As filed with the Securities and Exchange Commission on January 28, 2000
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________________
Entergy New Orleans, Inc.
(Exact name of registrant as specified in its charter)
_________________________
State of Louisiana 72-0273040
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
1600 Perdido Street
New Orleans, Louisiana 70119
(504) 670-3600
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
_________________________
DANIEL F. PACKER STEVEN C. MCNEAL
President Vice President and Treasurer
Entergy New Orleans, Inc. Entergy New Orleans, Inc.
1600 Perdido Street 639 Loyola Avenue
New Orleans, Louisiana 70119 New Orleans, Louisiana 70113
(504) 670-3600 (504) 576-4363
LAURENCE M. HAMRIC, Esq. JOHN HOOD, Esq.
Entergy Services, Inc. Thelen Reid & Priest LLP
639 Loyola Avenue 40 West 57th Street
New Orleans, Louisiana 70113 New York, New York 10019
(504) 576-2095 (212) 603-2144
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
___________________________
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of the
Registration Statement.
___________________________
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
[ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
___________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Amount to Maximum Maximum Amount of
Class of be Offering Aggregate Registration
Securities to be Registered Price Offering Fee
Registered Per Unit* Price*
General and Refunding
Mortgage Bonds $140,000,000 100% $140,000,000 $36,960
designated as
First Mortgage
Bonds.....
* Estimated solely for the purpose of calculating the
registration fee, pursuant to Rule 457(o).
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429, the prospectus filed as a part of this
registration statement is being filed as a combined prospectus
with respect to $10,000,000 aggregate principal amount of General
and Refunding Mortgage Bonds remaining unsold in Registration
Statement No. 333-00255.
The information in this prospectus is not complete and may be
changed. The Registrant may not sell these securities until the
registration statement filed with the SEC becomes effective.
This prospectus is not an offer to sell these bonds or a
solicitation of an offer to buy these bonds in any state where
such an offer or sale is not permitted.
<PAGE>
Subject to completion
Dated January 28, 2000
PROSPECTUS
$150,000,000
General and Refunding Mortgage Bonds
ENTERGY NEW ORLEANS, INC.
1600 Perdido Street
New Orleans, Louisiana 70119
(504) 670-3600
Entergy New Orleans, Inc. (sometimes referred to as
the Company) -
- May periodically offer its General and Refunding
Mortgage Bonds in one or more series;
- Will determine the price and terms when sold.
The Bonds -
- Offered with this prospectus are General and
Refunding Mortgage Bonds designated as First Mortgage
Bonds;
- Offered with this prospectus will be rated in
one of the four highest rating categories by at least
one nationally recognized rating organization;
- Will be issued as part of a designated series;
and
- Will be issued in book-entry form.
Bondholders -
- Will receive dividend payments in the amounts
and on the dates specified in an accompanying
prospectus supplement.
This prospectus may be used to offer and sell series of bonds
only if accompanied by the prospectus supplement for that series.
Entergy New Orleans will provide the specific terms of each
series of bonds in a supplement to this prospectus. Such
supplement may also add, update, change or delete information in
this prospectus.
You should read this prospectus and any supplement carefully
before you invest.
Neither the Securities and Exchange Commission (SEC) nor any
state securities commission has approved or disapproved of these
bonds or determined that this prospectus is accurate or complete.
Any representation to the contrary is a criminal offense.
January ____, 2000
About this Prospectus
This prospectus is part of a registration statement filed
with the SEC utilizing a "shelf" registration process. Under
this shelf process, the Company may, sell the securities
described in this prospectus in one or more offerings up to a
total dollar amount of $150,000,000. The Company is registering
$140,000,000 of bonds currently, which will be offered along with
$10,000,000 of Bonds registered under a previously filed
registration statement. This prospectus provides a general
description of the Bonds being offered. Each time the Company
sells a series of Bonds, it will provide a prospectus supplement
containing specific information about the terms of that series of
Bonds and the offering.
Where You Can Find More Information
The Company is required to file annual, quarterly and
current reports, proxy statements and other information with the
SEC. These filings are available to the public on the Internet
at the SEC's home page (http://www.sec.gov) or you may read and
copy any document at the SEC Public Reference Rooms located at:
450 Fifth Street, N.W.,
Room 1024,
Washington, D.C. 20549-1004;
CitiCorp Center
500 W. Madison Street
Suite 1400,
Chicago, Illinois 60661
7 World Trade Center
13th Floor
New York, New York 10048.
Call the SEC at 1-800-732-0330 for more information about the
public reference rooms and requesting documents.
The SEC allows the Company to incorporate by reference
information filed by the Company, which means that we can refer
you to important information without restating it in this
prospectus. The information incorporated by reference is an
important part of this prospectus, and information that the
Company files later with the SEC will automatically update and
supersede this information. The Company is incorporating by
reference the documents listed below, along with filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus
and until the Company has sold all of the bonds:
1. Annual Report on Form 10-K for the year ended December 31,
1998;
2. Quarterly Reports on Form 10-Q for the quarters ended March
31, June 30, and September 30, 1999;
You may request a copy of any or all of these filings, free
of charge, by writing or telephoning the Company at the following
address:
Mr. Christopher T. Screen
Assistant Secretary
Entergy New Orleans, Inc.
P. O. Box 61000
New Orleans, Louisiana 70161
(504) 576-4212
or at our web site (http://www.entergy.com). You may also direct
your requests via e-mail to [email protected].
You should rely only on the information incorporated by
reference or provided in this prospectus or any prospectus
supplement. The Company has not authorized anyone else to
provide you with information about the Bonds or the Company. The
Company is not making an offer of the bonds in any state where
the offer is not permitted. You should not assume that the
information in this prospectus or any supplement is accurate as
of any date other than the date on the front of those documents.
_______
The Company
Entergy New Orleans, Inc. is an electric and gas public
utility company providing services to customers in New Orleans,
Louisiana since 1926.
The Company is owned by Entergy Corporation ("Entergy"),
which is a public utility holding company registered under the
Public Utility Holding Company Act of 1935. The other major
public utilities owned by Entergy are Entergy Arkansas, Inc.,
Entergy Gulf States, Inc., Entergy Louisiana, Inc. and Entergy
Mississippi, Inc. Entergy also owns all of the common stock of
System Energy Resources, Inc., the principal asset of which is
the Grand Gulf Nuclear Electric Generating Station ("Grand
Gulf").
Capacity and energy from Grand Gulf is allocated among the
Company, Entergy Arkansas, Inc., Entergy Louisiana, Inc., and
Entergy Mississippi, Inc. under a Unit Power Sales Agreement.
The Company's allocated share of Grand Gulf's capacity and
energy, together with related costs, is 17%. Payments made by
the Company under the Unit Power Sales Agreement are generally
recovered through rates set by the City Council of the City of
New Orleans, Louisiana (the "Council"), which regulates electric
and gas service, rates and charges and issuances of securities.
Together with Entergy Arkansas, Inc., Entergy Louisiana,
Inc. and Entergy Mississippi, Inc., the Company owns all of the
capital stock of System Fuels, Inc. System Fuels, Inc. is a
special purpose company that implements and maintains certain
programs for the purchase, delivery and storage of fuel supplies
for Entergy's utility subsidiaries.
The information above concerning the Company is only a
summary and is not complete. You should read the incorporated
documents for more specific information regarding significant
contingencies, capital requirements, and financing plans and
capabilities, including short-term borrowing capacity, earnings
coverage requirements under the Company's Restatement of Articles
of Incorporation, as amended, which limit the amount of
additional preferred stock that the Company may issue, and
earnings coverage and other requirements under the Company's
General and Refunding Mortgage (the G&R Mortgage), which limit
the amount of additional Bonds that the we may issue.
Use of Proceeds
The net proceeds from the offering of the Bonds will be used
either to repay, acquire or redeem one or more series of
outstanding G&R Bonds or preferred securities on their stated due
dates or in some cases prior to their due dates, or for other
general corporate purposes including the repayment of short term
debt incurred in connection with the Company's capital spending
program. The specific securities, if any, to be redeemed with
the proceeds of a series of bonds will be set forth in the
prospectus supplement relating to that series.
Description of the Bonds
General.
The Bonds will be issued under one or more separate supplemental
indentures to the Mortgage and Deed of Trust dated as of May 1,
1987 (the "G&R Mortgage") between the Company and Harris Trust
Company of New York (formerly The Bank of Montreal Trust
Company), as Corporate Trustee and Mark F. McLaughlin, as Co-
Trustee (together referred to as the "Trustees"). All bonds
issued or to be issued under the Mortgage (including the Bonds)
are referred to herein generally as "G&R Bonds."
The statements in the Prospectus concerning the Bonds, the
G&R Bonds and the G&R Mortgage are not comprehensive and are
subject to the detailed provisions of the G&R Mortgage.
The Company's Mortgage and Deed of Trust, dated as of July
1, 1944, to The Chase National Bank of the City of New York (The
Bank of New York, successor) and Carl E. Buckley (W.T.
Cunningham, successor), as Trustees, as supplemented (the "Former
Mortgage"), has been terminated and released. All of the
Company's mortgage bonds (the "Former First Mortgage Bonds")
issued under the Former Mortgage have been retired and cancelled.
The G&R Mortgage provides generally that, once all of the Former
First Mortgage Bonds have been retired, the G&R Bonds may be
designated as "First Mortgage Bonds" of the Company. Because the
Former Mortgage has been terminated and released and all Former
First Mortgage Bonds have been retired and cancelled, all G&R
Bonds will be designated as "First Mortgage Bonds".
Terms of Specific Series of the Bonds.
A prospectus supplement and a supplemental indenture relating
to each series of Bonds being offered by the Company will include
descriptions of specific terms relating to the offering of that
series. These terms will include some or all of the following:
- The designation (or name) of the series of Bonds;
- The aggregate principal amount of the series;
- The date on which the series will mature;
- The interest rate the series will bear;
- The date from which interest accrues;
- The dates on which interest will be payable; and
- The prices and other terms and conditions, if any, upon
which the series may be redeemed prior to maturity.
Security.
The Bonds, together with all other G&R Bonds issued now or
in the future under the G&R Mortgage, will be secured by the G&R
Mortgage. As a result of the termination and release of the
Former Mortgage, the G&R Mortgage now constitutes, in the opinion
of the Company's legal counsel, a first mortgage lien on
substantially all of the Company's property, subject to (1)
excepted encumbrances, (2) minor defects and encumbrances
customarily found in similar utility properties, but which do not
materially impair the use of the property in the conduct of the
Company's business, and (3) other liens, defects and
encumbrances, if any, existing or created when the Company
acquired the property and (4) limitations under bankruptcy law.
