FILE No. 70-8509
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM U-1
AMENDMENT NO. 2
to
APPLICATION - DECLARATION
under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
Entergy Corporation Entergy Enterprises, Inc.
639 Loyola Avenue Three Financial Centre
New Orleans, Louisiana 70113 900 S. Shackleford Rd., Suite 210
Little Rock, Arkansas 72211
Entergy Systems and Service, Inc.
4740 Shelby Drive, Suite 105
Memphis, Tennessee 38118
(Names of companies filing this statement and addresses
of principal executive offices)
Entergy Corporation
(Name of top registered holding company
parent of each applicant or declarant)
Michael G. Thompson
Senior Vice President, General Counsel and Secretary
Entergy Corporation
639 Loyola Avenue
New Orleans, Louisiana 70113
(Name and address of agent for service)
The Commission is also requested to send copies of any
communications in connection with this matter to:
Laurence Mason Hamric, Esq. John L. Bosch
General Attorney Vice President
Entergy Services, Inc. Entergy Systems and Service, Inc.
639 Loyola Avenue 4740 Shelby Drive, Suite 105
New Orleans, Louisiana 70113 Memphis, Tennessee 38118
Mark W. Hoffman, Esq.
Senior Attorney
Entergy Services, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
<PAGE>
Item 2. Fees, Commission and Expenses.
The fees, commissions and expenses paid or
incurred, directly or indirectly, by Entergy, in connection
with the transactions herein are not expected to exceed
$10,000, including the $2,000 filing fee payable to the
Commisison and legal fees estimated not to exceed $8,000.
Item 6. Exhibits and Financial Statements.
(a) Exhibits
A-1 Certificate of Incorporation of Entergy
SASI (formerly known as Systems and
Service USA).
A-2 Certificate of Amendment of Certificate
of Incorporation of Entergy SASI
A-3 By-Laws of Entergy SASI
A-4 Specimen Certificate of common stock of
Entergy SASI
A-10 Form of Entergy SASI Note to Enterprises
F. Opinion of Counsel
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned companies have
duly caused this amendment to be signed on their behalf by
the undersigned thereunto duly authorized.
ENTERGY CORPORATION
By: /s/ Michael G. Thompson
Michael G. Thompson
Senior Vice President,
General Counsel and Secretary
ENTERGY ENTERPRISES, INC.
By: /s/ Michael G. Thompson
Michael G. Thompson
Senior Vice President -
Law and Secretary
ENTERGY SYSTEMS AND SERVICE, INC.
By: /s/ Michael G. Thompson
Michael G. Thompson
Vice President and Secretary
Dated: May 31, 1995
Exhibit A-1
CERTIFICATE OF INCORPORATION
OF
SYSTEMS AND SERVICE U.S.A., INC.
THE UNDERSIGNED in order to form a corporation for
the purposes hereinafter stated, under and pursuant to
the provisions of the General Corporation Law of the
State of Delaware, does hereby certify as follows:
FIRST: The name of the Corporation is Systems and
Service U.S.A., Inc..
SECOND: The registered office of the Corporation is
to be located at 1209 Orange Street in the City of
Wilmington, in the County of Newcastle, in the
State of Delaware. The name of its registered agent
at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage
in any lawful act or activity for which a
corporation may be organized under the General
Corporation Law of Delaware as presently in effect
or as may hereinafter be amended. The primary
objects for which the Corporation is organized are:
a) To engage in the business of an energy
services company, providing various energy
management services primarily to commercial,
industrial and institutional customers and to
owners of multi-unit dwellings, including
without limitation (i) performing audits of
customers' energy systems and facilities to
determine potential energy savings, (ii)
designing, installing and maintaining energy
management technologies and implementing
conservation and energy management programs
(including installation of meters and controls
on equipment for lighting, space and water
heating, air conditioning, refrigeration,
ventilation and modification of inefficient
equipment), (iii) monitoring the performance of
such technologies and programs for its
customers, (iv) training customer personnel in
the maintenance and operation of such systems
and (v) reporting on system results;
(b) To enter into specific ventures
relating to the implementation of demand side
management programs within the utility
industry;
(c) To invest in the development of or
otherwise acquire energy efficient technologies
which the Corporation may utilize in its energy
service business;
(d) To acquire by purchase, lease or
otherwise, and to construct, extend, own,
finance, deal in, sell or otherwise dispose of,
maintain and operate all property, real or
personal, tangible or intangible, of whatever
kind and wherever situated, and every right or
interest therein, which may be necessary,
appropriate, convenient or incidental to such
business or businesses;
(e) To act as agent, broker or factor for
any person, individual, firm, corporation or
other body;
(f) To borrow money and contract debts in
connection with the transaction of the business
of the Corporation or for the exercise of its
corporate rights, privileges or franchises or
for any other lawful purpose of its
incorporation; to issue bonds, promissory
notes, bills of exchange, debentures and other
obligations and evidences of indebtedness
payable at a specified time or times or payable
upon the happening of a specified event or
events whether secured by mortgage, pledge or
otherwise or unsecured, for money borrowed or
in payment for property purchased or acquired
or any other lawful objects;
(g) To make any guaranty respecting
dividends, stocks, bonds, contracts, or other
obligations, whether of the Corporation or any
other person, individual, firm, corporation or
other body, insofar as may be permitted by law;
(h) To lend money, secured by mortgages
on personal property or real estate, or as
collateral security therefor to take notes,
open accounts, and other similar evidences of
debt or otherwise;
(i) To conduct business, have one or more
offices, and hold, purchase, mortgage and
convey real and personal property in the State
of Delaware and in any of the several states,
territories, possessions and dependencies of
the United States, the District of Columbia and
in foreign countries; and
(j) To do everything necessary and proper
for the accomplishment of the objects
enumerated in this Certificate of Incorporation
or any amendment thereof or necessary or
incidental to the protection and benefit of the
Corporation, and in general to carry on any
lawful business necessary or incidental to the
attainment of the objects of the Corporation,
whether or not such business is similar in
nature to the objects set forth in this
Certificate of Incorporation or any amendment
thereof.
It is the intention that the objects and
purposes specified in the foregoing clauses of
this Article THIRD shall also be construed as
powers, and that the foregoing enumeration of
specific objects shall not be held to limit or
restrict in any manner the powers of the
Corporation, but shall be in furtherance of,
and in addition to, and not in limitation of,
the general powers confirmed by the General
Corporation Law of the State of Delaware, as it
may hereafter be amended.
