Compensation. The board of directors shall have the
authority to fix the compensation, including fees and reimbursement of
expenses, paid to directors for attendance at regular or special meetings
of the board of directors or any committee thereof; provided, that
nothing contained herein shall be construed to preclude any director from
serving the Corporation in any other capacity or receiving compensation
therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution
adopted by a majority of the entire board of directors, designate one or
more committees.
4.2 Number; Qualification; Term. Each committee shall consist of
one or more directors appointed by resolution adopted by a majority of
the entire board of directors. The number of committee members may be
increased or decreased from time to time by resolution adopted by a
majority of the entire board of directors. Each committee member shall
serve as such until the earliest of (i) the expiration of his term as
director, (ii) his resignation as a committee member or as a director, or
(iii) his removal as a committee member or as a director.
4.3 Authority. Each committee, to the extent expressly provided
in the resolution establishing such committee, shall have and may
exercise all of the authority of the board of directors in the management
of the business and property of the Corporation except to the extent
expressly restricted by law, the certificate of incorporation of the
Corporation, or these by-laws.
4.4 Committee Changes. The board of directors shall have the
power at any time to fill vacancies in, to change the membership of, and
to discharge any committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee.
Any such alternate member may replace any absent or disqualified member
at any meeting of the committee. If no alternate committee members have
been so appointed to a committee or each such alternate committee member
is absent or disqualified, the member or members of such committee
present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of any such
absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be
held without notice at such time and place as may be designated from time
to time by the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be
held whenever called by any committee member. The committee member
calling any special meeting shall cause notice of such special meeting,
including therein the time and place of such special meeting, to be given
to each committee member at least two days before such special meeting.
Neither the business to be transacted at, nor the purpose of, any special
meeting of any committee need be specified in the notice or waiver of
notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a
majority of the number of members designated by the board of directors
shall constitute a quorum for the transaction of business. If a quorum
is not present at a meeting of any committee, a majority of the members
present may adjourn the meeting from time to time, without notice other
than an announcement at the meeting, until a quorum is present. The act
of a majority of the members present at any meeting at which a quorum is
in attendance shall be the act of a committee, unless the act of a
greater number is required by law, the certificate of incorporation of
the Corporation, or these by-laws.
4.9 Minutes. Each committee shall cause minutes of its
proceedings to be prepared and shall report the same to the board of
directors upon the request of the board of directors. The minutes of the
proceedings of each committee shall be delivered to the Secretary of the
Corporation for placement in the minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the
board of directors, be allowed a fixed sum and expenses of attendance, if
any, for attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such
director by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of
incorporation of the Corporation, or these by-laws, notice is required to
be given to any committee member, director, or stockholder and no
provision is made as to how such notice shall be given, personal notice
shall not be required and any such notice may be given (a) in writing, by
mail, postage prepaid, addressed to such committee member, director, or
stockholder at his address as it appears on the books or (in the case of
a stockholder) the stock transfer records of the Corporation, or (b) by
any other method permitted by law (including but not limited to overnight
courier service, telegram, telex, or telefax). Any notice required or
permitted to be given by mail shall be deemed to be delivered and given
at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight
courier service shall be deemed to be delivered and given at the time
delivered to such service with all charges prepaid and addressed as
aforesaid. Any notice required or permitted to be given by telegram,
telex, or telefax shall be deemed to be delivered and given at the time
transmitted with all charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute,
the certificate of incorporation of the Corporation, or these by-laws, a
waiver thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance of a stockholder,
director, or committee member at a meeting shall constitute a waiver of
notice of such meeting, except where such person attends for the express
purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the
Corporation shall be a President, a Secretary, and such other officers as
the board of directors may from time to time elect or appoint, including
a Chairman of the Board, one or more Vice Presidents (with each Vice
President to have such descriptive title, if any, as the board of
directors shall determine), and a Treasurer. Each officer shall hold
office until his successor shall have been duly elected and shall have
qualified, until his death, or until he shall resign or shall have been
removed in the manner hereinafter provided. Any two or more offices may
be held by the same person. None of the officers need be a stockholder
or a director of the Corporation or a resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever in
its judgment the best interest of the Corporation will be served thereby,
but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer or
agent shall not of itself create contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the
Corporation (by death, resignation, removal, or otherwise) may be filled
by the board of directors.
6.4 Authority. Officers shall have such authority and perform
such duties in the management of the Corporation as are provided in these
by-laws or as may be determined by resolution of the board of directors
not inconsistent with these by-laws.