Some of the Company's properties are not covered by the lien
of the G&R Mortgage; these include:
- properties released under the terms of the G&R Mortgage;
- cash and securities;
- merchandise, equipment, apparatus, materials or supplies
held for sale or other disposition in the usual course of
business or consumable during use;
- automobiles, vehicles and aircraft;
- timber, minerals, mineral rights and royalties; and
- receivables, contracts, leases and operating agreements.
The G&R Mortgage contains provisions that impose a lien on
property acquired by the Company after the date of the G&R
Mortgage, subject to pre-existing liens, and subject to
limitations in the case of consolidation, merger or a sale of
substantially all of the Company's assets.
The G&R Mortgage also provides that the Trustees have a lien
upon the mortgaged property, prior to the lien in favor of
holders of the G&R Bonds, to ensure the payment of reasonable
compensation, expenses and disbursements of the Trustees and for
indemnity against certain liabilities.
Issuance of Additional G&R Bonds.
The Company can issue up to $10 billion G&R Bonds under the
G&R Mortgage. G&R Bonds of any series may be issued from time to
time on the following bases: (a) 70% of property additions after
adjustments to offset retirements; (b) retirements of G&R Bonds
or certain First Mortgage Bonds; or (c) the deposit of cash with
the Trustees. Deposited cash may be withdrawn upon the bases
stated in clause (a) and (b) above. Property additions generally
include electric, gas, steam or hot water property acquired after
December 31, 1986. Property additions do not include securities,
automobiles, vehicles or aircraft, or property used principally
for the production or gathering of natural gas.
With certain exceptions, when G&R Bonds are issued on the
basis of retired G&R Bonds as described in clause (b) above, the
issuance must meet an "earnings" test. The adjusted net earnings
for 12 of the preceding 18 months, before income taxes, must be
at least twice the annual interest requirements on all G&R Bonds
outstanding at the time, plus the G&R Bonds to be issued, plus
all indebtedness, if any, of prior rank. Generally, interest on
variable interest rate bonds, if any, is calculated using the
average rate in effect during such 12-month period.
Net property additions available for the issuance of G&R
Bonds at September 30, 1999 were approximately $164.6 million.
The G&R Mortgage contains restrictions on the issuance of
G&R Bonds against property subject to prior liens.
Other than the security afforded by the lien of the G&R
Mortgage and the restrictions on the issuance of additional G&R
Bonds described above, the G&R Mortgage contains no provisions
that grant protection to bondholders in the event of a highly
leveraged transaction. However, such a transaction would require
regulatory approval from the Council.
Release and Substitution of Property.
Property other than the Municipalization Interest (as
defined in the G&R Mortgage) may be released without applying any
earnings test, upon the bases of (a) the deposit with the
Trustees of cash or, to a limited extent, purchase money
mortgages; (b) property additions under the G&R Mortgage, after
adjustments in certain cases to offset retirements and after
making adjustments for certain prior lien bonds, if any,
outstanding against property additions; and (c) a waiver of the
right to issue G&R Bonds. The Company can withdraw cash upon the
bases stated in clause (b) and (c) above.
Property owned by the Company on December 31, 1986, may be
released from the lien of the G&R Mortgage on the basis of its
depreciated book value. Unfunded property may be released
without meeting the earnings test if, after its release, the
Company would have at least one dollar ($1) in unfunded property
that remains subject to the lien of the G&R Mortgage. All other
property may be released on the basis of its cost, as defined in
the G&R Mortgage.
Satisfaction and Discharge of G&R Mortgage.
Once the Company has provided for the payment of all G&R
Bonds (including the Bonds currently being issued under this
Prospectus) and has paid all other sums due under the G&R
Mortgage, the G&R Mortgage may be deemed satisfied and
discharged. The G&R Bonds will be considered paid once funds
(which may be cash or obligations of the United States of America
that do not permit redemption at the issuer's option) sufficient
to pay the G&R Bonds at maturity or upon redemption have been
irrevocably set apart or deposited with the Trustees. The
Trustees are entitled to receive an opinion of legal counsel to
the effect that such setting apart or deposit does not require
registration under the Investment Company Act of 1940, does not
violate any applicable laws and does not result in a taxable
event with respect to the bondholders prior to the time when they
have a right to receive payment.
Dividend Covenant.
Unless otherwise specified in a prospectus supplement, so
long as any bonds of a particular series remain outstanding, the
Company will not pay any cash dividends on common stock or
repurchase common stock after a selected date close to the date
of the original issuance of a series of Bonds, except from
credits to retained earnings accrued after such selected date
plus an amount not to exceed $150,000,000 and plus such
additional amounts as shall be approved by the SEC under the
Public Utility Holding Company Act of 1935. This does not
include dividends that may be declared before such selected date.
Redemption and Purchase.
General
The prospectus supplement for a particular series of Bonds
will contain the terms and conditions, if any, for redemption
prior to maturity.
Exchange or Redemption upon Merger or Consolidation.
Although the Company does not currently have any plans to
merge or consolidate with Entergy Louisiana, Inc., the G&R
Mortgage provides that, in the event of such a merger or
consolidation, the Company would have the right to offer to
exchange all outstanding G&R Bonds for a like principal amount of
the new merged or consolidated company's first mortgage bonds
with the same interest rates, interest payment dates, maturity
dates and redemption provisions. Unless the Company waives this
right, the holders of outstanding G&R Bonds either must accept
such first mortgage bonds in exchange for all or a portion of
their G&R Bonds or must tender to the Company for redemption any
G&R Bonds not so exchanged. The redemption price applicable for
these purposes to the Bonds will be 100% of the principal amount
plus accrued interest, unless otherwise provided in a prospectus
supplement.
Defaults and Notice Thereof.
Defaults under the G&R Mortgage are defined to include:
(1) default in the payment of principal;
(2) default for 30 days in the payment of interest;
(3) certain events of bankruptcy, insolvency or reorganization;
(4) the continuation of a default in other covenants for 90 days
after notice (unless the Company has in good faith commenced
efforts to perform the covenant); and
(5) default under a supplemental indenture.
The Trustees or the holders of 25% in aggregate principal
amount of the G&R Bonds may declare the principal and interest
thereon to be due and payable on default. However, a majority of
the holders may annul such declaration if the Company has cured
the default. No holders of G&R Bonds may enforce the lien of the
G&R Mortgage without giving the Trustees written notice of a
default and unless
a) the holders of 25% in aggregate principal amount of the G&R
Bonds have requested the Trustees to act and offered them
reasonable opportunity to act and indemnity satisfactory to them
against the cost, expense and liabilities to be incurred thereby;
and
b) the Trustees have failed to act.
The holders of a majority in aggregate principal amount of the
G&R Bonds may direct the time, method and place of conducting any
proceedings for any remedy available to the Trustees or
exercising any trust or power conferred upon the Trustees. The
Trustees are not required to risk their funds or incur personal
liability if a reasonable ground exists for believing that
repayment is not reasonably assured.
Evidence Furnished to the Trustee.
Compliance with G&R Mortgage provisions is evidenced by
written statements of the Company's officers or persons selected
or paid by the Company. In certain cases, opinions of counsel
and certifications by an engineer, accountant, appraiser or other
expert (who in some cases must be independent) are required. The
Company provides to the Trustees an annual statement as to
whether or not we have fulfilled our obligations under the G&R
Mortgage throughout the preceding calendar year.
Modification.
The rights of holders of G&R Bonds may be modified with the
consent of the holders of a majority in aggregate principal
amount of the G&R Bonds. If less than all series of G&R Bonds
are adversely affected by a modification, the consent of the
holders of a majority in aggregate principal amount of the G&R
Bonds adversely affected is required. No modification of the
terms of payment of the principal of and, premium, if any, and
interest on, the G&R Bonds, and no modification affecting the
lien of the G&R Mortgage or reducing the percentage required for
modification, is effective against any holder of G&R Bonds
without such holder's consent.
Book-Entry System Bonds.
Unless otherwise specified in the applicable prospectus
supplement, The Depository Trust Company, New York, New York
("DTC") will act as securities depository for the Bonds. The
Bonds will be issued only as fully registered securities
registered in the name of Cede & Co., DTC's nominee or such other
name as may be requested by an authorized representative of DTC.
One fully-registered certificate will be issued for each series
of Bonds, representing the aggregate principal amount of that
series of Bonds, and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC holds securities that its participants
("Direct Participants") deposit with DTC. DTC also facilitates
the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited
securities through electronic computerized records for Direct
Participants' accounts. This eliminates the need for physical
movement of securities certificates.
Direct Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its Direct
Participants and the New York Stock Exchange, Inc., the American
Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to
others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly (the
"Indirect Participants," and together with the Direct
Participants, the "Participants"). The rules applicable to DTC
and its Participants are on file with the SEC.
Purchases of Bonds within the DTC system must be made by or
through Direct Participants which will receive a credit for the
Bonds on DTC's records. The ownership interest of each actual
purchaser of a Bond (a "Beneficial Owner") will, in turn, be
recorded on the Direct and Indirect Participant's respective
records. Beneficial Owners will not receive written confirmation
from DTC of their purchases, but Beneficial Owners are expected
to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Bonds are to be accomplished by
entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive
certificates representing the Bonds, except in the event that the
use of the book-entry system for the Bonds is discontinued.
To facilitate subsequent transfers, all Bonds deposited by
Direct Participants with DTC are registered in the name of DTC's
nominee, Cede & Co., or such other name as may be requested by an
authorized representative of DTC. The deposit of the Bonds with
DTC and their registration in the name of Cede & Co. or such
other nominee do not effect any change in beneficial ownership.
DTC has no knowledge of actual beneficial ownership of the Bonds;
DTC's records reflect only the identity of the Direct
Participants to whose accounts Bonds are credited, which Direct
Participants may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Giving of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants,
and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements that may be
applicable. Beneficial Owners of the Bonds may wish to take
certain steps to augment transmission to them of notices of
significant events with respect tot he securities, such as
redemptions, tenders, defaults and proposed amendments to the
security documents. Beneficial Owners of the Bonds may wish to
ascertain that the nominee holding the Bonds for their benefit
ahs agreed to obtain and transmit notices to Beneficial Owners,
or in the alternative, Beneficial Owners may wish to provide
their names and addresses to the registrar and request copies of
the notices be provided directly to them.