FOURTH: The total number of shares of capital stock
which the Corporation is authorized to issue is
50,000 shares of capital stock having no par value
per share and of one class; such class is hereby
designated as common stock.
FIFTH: No stockholder shall be entitled as a matter
of right to subscribe for, purchase or receive any
shares of the stock or any rights or options of the
Corporation which it may issue or sell, whether out
of the number of shares authorized by this
Certificate of Incorporation or by amendment thereof
or out of the shares of the stock of the Corporation
acquired by it after the issuance thereof, nor shall
any stockholder be entitled as a matter of right to
purchase or subscribe for or receive any bonds,
debentures or other obligations which the
Corporation may issue or sell that shall be
convertible into or exchangeable for stock or to
which shall be attached or appertain any warrant or
warrants or other instrument or instruments that
shall confer upon the holder or owner of such
obligation the right to subscribe for or purchase
from the Corporation any shares of its capital
stock, but all such additional issues of stock,
rights, options, or of bonds, debentures or other
obligations convertible into or exchangeable for
stock or to which warrants shall be attached or
appertain or which shall confer upon the holder the
right to subscribe for or purchase any shares of
stock may be issued and disposed of by the Board of
Directors to such persons and upon such terms as in
their absolute discretion they may deem advisable,
subject only to such limitations as may be imposed
in this Certificate of Incorporation or in any
amendment thereto.
SIXTH: An annual meeting of stockholders shall be
held for the election of Directors and the
transaction of such other business as may properly
come before said meeting. Special meetings of the
stockholders of the Corporation shall be held
whenever called in the manner required by the laws
of the State of Delaware for purposes as to which
there are special statutory provisions, and for
other purposes whenever called by resolution of the
Board of Directors, or by the Chairman of the Board,
the President, or the holders of a majority of the
issued and outstanding shares of the common stock of
the Corporation. Except as otherwise provided
herein, any such annual or special meeting of
stockholders shall be held on a date and at a time
and place as may be designated by or in the manner
provided in the By-Laws.
SEVENTH: The name and mailing address of the
Incorporator is Entergy Enterprises, Inc., 225
Baronne Street, New Orleans, Louisiana 70112.
EIGHTH: The number of Directors which shall
constitute the whole Board shall be not less than
one (1) nor more than ten (10). Within such limits,
the number of Directors shall be fixed and may be
altered from time to time, as provided in the By-
Laws. Election of Directors need not be by ballot
unless the By-Laws so provide. Directors need not
be stockholders. Directors shall be elected at the
annual meeting of the stockholders of the
Corporation, except as herein provided, to serve
until the next annual meeting of stockholders and
until their respective successors are duly elected
and have qualified. Vacancies occurring among the
Directors (other than in the case of removal of a
Director) shall be filled by a majority vote of the
Directors then in office with the consent of the
holders of a majority of the issued and outstanding
common stock of the Corporation, or by the sole
remaining Director with the consent of the holders
of a majority of the issued and outstanding common
stock of the Corporation, or by resolution duly
adopted by the holders of a majority of the issued
and outstanding common stock of the Corporation, at
a special meeting held for such purpose, or by
action taken in lieu of such meeting, or at the next
annual meeting of stockholders following any
vacancy. At any meeting of stockholders of the
Corporation called for the purpose, the holders of a
majority of the issued and outstanding shares of the
common stock of the Corporation may remove from
office, with or without cause, any or all of the
Directors and the successor of any Director so
removed shall be elected by the holders of a
majority of the issued and outstanding common stock
of the Corporation at such meeting or at a later
meeting.
NINTH: All corporate powers shall be exercised by
the Board of Directors of the Corporation except as
otherwise provided by law or by this Certificate of
Incorporation or by any By-Laws from time to time
passed by the stockholders (provided, however, that
no By-Law so created shall invalidate any prior act
of the Directors which was valid in the absence of
such By-Law). In furtherance and not in limitation
of the powers conferred by law, the Board of
Directors is expressly authorized (a) to make,
alter, amend, and repeal the By-Laws of the
Corporation, subject to the power of the
stockholders to alter, amend or repeal such By-Laws;
(b) to authorize and cause to be executed mortgages
and liens upon all or any part of the property of
the Corporation; (c) to determine the use and
disposition of any surplus or net profits; and (d)
to fix the times for the declaration and payment of
dividends.
TENTH: Directors, as such, shall not receive any
stated salary for their services, but, by resolution
of the Board of Directors, a fixed sum and expenses
of attendance, if any, may be allowed for attendance
at each regular, special or committee meeting of the
Board; provided that nothing herein contained shall
be construed to preclude any Director from serving
the Corporation in any other capacity and receiving
compensation therefor.
ELEVENTH: When and as authorized by the affirmative
vote of the holders of a majority of the common
stock of the Corporation, issued and outstanding,
given at a stockholders' meeting duly called for
that purpose, or when authorized by the written
consent of the holders of a majority of the common
stock of the Corporation issued and outstanding, the
Board of Directors may cause the Corporation to
sell, lease or exchange all or substantially all, of
its property and assets, including its good will and
its corporate franchises, upon such terms and
conditions and for such consideration, which may be
whole or in part shares of stock in, and/or other
securities of, any other corporation or
corporations, as the Board of Directors shall deem
expedient and for the best interests of the
Corporation.
TWELFTH: The Board of Directors may not cause the
Corporation to merge or consolidate with or into any
other corporation or corporations, unless such
merger or consolidation shall have been authorized
by the affirmative vote of the holders of a majority
of the common stock of the Corporation, issued and
outstanding, given at a stockholders' meeting called
for that purpose, or authorized by the written
consent of the holders of a majority of the common
stock of the Corporation issued and outstanding
THIRTEENTH: To the fullest extent permitted by the
laws of the State of Delaware, or any other
applicable law presently or hereafter in affect, a
Director of the Corporation shall not be liable to
the Corporation or its stockholders for monetary
damages for or with respect to any acts or omissions
in the performance of his duties.
Any repeal or modification of the foregoing
paragraph by the stockholders of the Corporation
shall not adversely affect any right or protection
of a Director of the Corporation existing at the
time of such repeal or modification.
FOURTEENTH: If after the date of adoption of this
Certificate of Incorporation any provision of this
Certificate of Incorporation is invalidated on any
grounds by any court of competent jurisdiction, then
only such provision shall be deemed inoperative and
null and void and the remainder of this Certificate
of Incorporation shall not be affected thereby.
FIFTEENTH: The Corporation reserves the right to
amend, alter, change or repeal any provision
contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by law, and
all rights and powers conferred herein on
stockholders, Directors and officers are subject to
this reserved power.