6.5 Compensation. The compensation, if any, of officers and
agents shall be fixed from time to time by the board of directors;
provided, however, that the board of directors may delegate the power to
determine the compensation of any officer and agent (other than the
officer to whom such power is delegated) to the Chairman of the Board or
the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected
by the board of directors, shall have such powers and duties as may be
prescribed by the board of directors. Such officer shall preside at all
meetings of the stockholders and of the board of directors. Such officer
may sign all certificates for shares of stock of the Corporation.
6.7 President. The President shall be the chief executive
officer of the Corporation and, subject to the board of directors, he
shall have general executive charge, management, and control of the
properties and operations of the Corporation in the ordinary course of
its business, with all such powers with respect to such properties and
operations as may be reasonably incident to such responsibilities. If
the board of directors has not elected a Chairman of the Board or in the
absence or inability to act of the Chairman of the Board, the President
shall exercise all of the powers and discharge all of the duties of the
Chairman of the Board. As between the Corporation and third parties, any
action taken by the President in the performance of the duties of the
Chairman of the Board shall be conclusive evidence that there is no
Chairman of the Board or that the Chairman of the Board is absent or
unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers
and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President, and (in order of their seniority
as determined by the board of directors or, in the absence of such
determination, as determined by the length of time they have held the
office of Vice President) shall exercise the powers of the President
during that officer's absence or inability to act. As between the
Corporation and third parties, any action taken by a Vice President in
the performance of the duties of the President shall be conclusive
evidence of the absence or inability to act of the President at the time
such action was taken.
6.9 Treasurer. The Treasurer shall have custody of the
Corporation's funds and securities, shall keep full and accurate account
of receipts and disbursements, shall deposit all monies and valuable
effects in the name and to the credit of the Corporation in such
depository or depositories as may be designated by the board of
directors, and shall perform such other duties as may be prescribed by
the board of directors, the Chairman of the Board, or the President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have
such powers and duties as may be assigned to him by the board of
directors, the Chairman of the Board, or the President. The Assistant
Treasurers (in the order of their seniority as determined by the board of
directors or, in the absence of such a determination, as determined by
the length of time they have held the office of Assistant Treasurer)
shall exercise the powers of the Treasurer during that officer's absence
or inability to act.
6.11 Secretary. Except as otherwise provided in these by-laws,
the Secretary shall keep the minutes of all meetings of the board of
directors and of the stockholders in books provided for that purpose, and
he shall attend to the giving and service of all notices. He may sign
with the Chairman of the Board or the President, in the name of the
Corporation, all contracts of the Corporation and affix the seal of the
Corporation thereto. He may sign with the Chairman of the Board or the
President all certificates for shares of stock of the Corporation, and he
shall have charge of the certificate books, transfer books, and stock
papers as the board of directors may direct, all of which shall at all
reasonable times be open to inspection by any director upon application
at the office of the Corporation during business hours. He shall in
general perform all duties incident to the office of the Secretary,
subject to the control of the board of directors, the Chairman of the
Board, and the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have
such powers and duties as may be assigned to him by the board of
directors, the Chairman of the Board, or the President. The Assistant
Secretaries (in the order of their seniority as determined by the board
of directors or, in the absence of such a determination, as determined by
the length of time they have held the office of Assistant Secretary)
shall exercise the powers of the Secretary during that officer's absence
or inability to act.
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of
the Corporation shall be in such form as shall be approved by the board
of directors. The certificates shall be signed by the Chairman of the
Board or the President or a Vice President and also by the Secretary or
an Assistant Secretary or by the Treasurer or an Assistant Treasurer.
Any and all signatures on the certificate may be a facsimile and may be
sealed with the seal of the Corporation or a facsimile thereof. If any
officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon, a certificate has ceased to be such
officer, transfer agent, or registrar before such certificate is issued,
such certificate may be issued by the Corporation with the same effect as
if he were such officer, transfer agent, or registrar at the date of
issue. The certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall
exhibit the holder's name and the number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in
place of a certificate or certificates theretofore issued by the
Corporation and alleged to have been lost or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate or
certificates representing shares to be lost or destroyed. When
authorizing such issue of a new certificate or certificates the board of
directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate
or certificates, or his legal representative, to advertise the same in
such manner as it shall require and/or to give the Corporation a bond
with a surety or sureties satisfactory to the Corporation in such sum as
it may direct as indemnity against any claim, or expense resulting from a
claim, that may be made against the Corporation with respect to the
certificate or certificates alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall
be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal
representatives. Upon surrender to the Corporation or the transfer agent
of the Corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment, or authority to
transfer, the Corporation or its transfer agent shall issue a new
certificate to the person entitled thereto, cancel the old certificate,
and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
7.5 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem
expedient concerning the issue, transfer, and registration or the
replacement of certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and
authority to provide that certificates representing shares of stock bear
such legends as the board of directors deems appropriate to assure that
the Corporation does not become liable for violations of federal or state
securities laws or other applicable law.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate
of incorporation of the Corporation, dividends may be declared by the
board of directors at any regular or special meeting and may be paid in
cash, in property, or in shares of stock of the Corporation. Such
declaration and payment shall be at the discretion of the board of
directors.