Redemption notices (if any) will be sent to Cede & Co. If
less than all of the Bonds of a particular series are being
redeemed, DTC's practice is to determine by lot the amount of the
interest of each Direct Participant in such series to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect
to the Bonds. Under its usual procedures, DTC mails an omnibus
proxy (an "Omnibus Proxy") to the participants as soon as
possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to
whose accounts the Bonds are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Payments of the principal of, premium, if any, and interest
on the Bonds will be made to DTC, or such other nominee as may be
requested by an authorized representative of DTC. DTC's practice
is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown
on DTC's records. Payments by Participants to Beneficial Owners
will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts
of customers in bearer form or registered in "street-name," and
will be the responsibility of such Participant and not of DTC,
the underwriters, dealers or agents, or the Company, subject to
any statutory or regulatory requirements that may be in effect
from time to time. Payment of principal, premium, if any, and
interest to DTC is the responsibility of the Company or that of
the Trustees. Disbursement of such payments to Direct
Participants is the responsibility of DTC, and disbursement of
such payments to the Beneficial Owners is the responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as securities
depository with respect to the Bonds at any time by giving
reasonable notice to the Company. Under such circumstances and
in the event that a successor securities depository is not
obtained, certificates for the Bonds are required to be printed
and delivered. In addition, the Company may discontinue use of
the system of book-entry transfers through DTC (or a successor
securities depository) at any time. In that event, certificates
for the Bonds will also be printed and delivered.
The Company will not have any responsibility or obligation
to Participants or the persons for whom they act as nominees with
respect to the accuracy of the records of DTC, its nominee or any
Direct or Indirect Participant with respect to any ownership
interest in the Bonds, or with respect to payments to, or
providing of notice to, the Direct Participants, the Indirect
Participants or the Beneficial Owners.
So long as Cede & Co. is the registered owner of any series
of Bonds, as nominee of DTC, references herein to holders of such
series of Bonds shall mean Cede & Co. or DTC and shall not mean
the Beneficial Owners of the Bonds.
DTC management is aware that some computer applications,
systems and the like for processing data ("Systems") that are
dependent upon calendar dates, including dates after January 1,
2000, may encounter "Year 2000 problems." DTC has informed its
Participants and other members of the financial community that it
has developed and is implementing a program so that its Systems,
as the same relate to the timely payment of distributions
(including principal and income payments) to security holders,
book entry, deliveries, and settlement of trades within DTC,
continue to function appropriately. This program includes a
technical assessment and a remediation plan, each of which is
complete. Additionally, DTC's plan includes a testing phase,
which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is
also dependent upon other parties, including but not limited to
issuers and their agents, as well as third party vendors from
whom DTC licenses software and hardware, and third party vendors
on whom DTC relies for information or the provision of services,
including telecommunication and electrical utility service
providers, among others. DTC has informed the financial
community that it is contacting (and will continue to contact)
third party vendors from whom DTC acquires services to: (a)
impress upon them the importance of such services being Year 2000
compliant and (b) determine the extent of their efforts for Year
2000 remediation (and, as appropriate, testing) of their
services. In addition, DTC is in the process of developing such
contingency plans as it deems appropriate.
DTC has established a Year 2000 Project Office and will
provide information concerning DTC's Year 2000 compliance to
persons requesting that information. The address is as follows:
The Depository Trust Company
Year 200 Project Office
55 Water Street
New York, New York 10041
(212) 855-8068 or
(212) 855-8881
In addition, information concerning DTC's Year 2000 compliance
can be obtained from its web site at the following address:
(http://www.dtc.org).
According to DTC, the foregoing information with respect to
DTC has been provided to the financial community for
informational purposes only and is not intended to serve as a
representation, warranty or contract modification of any kind.
The information in this section concerning DTC, its Year
2000 efforts and its book-entry system has been obtained form
DTC. Neither the Company, the Trustees nor the underwriters,
dealers or agents takes responsibility for its accuracy or
completeness.
Ratios of Earnings to Fixed Charges
The Company's ratios of earnings to fixed charges,
calculated pursuant to Item 503 of SEC Regulation S-K, are as
follows:
Twelve Months Ended
September December 31,
30,
1999 1998 1997 1996 1995 1994
3.65 2.65 2.70 3.51 3.93 1.91
_______
"Earnings," as defined by Regulation S-K, represent the aggregate
of (1) income before the cumulative effect of an accounting
change, (2) taxes based on income, (3) investment tax credit
adjustments-net and (4) fixed charges.
"Fixed Charges" include interest (whether expensed or
capitalized), related amortization and interest applicable to
rentals charged to operating expenses.
Experts and Legality
The financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K of the Company for
the year ended December 31, 1998 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in
auditing and accounting.
The legality of the bonds will be passed upon for the
Company by Laurence M. Hamric, Associate General Counsel -
Corporate and Securities, of Entergy Services, Inc. and for any
underwriters, dealers or agents by Winthrop, Stimson, Putnam &
Roberts, New York, New York. All legal matters pertaining to the
Company's organization, titles to property, franchises and the
lien of the G&R Mortgage and all matters pertaining to Louisiana
law will be passed upon by Laurence M. Hamric.
The statements in this Prospectus as to matters of law and
legal conclusions made under "Description of the Bonds" have been
reviewed by Laurence M. Hamric, and are set forth herein in
reliance upon the opinion of said counsel and upon his authority
as an expert.
Plan of Distribution
Methods and Terms of Sale
The Company may use any variety of methods to sell the
Bonds. These include sales:
(a) through one or more underwriters or dealers;
(b) directly to one or more purchasers;
(c) through one or more agents; or
(d) through a combination of any such methods of sale.
The prospectus supplement relating to a series of the Bonds will
set forth the terms of the offering of the Bonds, including
- the name or names of any underwriters, dealers or agents;
- the initial public offering price of such Bonds;
- the proceeds to the Company from such sale;
- any underwriting discounts and other items constituting
underwriters' compensation; and
- any discounts or concessions allowed or reallowed or paid by
any underwriters to dealers.
Underwriters
If the Company sells the Bonds through underwriters, the
underwriters will acquire the Bonds for their own account and may
resell them from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The
underwriters for a particular underwritten offering of Bonds will
be named in the applicable prospectus supplement and, if an
underwriting syndicate is used, the managing underwriter or
underwriters will be named on the cover page. In connection with
the sale of Bonds, the underwriters may receive compensation from
the Company or from purchasers in the form of discounts,
concessions or commissions. The obligations of the underwriters
to purchase the Bonds will be subject to certain conditions. The
underwriters will be obligated to purchase all of the Bonds f a
particular series if any are purchased. However, the
underwriters may purchase less than all of the securities of a
particular series should certain circumstances involving a
default of one or more underwriters occur.
Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers by any
underwriters may be changed from time to time.
Stabilizing Transactions
Any underwriters may engage in stabilizing transactions and
syndicate covering transactions in accordance with Rule 104 under
the Securities Exchange Act of 1934. Stabilizing transactions
permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Syndicate
covering transactions involve purchases of the Bonds in the open
market after the distribution has been completed in order to
cover syndicate short positions. Such stabilizing transactions
and syndicate covering transactions may cause the price of the
Bonds to be higher than it would be if such transactions had not
occurred.
Agents
If the Company sells the Bonds through agents, the
applicable Prospectus Supplement will set forth the name of any
agent involved in the offer or sale of the Bonds, as well as any
commissions the Company will pay to them. Unless otherwise
indicated in the Prospectus Supplement, any agent will be acting
on a best efforts basis for the period of its appointment.
In a prospectus supplement, the Company may authorize
agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Bonds at the public offering
price set forth in the prospectus supplement pursuant to delayed
delivery contracts with payment and delivery on a specified date
in the future. The terms and conditions governing these
contracts and any commission the Company pays for solicitation of
these contracts will be included in the prospectus supplement.
Indemnification
The Company will agree to indemnify any underwriters,
dealers, agents or purchasers and their controlling persons
against certain civil liabilities, including liabilities under
the Securities Act of 1933, as amended.
<PAGE>
Table of Contents
About this Prospectus 1
Where You Can Find More Information 1
The Company 2
Use of Proceeds 2
Description of the Bonds 3
General 3
Terms of Specific Series of the Bonds 3
Security 3
Issuance of Additional G&R Bonds 4
Release and Substitution of Property 5
Satisfaction and Discharge of G&R
Mortgage 5
Dividend Covenant 5
Redemption and Purchase 5
General 5
Exchange or Redemption
Upon Merger 5
Defaults and Notice thereof 6
Evidence Furnished to Trustees 6
Modification 6
Book-Entry System Bonds 7
Ratios to Fixed Earnings 10
Experts and Legality 10
Plan of Distribution 10
Methods and Terms of Sale 10
Underwriters 11
Stabilizing Transactions 11
Agents 11
Indemnification 12
<PAGE>
PART II
INFORMATION NOT REQUIRED INPROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Each
Initial Additional
Sale Sale
Filing Fees-Securities and Exchange Commission:
Registration Statement $ 36,960 $ N/A
*Rating Agencies' fees 25,000 25,000
*Trustee's fees 2,500 2,500
*Fees of Company's Outside Legal Counsel:
Thelen Reid & Priest LLP 35,000 25,000
*Fees of Entergy Services, Inc. 35,000 25,000
*Accounting fees 12,000 6,000
*Printing and engraving costs 25,000 15,000
*Miscellaneous expenses (including Blue- 20,000 15,000
Sky expenses) ---------- -----------
*Total Expenses $ 191,460 $ 113,500
___________________ ========== ===========
* Estimated
Item 15. Indemnification of Directors and Officers.
The Company has insurance covering its expenditures that
might arise in connection with its lawful indemnification of its
directors and officers for certain of their liabilities and
expenses. Directors and officers of the Company also have
insurance that insures them against certain other liabilities and
expenses. The corporation laws of Louisiana permit
indemnification of directors and officers in a variety of
circumstances, which may include liabilities under the Securities
Act of 1933, as amended (the "Securities Act"), and under the
Company's Restatement of Articles of Incorporation, as amended.
Its officers and directors may generally be indemnified to the
full extent of such laws.
Item 16. List of Exhibits.*
**1 Form of Underwriting Agreement(s) for the Bonds.
(filed as Exhibit 1 to the Company's Registration
Statement on Form S-3, File No. 333-00255)
3(a) Amended and Restated Articles of Incorporation
3(b) By-laws as amended as of November 26, 1999 and
presently in effect.