IN WITNESS WHEREOF I have hereunto set my hand this
8th day of December, 1992.
Entergy Enterprises, Inc. - Incorporator
By: /s/ Michael G. Thompson
Michael G. Thompson
Senior Vice President and
Chief Legal Officer
In the presence of:
/s/ Christy Stewart
Exhibit A-2
Systems and Service U.S.A., Inc.
3885 South Perkins, Suite 14 Memphis, Tennessee 38118
Phone (901) 367-2880 (800) 477-7274 Fax (901) 367-2873
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Systems and Service U.S.A., Inc., a corporation organized
and existing under and by virtue of the General
Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That by written consent of all of the members of
the Board of Directors of Systems and Service U.S.A.,
Inc., pursuant to Section 141(f) of the General
Corporation Law of the State of Delaware, resolutions
were duly adopted setting forth a proposed amendment of
the Certificate of Incorporation of said corporation,
declaring said amendment to be advisable and calling for
the adoption thereof by the sole stockholder of the
corporation. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Board of Directors recommend to
the stockholder of the Corporation that the
Certificate of Incorporation of this Corporation be
amended by changing the Article thereof numbered
"FIRST" so that, as amended, said Article shall be
and read as follows:
"The name of the Corporation is Entergy Systems and
Service, Inc."
SECOND: That thereafter, acting upon the recommendation
of the Corporation's Board of Directors, Entergy
Enterprises, Inc., the holder of all of the issued and
outstanding common stock of the Corporation, consented in
writing to the adoption of the proposed amendment in
accordance with Section 228(a) of the General Corporation
Law of the State of Delaware.
THIRD: That said amendment was duly adopted in
accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not
be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, said Systems and Service U.S.A., Inc.
has caused this certificate to be signed by Paul E.
Williams, its President, and Michael Farien, its
Secretary, this 15th day of April, 1993.
By: /s/ Paul E. Williams
President
Attested: /s/ Michael Parien
Secretary
Exhibit A-3
BY-LAWS
OF
SYSTEMS AND SERVICE U.S.A.. INC.
ARTICLE I
Offices
The registered office of the Corporation shall be in
the City of Wilmington, County of New Castle, State of
Delaware. The Corporation also may have offices at such
other places, both within and without the State of
Delaware, as from time to time may be designated by the
Board of Directors.
ARTICLE II
Books
The books and records of the Corporation may be kept
(except as otherwise provided by the laws of the State of
Delaware) outside the State of Delaware and at such place
or places as from time to time may be designated by the
Board of Directors.
ARTICLE III
Meetings of Stockholders
Section 1. Annual Meetings. Each annual meeting of
the stockholders shall be held (i) at a time fixed by the
Board of Directors, on the third Friday in May, if not a
legal holiday; (ii) if a legal holiday, then at the same
time on the next business day which is not a legal
holiday; or (iii) at such date and time during such
calendar year as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
The annual meeting of the stockholders shall be held at
the principal business office of the Corporation or at
such other place or places either within or without the
State of Delaware as may be designated by the Board of
Directors and stated in the notice of the meeting. At
each such meeting, the stockholders shall elect by a
plurality vote a Board of Directors, and transact such
other business as may come before the meeting.
Written notice of the time and place designated for
the annual meeting of the stockholders of the Corporation
shall be delivered personally or mailed to each
stockholder entitled to vote thereat not less than ten
(10) and not more than sixty (60) days prior to said
meeting, but at any meeting at which all stockholders
shall be present, or of which all stockholders not
present have waived notice in writing, the giving of
notice as above described may be dispensed with if
mailed, said notice shall be directed to each stockholder
at his address as the same appears on the stock ledger of
the Corporation unless he shall have filed with the
Secretary of the Corporation a written request that
notices intended for him be mailed to some other address,
in which case it shall be mailed to the address
designated in such request.
Section 2. Special Meetings. Special meetings of
the stockholders of the Corporation shall be held
whenever called in the manner required by the laws of the
State of Delaware for purposes as to which there are
special statutory provisions, and for such other purposes
as required or permitted by the Certificate of
Incorporation or otherwise, whenever called by resolution
of the Board of Directors, or by the Chairman of the
Board, the President, or the holders of a majority of the
issued and outstanding shares of the common stock of the
Corporation. Any such special meeting of stockholders
may be held at the principal business office of the
Corporation or at such other place or places, either
within or without the State of Delaware, as may be
specified in the notice thereof. Business transacted at
any special meeting of stockholders of the Corporation
shall be limited to the purposes stated in the notice
thereof.
Except as otherwise expressly required by the laws
of the State of Delaware or the Certificate of
Incorporation, written notice of each special meeting,
stating the day, hour and place, and in general terms the
business to be transacted thereat, shall be delivered
personally or mailed to each stockholder entitled to vote
thereat not less than ten (10) and not more than sixty
(60) days before the meeting. If mailed, said notice
shall be directed to each stockholder at his address as
the same appears on the stock ledger of the Corporation
unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for
him be mailed to some other address, in which case it
shall be mailed to the address designated in said
request. At any special meeting at which all
stockholders shall be present, or of which all
stockholders not present have waived notice in writing,
the giving of notice as above described may be dispensed
with.
Section 3. Quorum. At any meeting of the
stockholders of the Corporation, except as otherwise
expressly provided by the laws of the State of Delaware
or the Certificate of Incorporation, there must be
present, either in person or by proxy, in order to
constitute a quorum, stockholders owning a majority of
the issued and outstanding shares of the common stock of
the Corporation entitled to vote at said meeting. At any
meeting of stockholders at which a quorum is not present,
the holders of, or proxies for, a majority of the common
stock which is represented at such meeting, shall have
power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a
quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might
have been transacted at the meeting as originally
noticed. If the adjournment is for more than thirty (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 meeting.
Section 4. Voting. Each holder of record of the
common stock of the Corporation shall, at every meeting
of the stockholders of the Corporation, be entitled to
one (1) vote for each share of common stock standing in
his name on the books of the Corporation, and such votes
may be cast either in person or by proxy, appointed by an
instrument in writing, subscribed by such stockholder or
by his duly authorized attorney, and filed with the
Secretary before being voted on, but no proxy shall be
voted after three (3) years from its date, unless said
proxy provides for a longer period. Except as otherwise
required by the laws of the State of Delaware or the
Certificate of Incorporation, the holders of the common
stock of the Corporation shall exclusively possess all
voting power for the election of Directors and for all
other purposes and are entitled to vote on each matter to
be voted on at a stockholders' meeting.