8.2 Reserves. There may be created by the board of directors out
of funds of the Corporation legally available therefor such reserve or
reserves as the directors from time to time, in their discretion,
consider proper to provide for contingencies, to equalize dividends, or
to repair or maintain any property of the Corporation, or for such other
purpose as the board of directors shall consider beneficial to the
Corporation, and the board of directors may modify or abolish any such
reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and
complete books and records of account, shall keep minutes of the
proceedings of its stockholders and board of directors and shall keep at
its registered office or principal place of business, or at the office of
its transfer agent or registrar, a record of its stockholders, giving the
names and addresses of all stockholders and the number and class of the
shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be
fixed by the board of directors; provided, that if such fiscal year is
not fixed by the board of directors and the selection of the fiscal year
is not expressly deferred by the board of directors, the fiscal year
shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time
to time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may
resign by so stating at any meeting of the board of directors or by
giving written notice to the board of directors, the Chairman of the
Board, the President, or the Secretary. Such resignation shall take
effect at the time specified therein or, if no time is specified therein,
immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
8.7 Securities of Other Corporations. The Chairman of the Board,
the President, or any Vice President of the Corporation shall have the
power and authority to transfer, endorse for transfer, vote, consent, or
take any other action with respect to any securities of another issuer
which may be held or owned by the Corporation and to make, execute, and
deliver any waiver, proxy, or consent with respect to any such
securities.
8.8 Telephone Meetings. Stockholders (acting for themselves or
through a proxy), members of the board of directors, and members of a
committee of the board of directors may participate in and hold a meeting
of such stockholders, board of directors, or committee by means of a
conference telephone or similar communications equipment by means of
which persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall constitute
presence in person at such meeting, except where a person participates in
the meeting for the express purpose of objecting to the transaction of
any business on the ground that the meeting is not lawfully called or
convened.
8.9 Action Without a Meeting. (a) Unless otherwise provided in
the certificate of incorporation of the Corporation, any action required
by the Delaware General Corporation Law to be taken at any annual or
special meeting of the stockholders, or any action which may be taken at
any annual or special meeting of the stockholders, may be taken without a
meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed
by the holders (acting for themselves or through a proxy) of outstanding
stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which the
holders of all shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Every written
consent of stockholders shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless, within
sixty days of the earliest dated consent delivered in the manner required
by this Section 8.9(a) to the Corporation, written consents signed by a
sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the Corporation's
registered office, principal place of business, or such officer or agent
shall be by hand or by certified or registered mail, return receipt
requested.
(b) Unless otherwise restricted by the certificate of
incorporation of the Corporation or by these by-laws, any action required
or permitted to be taken at a meeting of the board of directors, or of
any committee of the board of directors, may be taken without a meeting
if a consent or consents in writing, setting forth the action so taken,
shall be signed by all the directors or all the committee members, as the
case may be, entitled to vote with respect to the subject matter thereof,
and such consent shall have the same force and effect as a vote of such
directors or committee members, as the case may be, and may be stated as
such in any certificate or document filed with the Secretary of State of
the State of Delaware or in any certificate delivered to any person.
Such consent or consents shall be filed with the minutes of proceedings
of the board or committee, as the case may be.
8.10 Invalid Provisions. If any part of these by-laws shall be
held invalid or inoperative for any reason, the remaining parts, so far
as it is possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its
duly authorized officer or officers, the attestation to such execution by
the Secretary of the Corporation shall not be necessary to constitute
such deed, deed of trust, mortgage, or other instrument a valid and
binding obligation against the Corporation unless the resolutions, if
any, of the board of directors authorizing such execution expressly state
that such attestation is necessary.
8.12 Headings. The headings used in these by-laws have been
inserted for administrative convenience only and do not constitute matter
to be construed in interpretation.