**4(a) Mortgage and Deed of Trust, as amended by seven
Supplemental Indentures (filed, respectively, as
Exhibits in the file numbers indicated): A-2(c) to
Rule 24 Certificate in 70-7350 (Mortgage); A-5(b)
to Rule 24 Certificate in 70-7350 (First); A-4(b)
to Rule 24 Certificate in 70-7448 (Second); 4(b)4
to Form 10-K for year ended 1992 in 0-5807 (Third);
4(a) to Form 10-Q for the quarter ended September
30, 1993 in 0-5807 (Fourth); 4(a) to Form 8-K
dated April 26, 1995 in 0-5807 (Fifth); 4(a) to
Form 8-K dated March 20, 1996 in 0-5807 (Sixth);
and 4(b)to Form 10-Q, for the quarter ended June
30, 1998 (Seventh).
**4(b) Form of Supplemental Indenture for the Bonds.
(filed as Exhibit 4(b) to the Company's
Registration Statement on Form S-3, File No. 333-
00255).
5(a) Opinion of Laurence M. Hamric, Associate General
Counsel - Corporate and Securities, of Entergy
Services, Inc., as to the legality of the
securities being registered.
**12(a) Computation of Ratios of Earnings to Fixed Charges
(filed as Exhibit 12(e) to the Company's Annual
Report on Form 10-K for the year ended December 31,
1998).
**12(b) Computation of Ratios of Earnings to Fixed Charges
(filed as Exhibit 99(e) to the Company's Quarterly
Report on Form 10-Q for the period ended September
30, 1999).
23(a) Consent of Laurence M. Hamric, Esq. (included in
Exhibit 5(a) hereto).
23(b) Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included herein at page S-1).
25(a) Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of Harris Trust
Company of New York, Corporate Trustee.
25(b) Form T-2 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of Mark F.
McLaughlin, Co-Trustee.
___________________
* Reference is made to a duplicate list of exhibits being filed
as a part of the Registration Statement, which list, in
accordance with Item 102 of Regulation S-T of the SEC,
immediately precedes the exhibits being physically filed with
the Registration Statement.
** Incorporated herein by reference as indicated.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of New Orleans, State of Louisiana, on the 27th day of
January 2000.
ENTERGY NEW ORLEANS, INC.
By: /s/ Steven C. McNeal
Steven C. McNeal
Vice President and Treasurer
Each director and/or officer of the registrant whose
signature appears below has appointed Steven C. McNeal and
Laurence M. Hamric, and each of them severally, as his attorney-
in-fact to sign in his name and behalf, in any and all capacities
stated below, and to file with the Securities and Exchange
Commission, any and all amendments, including post-effective
amendments, to this registration statement, and the registrant
hereby also has appointed each such named person as its attorney-
in-fact with like authority to sign and file any such amendments
in its name and behalf.
Signature Title Date
/s/ Daniel F. Packer Chairman of the Board, President January 25, 2000
Daniel F. Packer and Chief Executive Officer
(Principal Executive Officer)
/s/ C. John Wilder Director, Executive Vice President January 25, 2000
C. John Wilder and Chief Financial Officer
(Principal Financial Officer)
/s/ Donald C. Hintz Director January 25, 2000
Donald C. Hintz
/s/ Nathan E. Langston Vice President and January 26, 2000
Nathan E. Langston Chief Accounting Officer
(Principal Accounting Officer)
<PAGE>
EXHIBIT 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our reports dated February
18, 1999, relating to the financial statements and financial
statement schedule, which appear in Entergy New Orleans, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to us under the heading "Experts
and Legality" in such Registration Statement.
PricewaterhouseCoopers LLP
New Orleans, Louisiana
January 28, 2000
Effective November 15, 1999
Exhibit 3(a)
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ENTERGY NEW ORLEANS, INC.
FIRST: The name of the Corporation shall be "ENTERGY NEW
ORLEANS, INC.", and said Corporation shall have, possess and
exercise all the rights, powers, privileges, immunities and
franchises of the corporations, parties hereto, and shall be
subject to all the duties and obligations of said respective
corporations; it shall have, enjoy and be possessed of all of the
property, real, personal and mixed, of every kind and nature,
owned, possessed and enjoyed by or for said corporations, parties
hereto; it shall have power to issue bonds and dispose of the
same, in such form and denominations and bearing such interest as
the Board of Directors may determine, and to secure payment
thereof by mortgage of every and all of the property, franchises,
rights, privileges and immunities of said Corporation at the time
of the consolidation acquired or thereafter to be acquired and of
the companies, parties hereto; to do all acts and things which
said companies so consolidated or any of them might have done
previous to said consolidation, and the further right to
consolidate with any other street railway company, electric
company or gas light company, or any other consolidated company.
SECOND: Said Corporation, "ENTERGY NEW ORLEANS, INC.", under
its said corporate name, shall have power and authority to have
and enjoy perpetual corporate existence and succession from and
after the date hereof; to contract, sue and be sued; to make and
use a corporate seal and the same to break or alter at pleasure;
to hold, receive, lease, purchase and convey, as well as
mortgage, hypothecate and pledge property, real, personal and
mixed, corporeal and incorporeal; to name and appoint such
managers, agents, directors and officers as its business,
interests or convenience may require; and to make and establish,
as well as alter and amend from time to time such by-laws, rules
and regulations for the proper conduct, management and regulation
of the affairs of said Corporation as may be necessary and
proper; and to have, possess and enjoy all rights, powers,
privileges, franchises and immunities now or hereafter authorized
by law.
THIRD: The Domicile of said Corporation shall be in the City
of New Orleans, State of Louisiana, and all citations or other
legal process shall be served upon those individuals as
identified by resolution of the Board of Directors of the
Corporation.
FOURTH: The objects and purposes for which this Corporation
is established to engage in any lawful activity for which
corporations may be formed under the Business Corporation Law of
Louisiana.
FIFTH: The amount of the capital stock of the Corporation
shall be Seventy-seven Million Four Hundred Nine Thousand Eight
Hundred Dollars ($77,409,800), together with the aggregate par
value of capital stock issued after September 1, 1969, by this
Corporation as hereinafter provided.
The total authorized number of shares of capital stock that
may be issued by the Corporation shall be 10,347,798 shares, of
which 10,000,000 shares shall have a par value of $4 per share
and 347,798 shares shall have a par value of $l00 per share.
The shares of capital stock hereby authorized to be issued
shall be divided among the following classes:
10,000,000 shares of $4 par value per share shall be
Common Stock;
77,798 shares of $100 par value per share shall be 4
3/4% Preferred Stock (hereinafter sometimes referred to as
the "4 3/4% Preferred Stock"); and
270,000 shares of $100 par value per share shall be
Preferred Stock (which, together with such additional shares
thereof as may be hereafter authorized, is hereinafter
sometimes referred to as the "Preferred Stock").
The term "preferred stock" as used herein shall include the
4 3/4% Preferred Stock, the Preferred Stock and any other class
of stock having a preference over the Common Stock as to
dividends, distribution of assets, or in liquidation, dissolution
or winding up.
Except as otherwise in this Article FIFTH provided and to
the extent not prohibited by law, the Corporation may acquire
funds for, or otherwise effect, the redemption or purchase of any
of its shares through the issuance or sale of any of its stocks,
bonds, or other securities.
Stocks of the Corporation, whether authorized herein or upon
any subsequent increase of the number of shares of capital stock,
may be issued by the Board of Directors of the Corporation from
time to time for such consideration permitted by law as may be
fixed from time to time by the Board of Directors, and general
authority to the Board of Directors so to fix such consideration
is hereby and herein granted; provided, however, that stock
having a par value may not be issued for less than the par value
thereof; and provided further, that such consideration may be in
the form of money paid, labor done, or property actually received
by the Corporation.
No holder of any stock of the Corporation shall be entitled
as of right to purchase or subscribe for any part of any unissued
stock of the Corporation, or of any additional stock of any
class, to be issued by reason of any increase of the authorized
capital stock, or of the number of shares of the Corporation, or
of bonds, certificates of indebtedness, debentures or other
securities convertible into stock of the Corporation, but any
such unissued stock or any such additional authorized issues of
new stock, or of securities convertible into stock, may be issued
and disposed of by the Board of Directors to such persons, firms,
corporations, or associations, and upon such terms as the Board
of Directors may, in their discretion, determine, without
offering to the stockholders then of record, or to any class of
stockholders, any thereof, on the same terms or on any terms.
The preferred stock shall not entitle any holder thereof to
vote at any meeting of stockholders or election of the
Corporation or otherwise to participate in any action taken by
the Corporation or its stockholders, but all the voting power
shall be vested in the holders of the Common Stock, except as
otherwise in this Article FIFTH provided. Each stockholder shall
be entitled to one vote for each share of Common Stock of the
Corporation standing in his name on the books of the Corporation.
Except as otherwise in this Article FIFTH provided, upon the
vote of a majority of the total number of shares of stock then
issued and outstanding, and entitled to vote, as herein provided,
or upon such larger vote as may be required by law, this
agreement may be amended from time to time so as to permit the
Corporation to create or authorize one or more other classes of
stock with such preferences, designations, rights, privileges,
voting powers, including votes on proceedings prescribed by
statute, and subject to such restrictions, limitations and
qualifications with respect to voting and otherwise as may be
determined by said vote, which may be the same or different from
the preferences, designations, rights, privileges, voting powers,
restrictions, limitations and qualifications with respect to
voting or otherwise of the classes of stock of the Corporation
then authorized. Any such vote and amendment may authorize any
shares of any class then authorized but unissued to be issued as
shares of such new class or classes.
Except as otherwise in this Article FIFTH provided, the
Board of Directors of the Corporation may at any time authorize
the conversion or exchange of the whole or any particular share
of the outstanding preferred stock of any class, with the consent
of the holder thereof, into or for stock of any other class which
at the time of such consent is authorized but unissued, and may
fix the terms and conditions upon which such conversion or
exchange may be made; provided that, without the consent of the
holders of record of two-thirds of the shares of Common Stock
outstanding given at a meeting of the holders of the Common Stock
called and held as provided by the By-Laws or given in writing
without a meeting as authorized by law, the Board of Directors
shall not authorize the conversion or exchange of any preferred
stock of any class into or for Common Stock or authorize the
conversion or exchange of any preferred stock of any class into
or for preferred stock of any other class, if by such conversion
or exchange the amount which the holders of the shares of stock
so converted or exchanged would be entitled to receive either as
dividends or shares in distribution of assets in preference to
the Common Stock would he increased.