The vote on all elections of Directors and other
questions before the meeting need not be by ballot,
except upon demand by the holders of the majority of the
shares of the common stock of the Corporation present in
person or by proxy.
When a quorum is present at any meeting of the
stockholders of the Corporation, the vote of the holders
of a majority of the shares of the common stock of the
Corporation and present in person or represented by proxy
shall decide any question brought before such meeting,
unless the question is one upon which, under any
provision of the laws of the State of Delaware or of the
Certificate of Incorporation, a different vote is
required, in which case such provision shall govern and
control the decision of such question.
Whenever the vote of the holders of the common stock
of the Corporation at a meeting thereof is required or
permitted to be taken in connection with any corporate
action by any provision of the laws of the State of
Delaware or of the Certificate of Incorporation, such
corporate action may be taken without a meeting, without
prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the
holders of outstanding common stock of the Corporation
having not less than the minimum number of votes that
would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who
have not consented thereto in writing.
Section 5. List of Stockholders. The officer of
the Corporation who shall have charge of the stock ledger
of the Corporation shall prepare and make, at least ten
(10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at
said meeting, arranged in alphabetical order and showing
the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days
prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held.
The list also shall be produced and kept at the time and
place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present.
Section 6. Organization. The Chairman of the Board
or the President, or in their absence, any Vice
President, shall call to order meetings of the
stockholders and shall act as chairman of such meetings.
The Board of Directors or the stockholders may appoint
any stockholder or any Director or officer of the
Corporation to act as chairman of any meeting in the
absence of the Chairman of the Board, the President and
all of the Vice Presidents.
The Secretary of the Corporation shall act as
secretary of all meetings of the stockholders, but in the
absence of the Secretary the presiding officer may
appoint any other person to act as secretary of any
meeting.
ARTICLE IV
Directors
Section 1. Powers. The business and affairs of the
Corporation shall be managed by the Board of Directors
which may exercise all such powers and do all such acts
and things as may be exercised or done by the
Corporation; subject, nevertheless, to the provisions of
the laws of the State of Delaware, the Certificate of
Incorporation, and any By-Laws from time to time passed
by the stockholders; provided, however, that no By-Law so
created shall invalidate any prior act of the Directors
which was valid in the absence of such By-Law.
Section 2. Number of Directors. The number of
Directors which shall constitute the whole Board shall be
not less than one (1) nor more than ten (10). Within
such limits, the number of Directors may be fixed from
time to time by vote of the stockholders or of the Board
of Directors at any regular or special meeting.
Directors need not be stockholders. Directors shall be
elected at the annual meeting of the stockholders of the
Corporation, except as herein provided, to serve until
the next annual meeting of stockholders and until their
respective successors are duly elected and have
qualified.
Section 3. Vacancies. Vacancies occurring among
the Directors (other than in the case of removal of a
Director) shall be filled by a majority vote of the
Directors then in office with the consent of the holders
of a majority of the issued and outstanding common stock
of the Corporation, or by the sole remaining Director
with the consent of the holders of a majority of the
issued and outstanding common stock of the Corporation,
or by resolution duly adopted by the holders of a
majority of the issued and outstanding common stock of
the Corporation, at a special meeting held for such
purpose, or by action taken in lieu of such meeting, or
at the next annual meeting of stockholders following any
vacancy.
Section 4. Removal. At any meeting of stockholders
of the Corporation called for the purpose, the holders of
a majority of the issued and outstanding shares of the
common stock of the Corporation may remove from office,
with or without cause, any or all of the Directors and
the successor of any Director so removed shall be elected
by the holders of a majority of the issued and
outstanding common stock of the Corporation at such
meeting or at a later meeting.
Section 5. Meetings. The first meeting of each
newly elected Board of Directors shall be held
immediately following the annual meeting of stockholders
and at the same place at which regular meetings of the
Board of Directors are held, or at such other time and
place as may be provided by resolution of the Board of
Directors, and no notice of such meeting shall be
necessary to the newly elected Directors in order legally
to constitute a meeting, provided a quorum is present.
In the event that such first meeting of the newly elected
Board of Directors is not held at the time and place
authorized by the foregoing provision, the meeting may be
held at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings
of the Board of Directors, or as shall be specified in a
written waiver signed by all the Directors. Regular
meetings of the Board of Directors may be held without
notice at such time and place, either within or without
the State of Delaware, as shall from time to time be
determined by resolutions of the Board of Directors.
Special meetings of the Board of Directors may be called
by the Chairman of the Board or by the President on
reasonable notice as provided in these By-Laws, and such
meetings shall be held at the principal business office
of the Corporation or at such other place or places,
either within or without the State of Delaware, as shall
be specified in the notice thereof.
Section 6. Quorum. At all meetings of the Board of
Directors, the presence of a majority of the Directors
constituting the Board shall constitute a quorum for the
transaction of business. If a quorum shall not be
present at any meeting of the Board of Directors, the
Directors present thereat, by majority vote, may adjourn
the meeting from time to time, without notice other than
an announcement at the meeting, until a quorum shall be
present. Except as may be otherwise specifically
provided by the laws of the State of Delaware, the
Certificate of Incorporation or these By-Laws, the
affirmative vote of a majority of the Directors present
at the time of such vote shall be the act of the Board of
Directors if a quorum is present.
Section 7. Notice of Meetings. Notice of any
meeting of the Board of Directors requiring notice shall
be given to each Director by personal delivery or by mail
or by telegram, in any case at least forty-eight (48)
hours before the time fixed for the meeting. At any
meeting at which all Directors shall be present, or at
which all Directors not present have waived notice in
writing, the giving of notice as above described may be
dispensed with. Attendance of a Director at a meeting
shall constitute waiver of notice of such meeting, except
when such Director attends such meeting for the express
purpose of objecting, at the beginning of such meeting,
to the transaction of any business because such meeting
is not lawfully called or convened.
Section 8. Action by Consent. Unless otherwise
restricted by the Certificate of Incorporation or these
By-Laws, any action required or permitted to be taken at
any meeting of the Board of Directors may be taken
without a meeting, if all members of the Board consent
thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board.
Section 9. Telephonic Meetings. Unless otherwise
restricted by the Certificate of Incorporation or these
By-Laws, members of the Board of Directors may
participate in a meeting of the Board by means of
conference telephone or similar communications equipment
by means of which all persons participating in such
meeting can hear each other, and participation in a
meeting pursuant to this Section 9 of Article IV shall
constitute presence in person at such meeting.