8.13 References. Whenever herein the singular number is used, the
same shall include the plural where appropriate, and words of any gender
should include each other gender where appropriate.
8.14 Amendments. These by-laws may be altered, amended, or
repealed or new by-laws may be adopted by the stockholders or by the
board of directors at any regular meeting of the stockholders or the
board of directors or at any special meeting of the stockholders or the
board of directors if notice of such alteration, amendment, repeal, or
adoption of new by-laws be contained in the notice of such special
meeting.
The undersigned, the Secretary of the Corporation, hereby certifies
that the foregoing by-laws were adopted by unanimous consent by the
directors of the Corporation as of _____________, 1995.
______________________________
______________, Secretary
Exhibit 6
SEE REVERSE HEREOF FOR CERTAIN LEGENDED INFORMATION
Number Shares
______ ______
ENERSHOP INC.
A Delaware Corporation
Common Stock, par value $0.10 per share
THIS IS TO CERTIFY THAT ______________________________ is the owner of
________________ fully issued and non-assessable shares of the above
Corporation transferable only on the books of the Corporation by the
holder thereof in person or by duly authorized Attorney upon surrender of
this Certificate properly endorsed.
WITNESS, the seal of the Corporation and the signatures of its duly
authorized officers.
DATED ______________
____________________________ ___________________________
President Secretary
[Corporate Seal]
[Reverse Side of Stock Certificate]
FOR VALUE RECEIVED ____________ hereby sells, assigns and transfers unto
____________________________________________________________
_________________________________________________________________________
_________________________________________________________
Shares represented by the within Certificate, and do hereby irrevocably
constitute and appoint ______________________________
_______________________________________________________ Attorney to
transfer the said Shares on the books of the within named Corporation
with full power of substitution in the premises.
DATED ________________ 19__
____________________________
Signature
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT TO THE
SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED
EXCEPT UPON THE FURNISHING TO THE CORPORATION BY THE HOLDER OF THIS
CERTIFICATE OF EVIDENCE SATISFACTORY TO THE CORPORATION (WHICH MAY IN ITS
DISCRETION INCLUDE AN OPINION OF COUNSEL) THAT SUCH TRANSACTION IS NOT
REQUIRED TO BE REGISTERED UNDER SUCH ACT OR ANY APPLICABLE "BLUE SKY"
LAWS.
Exhibit 7
FORM OF NOTE TO EVIDENCE LOANS
FROM CSW TO
ENERSHOP INC.
, 19
FOR VALUE RECEIVED, the undersigned, EnerShop Inc. (the "borrower"),
hereby promises to pay the order of Central and South West Corporation (the
"lender") at its principal office in Dallas, Texas, on demand or on
, 19__, or at the option of the borrower, whichever first occurs,
the principal sum set forth below as "Principal Amount Outstanding". This
note may be paid in full at any time or in part from time to time without
premium or penalty. The Principal Amount Outstanding shall bear interest,
calculated daily, at a rate equal to Central and South West Corporation's
weighted daily average effective cost for all short-term borrowings from
external sources outstanding on that date or if there are no borrowings from
external sources outstanding on that date, then the rate equal to the CD
yield equivalent of the 30-day Federal Reserve "AA" Industrial Commercial
Paper Composite (or if no composite rate is established by the Federal
Reserve for that day, then the CD yield equivalent of the composite provided
for the next preceding day for which a composite is established); provided,
however, that such rate shall not exceed the prime rate in effect from time
to time at a bank designated by CSW. Interest will be calculated on the
daily Principal Amount Outstanding as indicated on the grid on the reverse
side hereof or attached hereto or in an account maintained by the lender for
such purpose.
ENERSHOP INC.
________________________________
Name:
Title:
Principal
Loan Amount
Date (Repayment) Outstanding Rate Interest
------- ----------- ----------- ------ --------
------- ----------- ----------- ------ --------
------- ----------- ----------- ------ --------
------- ----------- ----------- ------ --------
------- ----------- ----------- ------ --------
------- ----------- ----------- ------ --------
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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<NAME> CENTRAL AND SOUTH WEST CONSOLIDATED
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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<ARTICLE> OPUR1
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<NAME> CENTRAL AND SOUTH WEST CORPORATION
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<COMMERCIAL-PAPER-OBLIGATIONS> 846 946
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<OTHER-OPERATING-EXPENSES> 59 0
<TOTAL-OPERATING-EXPENSES> 62 0
<OPERATING-INCOME-LOSS> (62) 0
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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<NAME> ENERSHOP, INC.
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<S> <C> <C>
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