Except as otherwise in this Article FIFTH provided, any
class of stock may be increased at any time upon vote of the
holders of two-thirds (or such smaller number, not less than a
majority, as may be permitted by law) of the shares of the
Corporation then issued and outstanding and entitled to vote
thereon; provided, however, that so long as any share of the 4
3/4% Preferred Stock remains outstanding, the amount to which
the capital stock of the Corporation may be increased is Two
Hundred Million Dollars ($200,000,000).
Except as otherwise in this Article FIFTH provided, the
Corporation from time to time may resell any of its own stock,
purchased or otherwise acquired by it as hereinafter provided
for, at such price permitted by law as may be fixed by its Board
of Directors or Executive Committee.
I.
The designations, voting powers, preferences, dividend and
redemption rights (including votes on proceedings prescribed by
statute), and other relative rights or restrictions, limitations
and qualifications of the 4 3/4% Preferred Stock having a par
value of $100 per share shall be as follows:
(1) The holders of the 4 3/4% Preferred Stock shall be
entitled to receive, when, as and if declared by the Board
of Directors, out of the surplus of the Corporation as
provided by law, cumulative preferred dividends at the rate
of 4 3/4% per annum from July 1, 1944, and no more, payable
quarterly on the first days of January, April, July and
October of each year, before any dividends shall be declared
or paid upon or set apart for the Common Stock of the
Corporation. Such cumulative preferred dividends shall
accrue on each share from the quarterly dividend payment
date next preceding the date of the original issue of such
share, unless such stock shall be issued on a quarterly
dividend payment date, and, in such case, from said date.
The first quarterly dividend shall be payable on October 1,
1944, and shall be cumulative from July 1, 1944.
(2) No dividends shall be declared at any time upon the
Common Stock of the Corporation unless all accumulated and
unpaid dividends upon the outstanding 4 3/4% Preferred Stock
shall have been declared and shall have been paid in full or
a sum sufficient for payment thereof shall have been set
aside for that purpose from said surplus of the Corporation,
in which event dividends may be declared by the Board of
Directors on the Common Stock out of said surplus of the
Corporation, subject to the rights of any other class of
stock then outstanding. The term "accumulated and unpaid
dividends" as used herein with respect to the 4 3/4%
Preferred Stock shall mean dividends on all the outstanding
4 3/4% Preferred Stock from the respective dates from which
such dividends accumulate to the date as of which
accumulated and unpaid dividends are being determined, less
the aggregate of dividends theretofore declared and paid or
set apart for payment upon such outstanding 4 3/4% Preferred
Stock.
(3) The 4 3/4% Preferred Stock may be called for
redemption in whole or in part at any time at the option of
the Board of Directors by mailing notice thereof to the
holders of record of the shares to be redeemed at least
thirty (30) days prior to the date fixed for redemption, and
such shares may be then redeemed by paying, for each share
so called, an amount equal to all accumulated and unpaid
dividends thereon to the date fixed for such redemption,
plus One Hundred Eleven and 50/100 Dollars ($111.50) per
share as to any shares redeemed prior to July 1, 1954, and
One Hundred Five Dollars ($105.00) per share as to any
shares redeemed on July 1, 1954, and thereafter. In case of
the redemption of part only of the 4 3/4% Preferred Stock at
the time outstanding, the Corporation shall select by lot,
or in such other manner as the Board of Directors may
determine, the shares so to be redeemed, provided that there
shall be no obligation to redeem less than a whole share.
Notice of the intention of the Corporation to redeem the 4
3/4% Preferred Stock shall be mailed not less than thirty
(30) days before the date of redemption to each holder of
record of 4 3/4% Preferred Stock to be redeemed at his post
office address appearing upon the books of the Corporation,
and upon the deposit of the aggregate redemption price (or
the portion thereof not already paid in the redemption of
shares so to be redeemed) with any national bank or trust
company in the City of New York or in the City of New
Orleans, named in such notice, payable in the amounts
aforesaid to the respective orders of the record holders of
the 4 3/4% Preferred Stock so to be redeemed on endorsement
and surrender of their certificates; said holders shall, at
the time fixed in such notice for such redemption, cease to
be stockholders with respect to said shares and from and
after the making of such deposit, said holders shall have no
interest in or claim against the Corporation with respect to
said shares and shall be entitled only to receive said
moneys from said bank or trust company without interest.
(4) In the case of any distribution of any assets of
the Corporation in repayment in whole or in part of any
outstanding shares of its capital stock, whether upon
dissolution of the Corporation or liquidation or sale of any
or all of its assets or otherwise, except in case of
redemption as hereinbefore provided, there shall be paid to
the holders of the 4 3/4% Preferred Stock (a) in case such
dissolution, liquidation or sale shall be voluntary, One
Hundred Five Dollars ($105) per share and (b) in case such
dissolution, liquidation or sale shall be involuntary, One
Hundred Dollars ($100) per share, plus in each case an
amount equal to all accumulated and unpaid dividends thereon
before any sum shall be paid to, or any assets distributed
among, the holders of the Common Stock, and after such
payment to the holders of the 4 3/4% Preferred Stock, all
remaining assets and funds shall be distributed among the
holders of the Common Stock of the Corporation subject to
the rights of any other class of stock then outstanding.
(5) The holders of the 4 3/4% Preferred Stock shall not
be entitled to any payment by way of dividends or otherwise,
or have any rights in the property of the Corporation or in
the distribution thereof, other than as is specifically
provided in the preceding paragraphs with respect to the 4
3/4% Preferred Stock.
(6) No holder of any of the 4 3/4% Preferred Stock
shall be entitled to vote at any election of directors or,
except as otherwise required by statute, on any other matter
submitted to the stockholders, provided that, if and
whenever four (4) quarter-yearly dividends payable on any
part of the 4 3/4% Preferred Stock shall be accumulated and
unpaid, the holders of the 4 3/4% Preferred Stock as a class
shall thereafter at all elections of directors have the
exclusive right to elect the smallest number of directors of
the Corporation which shall constitute a majority of the
authorized number of directors, and the holders of the
Common Stock of the Corporation as a class shall have the
exclusive right to elect the remaining number of directors
of the Corporation, which right of the holders of the 4 3/4%
Preferred Stock, however, shall cease when all accumulated
and unpaid dividends on the 4 3/4% Preferred Stock shall
have been paid in full, or provision shall have been made
for such payment; and provided further, that if and when the
surplus of the Corporation, out of which dividends might
lawfully be declared, is in excess of such accumulated and
unpaid dividends, then the declaration and payment of such
dividends shall not be unreasonably withheld. The terms of
office of all persons who may be directors of the
Corporation at the time when the right to elect a majority
of the directors shall accrue to the 4 3/4% Preferred
Stockholders, as herein provided, shall terminate upon the
election of their successors at the next annual meeting of
the stockholders or at an earlier special meeting of the
stockholders held as hereinafter provided. Such special
meeting shall be held at any time after the accrual of such
voting power, upon notice similar to that provided in the
Consolidation Agreement and/or the By-Laws of the
Corporation for annual and all other stockholders' meetings,
which notice shall be given at the request in writing of the
holders of not less than ten per centum (10%) of the number
of shares of the then outstanding 4 3/4% Preferred Stock,
addressed to the Secretary of the Corporation at its
principal business office. Upon the termination of such
exclusive right of the holders of the 4 3/4% Preferred Stock
to elect a majority of the directors of the Corporation, the
terms of office of all the directors of the Corporation
shall terminate upon the election of their successors at the
next annual meeting of the stockholders or at an earlier
special meeting of the stockholders held as hereinafter
provided. Such special meeting shall be held at any time
after the termination of such right of the 4 3/4% Preferred
Stockholders to elect a majority of the directors, upon
notice similar to that provided in the Articles of
Incorporation and/or the By-Laws of the Corporation for
annual and all other stockholders' meetings, which notice
shall be given at the request in writing of the holders of
not less than ten per centum (10%) of the number of shares
of the then outstanding Common Stock, addressed to the
Secretary of the Corporation at its principal office.
(7) So long as any share of the 4 3/4% Preferred Stock
remains outstanding, the consent or authorization of the
holders of at least a majority of the outstanding shares of
the 4 3/4% Preferred Stock then outstanding, voting as a
class (given at a meeting called for that purpose), shall be
necessary for effecting or validating any of the following:
(a) The issuance of any additional shares of 4
3/4% Preferred Stock, or of any other class of stock
ranking prior to or on a parity with the 4 3/4%
Preferred Stock as to dividends or other distributions,
(i) unless the net earnings of the Corporation
available for dividends on the 4 3/4% Preferred Stock,
determined in accordance with generally-accepted
accounting practices, for any twelve (12) consecutive
calendar months' period within the fifteen (15)
calendar months preceding the month within which the
additional shares are to be issued, shall have been at
least twice the dividend requirements for a twelve (12)
month period upon the entire amount of 4 3/4% Preferred
Stock and all such other stock ranking prior to or on a
parity with the 4 3/4% Preferred Stock as to dividends
or other distributions to be outstanding immediately
after the proposed issue of such additional shares, and
(ii) unless the aggregate of the capital of the
Corporation applicable to the Common Stock and the
surplus of the Corporation shall be not less than the
amount payable upon involuntary dissolution to the
holders of the 4 3/4% Preferred Stock and such other
stock to be outstanding immediately after the proposed
issue of such additional shares.
(b) The issuance by the Corporation of any
unsecured notes, debentures or other securities
representing unsecured indebtedness, or the assumption
of any such unsecured securities, for purposes other
than the refunding of outstanding unsecured securities
theretofore issued or assumed by the Corporation or the
redemption or other retirement of all outstanding
shares of the 4 3/4% Preferred Stock, or of any other
class of stock ranking prior to or on a parity with the
4 3/4% Preferred Stock as to dividends or other
distributions, if immediately after such issue or
assumption the total principal amount of all such
unsecured securities issued or assumed by the
Corporation and then outstanding would exceed ten per
centum (10%) of the aggregate of (i) the total
principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by
the Corporation and then outstanding, plus (ii) the
capital and surplus of the Corporation as then stated
on its books of account.
(c) The merger or consolidation of the Corporation
with or into any other corporation or corporations,
unless such merger or consolidation, or the issuance
and assumption of all securities to be issued or
assumed in connection with such merger or
consolidation, shall have been ordered, approved, or
permitted by the Securities and Exchange Commission (or
by any succeeding regulatory authority of the United
States of America having jurisdiction in the premises)
under the provisions of the Public Utility Holding
Company Act of 1935, as amended, or exempted by said
Commission from the requirements of said Act, provided
that the provisions of this clause (c) shall not apply
to the purchase or other acquisition by the Corporation
of franchises or assets of another corporation in any
manner which does not involve a merger or
consolidation.