Section 10. Resignations. Any Director of the
Corporation may resign at any time by giving written
notice to the Board of Directors or to the Chairman of
the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect at
the time specified therein, or, if the time be not
specified, upon receipt thereof; and unless otherwise
specified therein, acceptance of such resignation shall
not be necessary to make it effective.
ARTICLE V
Executive Committee and Other Committees
Section 1. Executive Committee. The Board of
Directors may, by resolution passed by a majority of the
whole Board of Directors, appoint an Executive Committee
of not less than two or more than five members, to serve
during the pleasure of the Board of Directors, to consist
of the Chairman of the Board, and such additional
Director(s) as the Board of Directors may from time to
time designate. The Chairman of the Board of the
Corporation shall be Chairman of the Executive Committee.
Section 2. Procedure. The Executive Committee
shall meet at the call of the Chairman of the Executive
Committee or of any two members. A majority of the
members shall be necessary to constitute a quorum and
action shall be taken by a majority vote of those
present.
Section 3. Powers and Reports. During the
intervals between the meetings of the Board of Directors,
the Executive Committee shall possess and may exercise,
to the fullest extent permitted by law, all the powers of
the Board of Directors in the management and direction of
the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to
all papers which may require it. The taking of action by
the Executive Committee shall be conclusive evidence that
the Board of Directors was not in session when such
action was taken. The Executive Committee shall keep
regular minutes of its proceedings and all action by the
Executive Committee shall be reported to the Board of
Directors at its meeting next following the meeting of
the Executive Committee and shall be subject to revision
or alteration by the Board of Directors; provided, that
no rights of third parties shall be affected by such
revision or alteration.
Section 4. Other Committees. From time to time the
Board of Directors, by the affirmative vote of a majority
of the whole Board of Directors, may appoint other
committees for any purpose or purposes, and such
committees shall have such powers as shall be conferred
by the resolution of appointment. In the absence or
disqualification of a member of any committee (including
the Executive Committee), the member or members thereof
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 place of any such
absent or disqualified member.
ARTICLE VI
Officers
Section 1. Number, Election and Term of Office.
The Board of Directors may elect a Chairman of the Board
and shall elect a President, a Secretary, a Treasurer,
and in their discretion, one or more Vice Presidents.
Whenever the Board of Directors shall elect both a
Chairman of the Board and a President, the Board of
Directors shall, by resolution, designate one of them as
the chief executive officer of the Corporation who,
subject to the direction of the Board of Directors, shall
have direct charge of and general supervision over the
business and affairs of the Corporation. The officers of
the Corporation shall be elected annually by the Board of
Directors at its meeting held immediately after the
annual meeting of the stockholders (other than the
initial officers elected by unanimous consent of the
initial Board of Directors), and each shall hold his
office until his successor shall have been duly elected
and qualified or until he shall have died or resigned or
shall have been removed by majority vote of the entire
Board of Directors. Any number of offices may be held by
the same person. The Board of Directors may from time to
time appoint such other officers and agents as the
interest of the Corporation may require and may fix their
duties and terms of office.
Section 2. Chairman of the Board. The Chairman of
the Board shall be a member of the Board of Directors.
He shall preside at all meetings of the Board of
Directors, and shall have such other duties as from time
to time may be assigned to him by the Board of Directors,
by the Executive Committee or, if the President shall
have been designated chief executive officer of the
Corporation, by the President.
Section 3. President. The President shall perform
all duties incident to the office of a president of a
corporation and such other duties as from time to time
may be assigned to him by the Board of Directors or by
the Executive Committee, or if the Chairman of the Board
shall have been designated chief executive officer of the
Corporation, by the Chairman of the Board. At any time
when the office of the Chairman of the Board shall be
vacant or if the Board of Directors shall not elect a
Chairman of the Board, the President of the Corporation
shall be the chief executive officer of the Corporation.
Section 4. Vice Presidents. Each Vice President
shall have such powers and shall perform such duties and
from time to time may be conferred upon or assigned to
him by the Board of Directors or as may be delegated to
him by the Chairman of the Board (if chief executive
officer) or the President.
Section 5. Secretary. The Secretary shall keep the
minutes of all meetings of the stockholders and of the
Board of Directors in books provided for the purpose;
shall see that all notices are duly given in accordance
with the provisions of the law and these By-Laws; shall
be custodian of the records and of the corporate seal of
the Corporation; shall see that the corporate seal is
affixed to all documents the execution of which under the
seal is duly authorized, and when the seal is so affixed
may attest the same; may sign, with the Chairman of the
Board (if chief executive officer), the President or a
Vice President, certificates of stock of the Corporation;
and in general, shall perform all duties incident to the
office of a secretary of a corporation, and such other
duties as from time to time may be assigned by the
Chairman of the Board (if chief executive officer), the
President or the Board of Directors.
The Secretary shall also keep, or cause to be kept,
a stock book, containing the names, alphabetically
arranged, of all persons who are stockholders of the
Corporation, showing their places of residence, the
number of shares held by them respectively, and the time
when they respectively became owners thereof.
Section 6. Treasurer. The Treasurer shall have
charge of and be responsible for all funds, securities,
receipts and disbursements of the Corporation, and shall
deposit, or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such
banks, trust companies or other depositories as shall,
from time to time, be selected by the Board of Directors
or by the Treasurer if so authorized by the Board of
Directors; may endorse for collection on behalf of the
Corporation, checks, notes and other obligations; may
sign receipts and vouchers for payments made to the
Corporation; singly or jointly with another person as the
Board of Directors may authorize, may sign checks on the
Corporation and pay out and dispose of the proceeds under
the direction of the Board; shall render or cause to be
rendered to the Chairman of the Board (if chief executive
officer), the President and the Board of Directors,
whenever requested, an account of the financial condition
of the Corporation; may sign, with the Chairman of the
Board (if chief executive officer), the President or a
Vice President, certificates of stock of the Corporation;
and in general, shall perform all the duties incident to
the office of a treasurer of a corporation, and such
other duties as from time to time may be assigned by the
Chairman of the Board (if chief executive officer), the
President or the Board of Directors.
Section 7. Subordinate Officers. The Board of
Directors may appoint such assistant secretaries,
assistant treasurers and other subordinate officers as it
may deem desirable. Each such officer shall hold office
for such period, have such authority and perform such
duties as the Board of Directors may prescribe. The
Board of Directors may, from time to time, authorize the
chief executive officer to appoint and remove subordinate
officers and to prescribe the powers and duties thereof.
Section 8. Transfer of Duties. The Board of
Directors in its absolute discretion may transfer the
power and duties, in whole or in part, of any officer to
any other officer, or persons, notwithstanding the
provisions of these By-Laws, except as otherwise provided
by the laws of the State of Delaware.
Section 9. Vacancies, Absences. If the office of
Chairman of the Board, President, Vice President,
Secretary or Treasurer, or of any other officer or agent
becomes vacant for any reason, the Board of Directors
may, but is not required to, choose a successor to hold
office for the remainder of the unexpired term. Except
when the law requires the act of a particular officer,
the Board of Directors whenever necessary may, in the
absence of any officer, designate any other officer or
properly qualified employee, to perform the duties of the
one absent for the time being, and such designated
officer or employee shall have, when so acting, all the
powers herein given to such absent officer.
Section l0. Removals. At any meeting of the Board
of Directors called for the purpose, any officer or agent
of the Corporation may be removed from office, with or
without cause, by the affirmative vote of a majority of
the entire Board of Directors.
Section ll. Resignations. Any officer or agent of
the Corporation may resign at any time by giving written
notice to the Board of Directors, the Chairman of the
Board, the President or the Secretary of the Corporation.
Any such resignation shall take effect at the time
specified therein or, if the time is not specified, upon
receipt thereof; and unless otherwise specified therein,
acceptance of such resignation shall not be necessary to
make it effective.
Section 12. Compensation of Officers. The officers
shall receive such salary or compensation as may be
determined by the affirmative vote of the majority of the
Board of Directors. No officer shall be prevented from
receiving such salary or compensation by reason of the
fact that he is also a Director of the Corporation.
ARTICLE VII
Contracts, Checks and Notes
Unless the Board of Directors shall otherwise
specifically direct, all contracts, checks, drafts, bills
of exchange and promissory notes and other negotiable
instruments of the Corporation shall be executed in the
name of the Corporation by the Chairman of the Board, the
President, a Vice President, Secretary or Treasurer or
any officer as may be designated by the Board of
Directors.
ARTICLE VIII
Capital Stock
Section 1. Certificates of Stock. The certificates
for shares of the stock of the Corporation shall be in
such form, not inconsistent with the Certificate of
Incorporation, as shall be prepared or approved by the
Board of Directors. Every holder of stock in the
Corporation shall be entitled to have a certificate
signed by, or in the name of the Corporation, by the
Chairman of the Board (if chief executive officer), the
President or a Vice President, and by the Treasurer or
the Secretary certifying the number of shares owned by
him and the date of issue; and no certificate shall be
valid unless so signed. All certificates shall be
consecutively numbered and shall be entered in the books
of the Corporation as they are issued.
All signatures on the certificate may be facsimile.
In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is
issued, it 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.
Section 2. Transfer of Stock. Upon surrender to
the Corporation or the transfer agent of the Corporation
of a certificate for shares duly endorsed or accompanied
by proper evidence of succession, assignment or authority
to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its
books.
Section 3. 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, save as expressly provided by the laws of the
State of Delaware.
Section 4. Lost Certificates. Any person claiming
a certificate of stock to be lost or destroyed shall make
an affidavit or affirmation of the fact and advertise the
same in such manner as the Board of Directors may
require, and the Board of Directors, in its discretion,
may require the owner of the lost or destroyed
certificate, or his legal representative, to give the
Corporation a bond in a sum sufficient, in the opinion of
the Board of Directors, to indemnify the Corporation
against any claim that may be made against it on account
of the alleged loss of any such certificate. A new
certificate of the same tenor and for the same number of
shares as the one alleged to be lost or destroyed may be
issued without requiring any bond when, in the judgment
of the Directors, it is proper so to do.
Section 5. Record Date. In order that the
Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or to
receive payment of any dividend or other distribution or
allotment of any rights, or 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, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days
before the date of such meeting, nor more than sixty (60)
days prior to any other action. 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.
ARTICLE IX
Dividends
Dividends upon the common stock of the Corporation
may be declared by the Board of Directors at any regular
or special meeting, pursuant to law. Dividends may be
paid in cash, in property, or in shares of the common
stock of the Corporation, subject to the provisions of
the Certificate of Incorporation.
Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for
dividends such sums as the Directors from time to time,
in their absolute discretion, think proper as a reserve
or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property
of the Corporation, or for such other purpose as the
Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any
such reserve in the manner in which it was created.
ARTICLE X
Waiver of Notice
Whenever any notice whatever is required to be given
by statute or under the provisions of the Certificate of
Incorporation or these By-Laws, a waiver thereof in
writing signed by the person or persons entitled to said
notice, whether before or after the time stated therein,
shall be equivalent thereto, unless expressly provided
otherwise in such statute, Certificate of Incorporation
or these By-Laws.
ARTICLE XI
Seal
The corporate seal of the Corporation shall have
inscribed thereon the name of the Corporation, the year
of its organization and the words "Corporate Seal,
Delaware", or shall be in such other form as the Board of
Directors may prescribe.
ARTICLE XII
Fiscal Year
The fiscal year of the Corporation shall be the
calendar year.
ARTICLE XIII
Indemnification; Advancement of Expenses;
Insurance and Other Funding Arrangements
Section 1. Mandatory Indemnification - Third Party
Actions. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or
proceeding ("Action"), whether civil, criminal,
administrative or investigative (other than an Action by
or in the right of the Corporation) by reason of the fact
that he is or was a Director, officer or employee of the
Corporation, or is or was serving at the request of the
Corporation as a Director, officer or employee of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually
and reasonable incurred by him in connection with such
Action if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal Action, had no reasonable cause to believe his
conduct was unlawful. The termination of any Action by
judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act
in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interest of
the Corporation, and, with respect to any criminal
Action, had reasonable cause to believe that his conduct
was unlawful. The right to indemnification under this
Section 1 of Article XIII shall be a contract right that
may be enforced in any lawful manner by a person entitled
to such indemnification.
Section 2. Mandatory Indemnification - Derivative
Actions. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to
any threatened, pending or completed Action by or in the
right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a Director,
officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a Director,
officer, or employee of another corporation, partnership,
joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense
or settlement of such Action if he acted in good faith
and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation and
except that no indemnification under these By-Laws shall
be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable
to the Corporation, unless and only to the extent that
the Court of Chancery of the State of Delaware or the
court in which such Action was brought, shall determine
upon application that, despite the adjudication of
liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery
of the State of Delaware or such other court shall deem
proper. The right to indemnification under this Section
2 of Article XIII shall be a contract right that may be
enforced in any lawful manner by a person entitled to
such indemnification.