(8) Notwithstanding any other provision of this Article
FIFTH, the consent or authorization of the holders of at
least two-thirds of the total number of shares of 4 3/4%
Preferred Stock at the time outstanding shall be necessary
to authorize the creation of any class of stock which would
be preferred as to assets or dividends over the 4 3/4%
Preferred Stock, or to amend the Articles of Incorporation
so as to change the express terms and provisions of the 4
3/4% Preferred Stock then outstanding in any manner
substantially prejudicial to the holders thereof.
II
The Preferred Stock shall be issuable in one or more
series from time to time and the shares of each series shall
have the same rank and be identical with each other and shall
have the same relative rights, except with respect to amounts
payable on voluntary liquidation as specified in Section (F)
below and to the following characteristics:
(a) The number of shares to constitute each such series
and the distinctive designation thereof;
(b) The annual rate or rates of dividends payable on
shares of such series, the dates on which dividends shall be
paid in each year, and the date from which such dividends
shall commence to accumulate:
(c) The amount or amounts payable upon redemption
thereof; and
(d) The terms and amount of sinking fund requirements
(if any) for the purchase or redemption of each series of
the Preferred Stock other than the initial series and the
second series of the Preferred Stock;
which different characteristics of clauses (a), (b), (c),
and (d) above are set forth below.
The initial series of the Preferred Stock shall:
(a) consist of 60,000 shares and be designated "4.36%
Preferred Stock";
(b) have a dividend rate of Four and 36/100 Dollars
($4.36) per share per annum payable quarterly on January 1,
April 1, July 1 and October 1 of each year; such dividends
shall accumulate on each share from the quarterly dividend
payment date next preceding the date of the original issue
of such share, unless such stock shall be issued on a
quarterly dividend payment date and in such case from said
date. The first quarterly dividend shall be payable on
April 1, 1956, and shall be cumulative from January 1, 1956;
and
(c) be subject to redemption in the manner provided
herein with respect to the Preferred Stock at the price of
One Hundred Seven and 08/100 Dollars ($107.08) per share if
redeemed on or before January 1, 1961, of One Hundred Six
and 08/100 Dollars ($106.08) per share if redeemed after
January 1, 1961, and on or before January 1, 1966, and of
One Hundred Four and 58/100 Dollars ($104.58) per share if
redeemed after January 1, 1966, in each case plus an amount
equivalent to the accumulated and unpaid dividends thereon,
if any, to the date fixed for redemption.
The second series of the Preferred Stock shall:
(a) consist of 60,000 shares and be designated "5.56%
Preferred Stock";
(b) have a dividend rate of Five and 56/100 Dollars
($5.56) per share per annum payable quarterly on January 1,
April 1, July 1 and October 1 of each year; such dividends
shall accumulate on each share from and including April 26,
1967. The first dividend shall be payable on July 1, 1967,
and shall be cumulative from and including April 26, 1967;
and
(c) be subject to redemption in the manner provided
herein with respect to the Preferred Stock at the price of
One Hundred Six and 65/100 Dollars ($106.65) per share if
redeemed on or before April 1, 1972, of One Hundred Four and
09/100 Dollars ($104.09) per share if redeemed after April
1, 1972, and on or before April 1, 1977, and of One Hundred
Two and 59/100 Dollars ($102.59) per share if redeemed after
April 1, 1977, in each case plus an amount equivalent to the
accumulated and unpaid dividends thereon, if any, to the
date fixed for redemption.
Subject to the foregoing, the distinguishing characteristics of
the Preferred Stock shall be:
(A) Each series of the Preferred
Stock, pari passu with all shares of preferred stock of any class
or series then outstanding, shall be entitled, but only when and
as declared by the Board of Directors, out of funds legally
available for the payment of dividends, in preference to the
Common Stock, to dividends at the rate stated and expressed with
respect to such series herein; such dividends to be cumulative
from such date and payable on such dates in each year as may be
stated and expressed herein, to stockholders of record as of a
date not to exceed forty (40) days and not less than ten (10)
days preceding the dividend payment dates so fixed.
(B) If and when all outstanding shares of the 4 3/4%
Preferred Stock shall have been redeemed, acquired or otherwise
retired, then:
(1) If and when dividends payable on any of the
Preferred Stock (which, for the purposes of this Section
(B), shall be deemed to be all outstanding shares of the
Preferred Stock of any series, and such other preferred
stock of any class or series, ranking prior to or on a
parity with the Preferred Stock as to dividends and in
liquidation, dissolution, winding up, or distribution, as
may be lawfully issued) shall be in default in an amount
equal to four (4) full quarterly payments or more per share,
and thereafter until all dividends on any of the Preferred
Stock in default shall have been paid, the holders of all of
the then outstanding Preferred Stock, voting as a class, in
contra-distinction to the Common Stock as a class, shall be
entitled to elect the smallest number of directors necessary
to constitute a majority of the full Board of Directors, and
the holders of the Common Stock, voting separately as a
class, shall be entitled to elect the remaining directors of
the Corporation, anything in these Articles of Incorporation
to the contrary notwithstanding. The terms of office, as
directors. of all persons who may be directors of the
Corporation at the time shall terminate upon the election of
a majority of the Board of Directors by the holders of the
Preferred Stock, except that if the holders of the Common
Stock shall not have elected the remaining directors of the
Corporation, then, and only in that event, the directors of
the Corporation in office just prior to the election of a
majority of the Board of Directors by the holders of the
Preferred Stock shall elect the remaining directors of the
Corporation. Thereafter, while such default continues and
the majority of the Board of Directors is being elected by
the holders of the Preferred Stock, the remaining directors,
whether elected by directors, as aforesaid, or whether
originally or later elected by holders of the Common Stock,
shall continue in office until their successors are elected
by holders of the Common Stock and shall qualify.
(2) If and when all dividends then in default on any of
the Preferred Stock then outstanding shall be paid (such
dividends to be declared and paid out of any funds legally
available therefor as soon as reasonably practicable), the
holders of the Preferred Stock shall be divested of any
special right with respect to the election of directors, and
the voting power of the holders of the Preferred Stock and
the holders of the Common Stock shall revert to the status
existing before the first dividend payment date on which
dividends on any of the Preferred Stock were not paid in
full, but always subject to the same provisions for vesting
such special rights in the holders of the Preferred Stock in
case of further like default or defaults in the payment of
dividends thereon as described in the immediately foregoing
paragraph. Upon termination of any such special voting
right upon payment of all accumulated and unpaid dividends
on the Preferred Stock, the terms of office of all persons
who may have been elected directors of the Corporation by
vote of the holders of the Preferred Stock as a class,
pursuant to such special voting right, shall forthwith
terminate, and the resulting vacancies shall be filled by
the vote of a majority of the remaining directors. In case
of any vacancy in the office of a director occurring among
the directors elected by the holders of the Preferred Stock
voting as a class, the remaining directors elected by the
holders of the Preferred Stock, by affirmative vote of a
majority thereof, or the remaining director so elected if
there be but one, may elect a successor or successors to
hold office for the unexpired term or terms of the director
or directors whose place or places shall be vacant.
Likewise, in case of any vacancy in the office of a director
occurring among the directors not elected by the holders of
the Preferred Stock, the remaining directors not elected by
the holders of the Preferred Stock, by affirmative vote of a
majority thereof, or the remaining director so elected if
there be but one, may elect a successor or successors to
hold office for the unexpired term or terms of the director
or directors whose place or places shall be vacant.
(3) Whenever the special voting right shall have
accrued to the holders of the Preferred Stock to elect
directors, voting as a class, it shall be the duty of the
President, a Vice-President or the Secretary of the
Corporation forthwith to call a meeting, and cause notice
thereof to be given to the stockholders, including all of
the holders of the then outstanding shares of Preferred
Stock, entitled to vote at such meeting, to be held at such
time as the Corporation's officers may fix, not less than
forty-five (45) nor more than sixty (60) days after the
accrual of such right, for the purpose of electing
directors. The notice so given shall be mailed to each
holder of record of Preferred Stock at his last known
address appearing on the books of the Corporation and shall
set forth, among other things, (i) that by reason of the
fact that dividends payable on Preferred Stock are in
default in an amount equal to four (4) full quarterly
payments or more per share, the holders of all of the then
outstanding Preferred Stock, voting as a class, have the
right to elect the smallest number of directors necessary to
constitute a majority of the full Board of Directors of the
Corporation, (ii) that any holder of the Preferred Stock has
the right, at any reasonable time, to inspect and make
copies of the list or lists of holders of the Preferred
Stock maintained at the principal office of the Corporation
or at the office of any Transfer Agent or Agents of the
Preferred Stock, and (iii) either the entirety of this
paragraph or the substance thereof with respect to the
number of shares of the Preferred Stock required to be
represented at any meeting. or adjournment thereof, called
for the election of directors of the Corporation. At the
first meeting of stockholders held for the purpose of
electing directors during such time as the holders of the
Preferred Stock shall have the special right, voting as a
class, to elect directors, the presence in person or by
proxy of the holders of a majority of the outstanding Common
Stock shall be required to constitute a quorum of such class
for the election of directors, and the presence in person or
by proxy of the holders of a majority of all of the
outstanding Preferred Stock shall be required to constitute
a quorum of such class for the election of directors;
provided, however, that in the absence of a quorum of the
holders of the Preferred Stock or of the holders of the
Common Stock, no election of directors shall be held and the
meeting shall be adjourned to the same time the following
day; and provided, further, that at such first adjourned
meeting, the presence in person or by proxy of the holders
of thirty-five per centum (35%) of all of the outstanding
Preferred Stock shall be required to constitute a quorum of
such class for the election of directors, and the presence
in person or by proxy of the holders of thirty-five per
centum (35%) of the outstanding Common Stock shall be
required to constitute a quorum of such class for the
election of directors, and in the absence of a quorum of the
holders of the Preferred Stock or of the holders of the
Common Stock no election of directors shall be held and the
meeting shall be adjourned to the same time the following
day; and provided, further, that at such second adjourned
meeting such number of the holders of the Preferred Stock
and of the holders of the Common Stock as are present in
person or by proxy shall constitute a quorum of their
respective classes of stock for the election of directors.