Section 3. Mandatory Indemnification - Successful
Party. To the extent that a Director, officer, employee
or agent of the Corporation has been successful on the
merits or otherwise in defense of any Action referred to
in Sections 1 or 2 of this Article XIII, or in defense of
any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith. The right to indemnification under this
Section 3 of Article XIII shall be a contract right that
may be enforced in any lawful manner by a person entitled
to such indemnification.
Section 4. Permissive Indemnification. Except as
otherwise expressly provided in Section 2 of this Article
XIII, the Corporation may also indemnify any person who
is or was a party or is threatened to be made a party to
any Action by reason of the fact that he is or was a
Director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as
a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against all or part of any expenses
(including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by
him in connection with such Action if it shall be
determined in accordance with the applicable procedures
set forth in Section 5 that such person is fairly and
reasonably entitled to such indemnification.
Section 5. Procedure. Any indemnification under
the foregoing provisions of this Article XIII (unless
ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination
that indemnification of the Director, officer, employee
or agent is proper in the circumstances because he has
met the applicable standards of conduct set forth in
Sections 1 or 2, or is entitled to indemnification under
Section 4, of this Article XIII. Such determination
shall be made (i) by the Board of Directors by a majority
vote of a quorum, as defined in the Certificate of
Incorporation or these By-Laws, consisting of Directors
who are not or were not parties to any pending or
completed Action giving rise to the proposed indemnifica
tion, or (ii) if such a quorum is not obtainable or, even
if obtainable, a quorum of disinterested Directors so
directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders.
Section 6. Advance Payments. Expenses (including
attorneys' fees) incurred or reasonably expected to be
incurred by a Director or officer of the Corporation in
defending any Action referred to in Sections I or 2 of
this Article XIII shall be paid by the Corporation in
advance of the final determination thereof upon receipt
by the Corporation of his written request therefor and
his written promise to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized or required
by this Article XIII. The right of Directors and
officers to advancement of expenses under this Section 6
of Article XIII shall be a contract right that may be
enforced in any lawful manner by a Director or officer of
the Corporation. Such expenses incurred by other
employees and agents may be paid upon such terms and
conditions, if any, as the Board of Directors deems
appropriate.
Section 7. Provisions Not Exclusive. The
indemnification and advancement of expenses provided by,
or granted pursuant to, this Article shall not be deemed
exclusive of any other rights to which any person seeking
indemnification and advancement of expenses, may be
entitled under any law, by-law, agreement, vote of
stockholders or disinterested Directors or otherwise,
both as to action in his official capacity and as to
action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a
Director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of
such a person.
Section 8. Insurance. The Corporation may purchase
and maintain insurance on behalf of any person who is or
was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a Director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or
other enterprise, against any liability asserted against
him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the Corporation
would have the power to indemnify him against such
liability under the provisions of this Article XIII.
Section 9. Other Arrangements. The Corporation
also may obtain a letter of credit, act as a self-
insurer, create a reserve, trust, escrow, cash collateral
or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any
assets or properties of the Corporation, or use any other
mechanism or arrangement whatsoever in such amounts, at
such costs, and upon such other terms and conditions as
the Board of Directors shall deem appropriate for the
protection of any or all such persons.
Section 10. Severability. If this Article XIII or
any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation
shall nevertheless indemnify each person as to whom the
Corporation has agreed to grant indemnity, as to
liabilities and expenses, and amounts paid or to be paid
in settlement with respect to any proceeding, including
an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this
Article XIII that shall not have been invalidated and to
the full extent permitted by applicable law.
Section 11. Miscellaneous. (a) For the purposes of
this Article XIII, references to "the Corporation"
include all constituent corporations absorbed in a
consolidation or merger, as well as the resulting or
surviving corporation, so that any person who is or was a
Director, officer, employee or agent of such a
constituent corporation or is or was serving at the
request of such constituent corporation as a Director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of
this Article XIII with respect to the resulting or
surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity.
(b) For purposes of this Article XIII, references to
"other enterprises" shall include employee benefit plans;
references to "fines' shall include any excise taxes
assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
Corporation" shall include any services as a Director,
officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such
Director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith in a manner he
reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as
referred to in this Article XIII.
(c) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article XIII
shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of
such a person.
ARTICLE XIV
General Provisions
Section 1. The Chairman of the Board, the
President, any Vice President or the Treasurer of the
Corporation may attend any meeting of the holders of
stock or other securities of any other corporation, any
of whose stock or other securities are held by the
Corporation, and cast the votes which the Corporation is
entitled to cast as a stockholder or otherwise at such
meeting, or may consent in writing to any action by any
such corporation, and may execute on behalf of the
Corporation and under its corporate seal, or otherwise,
such written proxies, consents, waivers or other
instruments as he may deem necessary or appropriate. Any
of the foregoing acts or functions may also be performed
by any one or more of such persons as shall from time to
time be authorized by the Board of Directors or by a
writing executed by the chief executive officer of the
Corporation.
Section 2. The moneys of the Corporation shall be
deposited in the name of the Corporation in such bank or
banks or trust company or trust companies as the Board of
Directors shall from time to time designate, and shall be
drawn out only by signed checks or by telephonic or other
electronic advice given and subsequently confirmed by
means which the bank or trust company may require, by
persons designated in a resolution or resolutions of the
Board of Directors or by such other persons designated by
a writing executed by persons authorized to so designate
in a resolution or resolutions of the Board of Directors.
Section 3. Notices to Directors and stockholders
shall be in writing and delivered personally or mailed to
the Directors or stockholders at their addresses
appearing on the books of the Corporation. Notice by
mail shall be deemed to be given at the time the same
shall be mailed. Notice to Directors may also be given
by telegraph, and any such notice shall be deemed to be
given when delivered to an office of the transmitting
company with all charges prepaid.
Section 4. Alterations, amendments or repeals of
these By-Laws, or any of them, may be made by a majority
of the stockholders entitled to vote at any meeting
thereof, if the notice of such meeting contains a
statement of the proposed alteration, amendment or
repeal, or by the Board of Directors by a majority vote
of the whole Board of Directors at any meeting thereof,
provided notice of such alteration, amendment or repeal
has been given to each Director in writing. No notice of
any alteration, amendment or repeal need be given if
adopted by action taken at a meeting duly held on waiver
of notice.
Exhibit A-4
NUMBER SHARES
______ _____
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
ENTERGY SYSTEMS
AND SERVICE, INC.
NO PAR VALUE
This certifies that
SPECIMEN
is the owner of
____________________________________________________________________
fully paid and non-assessable Shares of the above Corporation
transferable only on the books of the Corporation by the holder hereof
in person or by dujly authorized Attorney upon surrender of this
Certificate properly endorsed.
In Witness Whereof,, the said Corporation has caused this
Certificate to be signed by its duly authorized officers and to be
sealed with the Seal of the Corporation.
Dated_________________________
EXHIBIT A-10
[FORM OF NOTE]
[Date]
Little Rock,
Arkansas
[Principal Amount of Note]
FOR VALUE RECEIVED, ENTERGY SYSTEMS AND SERVICE, INC.
("Entergy SASI") promises to pay to the order of Entergy
Enterprises, Inc. ("Enterprises"), on (the "Loan Maturity
Date"), at its office located at Three Financial Centre, 900
Shackleford Road, Suite 210, Little Rock, Arkansas 72211, in
lawful money of the United States of America, the principal
amount of Dollars ($ ), or, if less, the
unpaid principal amount thereof, and to pay interest in like
money at said office on said unpaid principal amount from the
date hereof, payable quarterly in arrears on the first business
day of each January, April, July, and October, commencing on
, and on the Loan Maturity Date or, if applicable, the date on
which the entire principal balance of this Note is earlier
prepaid, at the rate of % per annum (calculated on the
basis of a 365 day year for the actual days elapsed).
All payments made on the account of the principal of this
Note shall be recorded by Enterprises on a schedule which by this
reference is incorporated herein and made a part of this Note.
The unpaid principal amount of this Note may be prepaid, in
whole at any time or in part from time to time, without premium
or penalty.
In the event that Entergy SASI shall fail to pay any
interest on the unpaid principal amount of this Note when and as
the same shall become due and payable, then, Enterprises may (i)
by notice in writing to Entergy SASI declare the unpaid principal
amount of this Note, and accrued interest thereon to be, and the
same shall thereupon become forthwith, due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, and (ii) exercise any other
remedies available to it, at law or in equity.
This Note shall be governed by, and construed in accordance
with, the laws of the State of Arkansas.
ENTERGY SYSTEMS AND SERVICE, INC.
By:
Title:
<PAGE>
SCHEDULE
PAYMENTS OF PRINCIPAL
Amount of Unpaid
Principal Principal Notation
Date Paid this Date Balance Made By
EXHIBIT F
May 31, 1995
Securities and Exchange Commission
450 Fifth Avenue
Washington, D. C. 20549
Re: Entergy Corporation
Entergy Enterprises, Inc.
Entergy Systems and Service, Inc.
File No. 70-8509
Dear Sirs:
With respect to the Application-Declaration on Form U-
1, as amended ("Application-Declaration") of Entergy
Corporation ("Entergy"), Entergy Enterprises, Inc.
("Enterprises") and Entergy Systems and Service, Inc.
("Entergy SASI"), contemplating, among other things, (1)
Entergy SASI providing consulting services relating to
energy management and demand side management ("DSM")
activities; (2) Entergy SASI providing funding for the
implementation of energy conservation measures by other
energy management and DSM contractors, (3) Entergy making
additional equity investments in Enterprises through any
combination of acquisitions of Enterprises' common stock
("Enterprises Stock") and/or capital contributions to
Enterprises and Enterprises issuing and selling to Entergy
any such shares of Enterprises Stock, (4) Enterprises making
additional equity investments in Entergy SASI, through any
combination of acquisitions of Entergy SASI's common stock
("Entergy SASI Stock") and/or capital contributions to
Entergy SASI, and/or loans to Entergy SASI through the
acquisition of one or more notes issued by Entergy SASI
("Entergy SASI Notes"), and Entergy SASI issuing and selling
to Enterprises any such shares of Entergy SASI Stock
and/or issuing any such Entergy SASI Notes to Enterprises,
(5) Entergy SASI issuing commercial paper, promissory notes
and/or other debt securities to non-affiliated third parties
("Entergy SASI Debt Securities), and (6) Entergy SASI
conducting its authorized business activities outside the
"Base Region" without regard to the "50% Revenue
Restriction" (as such terms are defined in the Application-
Declaration), all as more fully described in said
Application-Declaration, this is to advise you, that in my
opinion:
1. Enterprises and Entergy SASI are corporations validly
organized and existing under the laws of the States of
Louisiana and Delaware, respectively.
2. When (i) the Application-Declaration shall have been
granted and permitted to be effective, (ii) appropriate
action shall have been taken by the boards of directors of
Entergy, Enterprises and Entergy SASI, (iii) any Entergy
SASI Notes or Entergy SASI Debt Securities issued pursuant
to the order of the Commission shall have been duly executed
and delivered by Entergy SASI, and (iv) the proposed
transactions shall have been consummated in accordance with
the Application-Declaration, and the order of the Securities
and Exchange Commission ("Commission") with respect thereto:
(a) All state laws applicable to the participation of
Entergy, Enterprises and Entergy SASI in the proposed
transactions will have been complied with;
(b) Any Enterprises Stock or Entergy SASI Stock
issued pursuant to the order of the Commission will be
validly issued, fully paid and non-assessable, and the
holders thereof will be entitled to the rights and
privileges appertaining thereto in the respective
charters of Enterprises and Entergy SASI (provided that
the number of shares of Enterprises Stock or
Enterprises SASI Stock issued does not at that time
exceed the number of shares of such Stock which is
authorized under the charters of Enterprises and
Entergy SASI, respectively, and not previously issued);
(c) Any Entergy SASI Notes and Entergy SASI Debt
Securities issued pursuant to the order of the
Commission will be valid and binding obligations of
Entergy SASI in accordance with their terms;
(d) Entergy will have legally acquired any
Enterprises Stock that may be issued pursuant to the
order of the Commission;
(e) Enterprises will have legally acquired any
Entergy SASI Stock or Entergy SASI Notes that may be
issued pursuant to the order of the Commission; and
(f) The consummation of the proposed transactions by
Entergy, Enterprises and Entergy SASI will not violate
the legal rights of the holders of any securities
issued by Entergy, Enterprises or Entergy SASI or any
associate company thereof.
I am a member of the Louisiana Bar, the Virginia
Bar and the Texas Bar and do not hold myself out as an
expert in the laws of any other State.
I hereby consent to the use of this opinion as an
exhibit to the Application-Declaration.
Sincerely,
/s/ Laurence M. Hamric
Laurence M. Hamric
LMH/aj