If no holders of the Preferred Stock are present at said
second adjourned meeting, then the directors of the
Corporation then in office shall remain in office until the
next Annual Meeting of the Corporation, or special meeting
in lieu thereof, and until their successors shall have been
elected and shall qualify. No such meeting shall be held on
a date within sixty (60) days of the date of the next Annual
Meeting of the Corporation or special meeting in lieu
thereof. At each Annual Meeting of the Corporation, or
special meeting in lieu thereof, held during such time as
the holders of all of the then outstanding Preferred Stock,
voting as a class, shall have the right to elect a majority
of the Board of Directors, the foregoing provisions of this
paragraph shall govern each Annual Meeting, or special
meeting in lieu thereof, as if said Annual Meeting or
special meeting were the first meeting of stockholders held
for the purpose of electing directors after the right of the
holders of all of the Preferred Stock, voting as a class, to
elect a majority of the Board of Directors, should have
accrued with the exception, that if at any second adjourned
Annual Meeting, or special meeting in lieu thereof, no
holders of the outstanding Preferred Stock are present in
person or by proxy, all the directors shall be elected by a
vote of the holders of a majority of the Common Stock of the
Corporation present or represented at the meeting.
(C) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the consent
(given by vote at a meeting called for that purpose) of at least
two-thirds of the total number of shares of the Preferred Stock
then outstanding, voting as a class:
(1) create, authorize or issue any new stock which,
after issuance, would rank prior to the Preferred Stock as
to dividends, in liquidation, dissolution, winding up or
distribution, or create, authorize or issue any security
convertible into shares of any such stock, except for the
purpose of providing funds for the redemption of all of the
Preferred Stock then outstanding, such new stock or security
not to be issued until such redemption shall have been
authorized and notice of such redemption given and the
aggregate redemption price deposited as provided in Section
(G) below; provided, however, that any such new stock or
security shall be issued within twelve (12) months after the
vote of the Preferred Stock herein provided for authorizing
the issuance of such new stock or security; or
(2) amend, alter or repeal any of the rights,
preferences or powers of the holders of the Preferred Stock
so as to affect adversely any such rights, preferences or
powers; provided, however, that if such amendment,
alteration or repeal affects adversely the rights,
preferences or Powers of one or more, but not all, series of
Preferred Stock at the time outstanding, only the consent of
the holders of at least two-thirds of the total number of
outstanding shares of all series so affected shall be
required; and provided, further, that an amendment to
increase or decrease the authorized amount of Preferred
Stock, or to create or authorize, or increase or decrease
the amount of, any class of stock ranking on a parity with
the outstanding shares of the Preferred Stock as to
dividends or assets shall not be deemed to affect adversely
the rights, preferences or powers of the holders of the
Preferred Stock or any series thereof.
(D) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the consent
(given by vote at a meeting called for that purpose) of the
holders of a majority of the total number of shares of the
Preferred Stock then outstanding voting as a class:
(1) merge or consolidate with or into any other
corporation or corporations or sell or otherwise dispose of
all or substantially all of the assets of the Corporation,
unless such merger or consolidation or sale or other
disposition, or the exchange, issuance or assumption of all
securities to be issued or assumed in connection with any
such merger or consolidation or sale or other disposition,
shall have been ordered, approved or permitted under the
Public Utility Holding Company Act of 1935; or
(2) issue or assume any unsecured notes, debentures or
other securities representing unsecured indebtedness for
purposes other than (i) the refunding of outstanding
unsecured indebtedness theretofore issued or assumed by the
Corporation, resulting in equal or longer maturities, or
(ii) the reacquisition, redemption or other retirement of
all outstanding shares of the Preferred Stock, if
immediately after such issue or assumption, the total
principal amount of all unsecured notes, debentures or other
securities representing unsecured indebtedness issued or
assumed by the Corporation, including unsecured indebtedness
then to be issued or assumed (but excluding the principal
amount then outstanding of any unsecured notes, debentures
or other securities representing unsecured indebtedness
having a maturity in excess of ten (10) years and in an
amount not exceeding ten per centum (10%) of the aggregate
of (a) and (b) of this subsection (2) below) would exceed
ten per centum (10%) of the aggregate of (a) the total
principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by the
Corporation and then to be outstanding, and (b) the capital
and surplus of the Corporation as then to be stated on the
books of account of the Corporation. When unsecured notes,
debentures or other securities representing unsecured debt
of a maturity in excess of ten (10) years shall become of a
maturity of ten (10) years or less, it shall then be
regarded as unsecured debt of a maturity of less than ten
(10) years and shall be computed with such debt for the
purpose of determining the percentage ratio to the sum of
(a) and (b) above of unsecured debt of a maturity of less
than ten (10) years, and when provision shall have been
made, whether through a sinking fund or otherwise, for the
retirement, prior to their maturity, of unsecured notes,
debentures or other securities representing unsecured debt
of a maturity in excess of ten (10) years, the amount of any
such security so required to be retired in less than ten
(10) years shall be regarded as unsecured debt of a maturity
of less than ten (10) years (and not as unsecured debt of a
maturity in excess of ten (10) years) and shall be computed
with such debt for the purpose of determining the percentage
ratio to the sum of (a) and (b) above of unsecured debt of a
maturity of less than ten (10) years; provided, however,
that the payment due upon the maturity of unsecured debt
having an original single maturity in excess of ten (10)
years or the payment due upon the latest maturity of any
serial debt which had original maturities in excess of ten
(10) years shall not, for purposes of this provision, be
regarded as unsecured debt of a maturity of less than ten
(10) years until such payment or payments shall be required
to be made within three (3) years; furthermore, when
unsecured notes, debentures or other securities representing
unsecured debt of a maturity of less than ten (10) years
shall exceed ten per centum (10%) of the sum of (a) and (b)
above, no additional unsecured notes, debentures or other
securities representing unsecured debt shall be issued or
assumed (except for the purposes set forth in (i) or (ii)
above) until such ratio is reduced to ten per centum (10%)
of the sum of (a) and (b) above; or
(3) issue, sell, or otherwise dispose of any shares of
the Preferred Stock, in addition to the 60,000 shares of the
Preferred Stock initially authorized, or of any other class
of stock ranking on a parity with the Preferred Stock as to
dividends or in liquidation, dissolution, winding up or
distribution, unless the gross income of the Corporation for
a period of twelve (12) consecutive calendar months within
the fifteen (15) calendar months immediately preceding the
issuance, sale or disposition of such stock, determined in
accordance with generally accepted accounting practices (but
in any event after deducting all taxes and the greater of
(a) the amount for said period appropriated from income to
the property retirement reserve by the Corporation on its
books or (b) the largest amount required to be provided
therefor by any mortgage indenture of the Corporation) to be
available for the payment of interest, shall have been at
least one and one-half (1-1/2) times the sum of (i) the
annual interest charges on all interest bearing indebtedness
of the Corporation and (ii) the annual dividend requirements
on all outstanding shares of the Preferred Stock and of all
other classes of stock ranking prior to, or on a parity
with, the Preferred Stock as to dividends or in liquidation,
dissolution, winding up or distribution, including the
shares proposed to be issued; provided, that there shall be
excluded from the foregoing computation interest charges on
all indebtedness and dividends on all shares of the
Preferred Stock or on any other class of stock ranking prior
to, or on a parity with, the Preferred Stock as to dividends
or in liquidation, dissolution, winding up or distribution
which are to be retired in connection with the issue of such
additional shares; and provided, further, that in any case
where such additional shares of the Preferred Stock, or
other class of stock ranking on a parity with the Preferred
Stock as to dividends or in liquidation, dissolution,
winding up or distribution, are to be issued in connection
with the acquisition of additional property, the gross
income of the property to be so acquired, computed on the
same basis as the gross income of the Corporation, may be
included on a pro forma basis in making the foregoing
computation; or
(4) issue, sell, or otherwise dispose of any shares of
the Preferred Stock, or of any other class of stock ranking
on a parity with the Preferred Stock as to dividends or in
liquidation, dissolution, winding up or distribution, unless
the aggregate of the capital of the Corporation applicable
to the Common Stock and the surplus of the Corporation shall
be not less than the aggregate amount payable on the
involuntary liquidation, dissolution or winding up of the
Corporation, in respect of all shares of the Preferred Stock
and all shares of any other class of stock, if any, ranking
prior thereto, or on a parity therewith, as to dividends or
in liquidation, dissolution, winding up or distribution,
which will be outstanding after the issue of the shares
proposed to be issued; provided, that if, for the purposes
of meeting the requirements of this subsection (4), it
becomes necessary to take into consideration any earned
surplus of the Corporation, the Corporation shall not
thereafter pay any dividends on shares of the Common Stock
which would result in reducing the Corporation's Common
Stock Equity (as in Section (H) hereinafter defined) to an
amount less than the aggregate amount payable, on
involuntary liquidation, dissolution or winding up of the
Corporation, on all shares of the Preferred Stock and of any
other class of stock ranking prior to, or on a parity with,
the Preferred Stock, as to dividends or other distributions,
at the time outstanding.
(E) Except as herein expressly provided, the holders of the
Preferred Stock shall have no power to vote and shall be entitled
to no notice of any meeting of the stockholders of the
Corporation. As to matters upon which holders of the Preferred
Stock are entitled to vote, as herein expressly provided, each
holder of such Preferred Stock shall be entitled to one vote, in
person or by proxy, for each share of such Preferred Stock
standing in his name on the books of the Corporation.
(F) In the event of any voluntary liquidation, dissolution
or winding up of the Corporation, the Preferred Stock, pari passu
with all shares ot preferred stock of any other class or series
then outstanding shall have a preference over the Common Stock
until an amount equal to the then current redemption price,
including accumulated and unpaid dividends, if any, shall have
been paid. In the event of any involuntary liquidation,
dissolution or winding up of the Corporation, which shall include
any such liquidation, dissolution or winding up which may arise
out of or result from the condemnation or purchase of all or a
major portion of the properties of the Corporation, by (i) the
United States Government or any authority, agency or
instrumentality thereof, (ii) a state of the United States or any
political subdivision, authority, agency, or instrumentality
thereof or (iii) a district, cooperative or other association or
entity not organized for profit, the Preferred Stock, pari passu
with all shares of preferred stock of any other class or series
then outstanding, shall also have a preference over the Common
Stock until the full par value thereof, and an amount equal to
the accumulated and unpaid dividends thereon, if any, shall have
been paid by dividends or distribution.
(G) Upon the affirmative vote of a majority of the shares of
the issued and outstanding Common Stock at any annual meeting, or
any special meeting called for that purpose, the Corporation may
at any time redeem all of any series of said Preferred Stock, or
may from time to time redeem any part of any series thereof, by
paying in cash the redemption price then applicable thereto,
plus, in each case, an amount equivalent to the accumulated and
unpaid dividends, if any, to the date fixed for redemption.
Notice of the intention of the Corporation to redeem all or any
part of the Preferred Stock shall be mailed not less than thirty
(30) days nor more than sixty (60) days before the date fixed for
redemption to each holder of record of Preferred Stock to be
redeemed, at his post office address as shown by the
Corporation's records, and not less than thirty (30) days' nor
more than sixty (60) days' notice of such redemption may be
published in such manner as may be prescribed by resolution of
the Board of Directors of the Corporation; and in the event of
such publication, no defect in the mailing of such notice shall
affect the validity of the proceedings for the redemption of any
shares of Preferred Stock so to be redeemed. Contemporaneously
with the mailing or the publication of such notice, as aforesaid,
or at any time thereafter prior to the date fixed for redemption,
the Corporation may deposit the aggregate redemption price (or
the portion thereof not already paid in the redemption of such
Preferred Stock so to be redeemed) with any bank or trust company
in the City of New York, New York, or in the City of New Orleans,
Louisiana, named in such notice, payable to the order of the
record holders of the Preferred Stock so to be redeemed, as the
case may be, on the endorsement and surrender of their
certificates, and thereupon said holders shall cease to be
stockholders with respect to such shares; and from and after the
making of such deposit such holders shall have no interest in or
claim against the Corporation with respect to said shares, but
shall be entitled only to receive such moneys from said bank or
trust company, with interest, if any, allowed by such bank or
trust company on such moneys deposited as in this Section (G)
provided, on endorsement and surrender of their certificates, as
aforesaid. Any moneys so deposited, plus interest thereon, if
any, remaining unclaimed at the end of six (6) years from the
date fixed for redemption, if thereafter requested by resolution
of the Board of Directors, shall be repaid to the Corporation,
and in the event of such repayment to the Corporation, such
holders of record of the shares so redeemed as shall not have
made claim against such moneys prior to such repayment to the
Corporation, shall be deemed to be unsecured creditors of the
Corporation for an amount, without interest, equivalent to the
amount deposited, plus interest thereon, if any, allowed by such
bank or trust company, as above stated, for the redemption of
such shares and so paid to the Corporation. Shares of the
Preferred Stock which have been redeemed shall not be reissued.
If less than all of the shares of any series of the Preferred
Stock are to be redeemed, the shares thereof to be redeemed shall
be selected by lot, in such manner as the Board of Directors of
the Corporation shall determine, by an independent bank or trust
company selected for that purpose by the Board of Directors of
the Corporation. Nothing herein contained shall limit any legal
right of the Corporation to purchase or otherwise acquire any
shares of the Preferred Stock; provided, however, that, so long
as any shares of the Preferred Stock (which term, for purposes of
this proviso, shall include the 4 3/4% Preferred Stock) are
outstanding, the Corporation shall not (i) make any payment, or
set aside funds for payment, into any sinking fund for the
purchase or redemption of any shares of the Preferred Stock, or
(ii) redeem, purchase or otherwise acquire less than all of the
shares of the Preferred Stock, if, at the time of such payment or
setting aside of funds for payment into such sinking fund, or of
such redemption, purchase or other acquisition, dividends payable
on the Preferred Stock shall be in default in whole or in part,
unless prior to or concurrently with such payment or setting
aside of funds for payment into such sinking fund, and/or such
redemption, purchase or other acquisition, as the case may be,
all such defaults shall be cured or unless such payment or
setting aside of funds for payment into such sinking fund, and/or
such redemption, purchase or other acquisition, as the case may
be, shall have been ordered, approved or permitted under the
Public Utility Holding Company Act of 1935. Any shares of the
Preferred Stock so redeemed, purchased or acquired shall be
retired and cancelled.
(H) For the purposes of this Section (H) and subsection (4)
of Section (D) the term "Common Stock Equity" shall mean the
aggregate of the par value of, or stated capital represented by,
the outstanding shares (other than shares owned by the
Corporation) of stock ranking junior to the Preferred Stock as to
dividends and assets, of the premium on such junior stock and of
the surplus (including earned surplus, capital surplus and
surplus invested in plant) of the Corporation, less (1) any
amounts recorded on the books of the Corporation for utility
plant and other plant in excess of the original cost thereof, (2)
unamortized debt discount and expense, capital stock discount and
expense and any other intangible items set forth on the asset
side of the balance sheet as a result of accounting convention,
(3) the excess, if any, of the aggregate amount payable on
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation upon all outstanding preferred stock of the
Corporation over the aggregate par or stated value thereof and
any premiums thereon, and (4) the excess, if any, for the period
beginning with January 1, 1955, to the end of a month within
ninety (90) days preceding the date as of which Common Stock
Equity is determined, of the cumulative amount computed under
requirements contained in the Corporation's mortgage indentures
relating to minimum depreciation provisions (this cumulative
amount being the aggregate of the largest amounts separately
computed for entire periods of differing coexisting mortgage
indenture requirements), over the amount appropriated from income
to the property retirement reserve by the Corporation on its
books during such period, including the final fraction of a year;
provided, however, that no deductions shall be required to be
made in respect of items referred to in items (1) and (2) of this
Section (H) in cases in which such items are being amortized or
are provided for, or are being provided for, by reserves. For the
purpose of this Section (H): (i) the term "total capitalization"
shall mean the sum of the Common Stock Equity, plus item (3) in
this Section (H) and the stated capital applicable to, and any
premium on, outstanding stock of the Corporation not included in
Common Stock Equity, and the principal amount of all outstanding
debt of the Corporation maturing more than twelve (12) months
after the date of issue thereof; and (ii) the term "dividends on
Common Stock" shall embrace dividends on Common Stock (other than
dividends payable only in shares of Common Stock), distributions
on, and purchase or other acquisitions for value of, any Common
Stock of the Corporation or other stock, if any, junior to the
Preferred Stock. So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not declare or pay any
dividends on the Common Stock, except as follows:
(a) If and so long as the Common Stock Equity at the
end of the calendar month immediately preceding the date on
which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than twenty per
centum (20%) of total capitalization, the Corporation shall
not declare such dividends in an amount which, together with
all other dividends on Common Stock paid within the year
ending with and including the date on which such dividend is
payable, exceeds fifty per centum (50%) of the net income of
the Corporation available for dividends on the Common Stock
for the twelve (12) full calendar months immediately
preceding the month in which such dividends are declared,
except in an amount not exceeding the aggregate of dividends
on Common Stock which under the restrictions set forth above
in this subsection (a) could have been, and have not been,
declared; and
(b) If and so long as the Common Stock Equity at the
end of the calendar month immediately preceding the date on
which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than twenty-five
per centum (25%) but not less than twenty per centum (20%)
of total capitalization, the Corporation shall not declare
dividends on the Common Stock in an amount which, together
with all other dividends on Common Stock paid within the
year ending with and including the date on which such
dividend is payable, exceeds seventy-five per centum (75%)
of the net income of the Corporation available for dividends
on the Common Stock for the twelve (12) full calendar months
immediately preceding the month in which such dividends are
declared, except in an amount not exceeding the aggregate of
dividends on Common Stock which under the restrictions set
forth above in subsection (a) and in this subsection (b)
could have been, and have not been, declared; and
(c) At any time when the Common Stock Equity is twenty-
five per centum (25%) or more of total capitalization, the
Corporation may not declare dividends on shares of the
Common Stock which would reduce the Common Stock Equity
below twenty-five per centum (25%) of total capitalization,
except to the extent provided in subsections (a) and (b)
above.
At any time when the aggregate of all amounts credited
subsequent to January 1, 1955, to the property retirement reserve
(accumulated provision for depreciation) account of the
Corporation through charges to operating revenue deductions or
otherwise on the books of the Corporation shall be less than the
amount computed as provided in clause (aa) below, under
requirements contained in the Corporation's mortgage indentures,
then for the purposes of subsections (a) and (b) above, in
determining the net income available for common stock dividends
during any twelve (12) month period, the amount to be provided
for depreciation in that period shall be (aa) the greater of the
cumulative amount appropriated from income to the property
retirement reserve (accumulated provision for depreciation) on
the books of the Corporation or the cumulative amount computed
under requirements contained in the Corporation's mortgage
indentures relating to minimum depreciation provisions (the
latter cumulative amount being the aggregate of the largest
amounts separately computed for entire periods of differing
coexisting mortgage indenture requirements) for the period from
January 1, 1955, to and including said twelve (12) month period,
less (bb) the greater of the cumulative amount appropriated from
income to the property retirement reserve (accumulated provision
for depreciation) on the books of the Corporation or the
cumulative amount computed under requirements contained in the
Corporation's mortgage indentures relating to minimum
depreciation provisions (the latter cumulative amount being the
aggregate of the largest amounts separately computed for entire
periods of differing coexisting mortgage indenture requirements)
from January 1, 1955, up to but excluding said twelve (12) month
period; provided that, in the event any company is merged into
the Corporation, the "cumulative amount computed under
requirements contained in the Corporation's mortgage indentures
relating to minimum depreciation provisions" referred to above
shall be computed without regard, for the period prior to the
merger, of property acquired in the merger, and the "cumulative
amount appropriated from income to the property retirement
reserve (accumulated provision for depreciation) on the books of
the Corporation" shall be exclusive of amounts provided for such
property prior to the merger.
(I) Dividends may be paid upon the Common Stock only when
(i) dividends have been paid or declared and funds set apart for
the payment of dividends as aforesaid on the Preferred Stock
(which term, for purposes of this Section (I), shall include the
4 3/4% Preferred Stock) from the date(s) after which dividends
thereon became cumulative, to the beginning of the period then
current, with respect to which such dividends on the Preferred
Stock are usually declared, and (ii) all payments have been made
or funds have been set aside for payments then or theretofore due
under the terms of sinking fund requirements (if any) for the
purchase or redemption of shares of the Preferred Stock, but
whenever (x) all such dividends upon the Preferred Stock as
aforesaid shall have been paid or declared and funds shall have
been set apart for the payment thereof upon the Preferred Stock
and (y) all payments shall have been made or funds shall have
been set aside for all payments then or theretofore due under the
terms of sinking fund requirements (if any) for the purchase or
redemption of shares of the Preferred Stock, then, subject to the
limitations above set forth and subject to the rights of any
other class of stock then outstanding, dividends upon the Common
Stock may be declared payable then or thereafter, out of any net
earnings or surplus of assets over liabilities, including
capital, then remaining.
(J) The Corporation reserves the right, without any vote or
consent of the Preferred Stock as a class or of any series of
Preferred Stock, to amend these Articles of Incorporation in any
or all of the following respects:
(1) So that the right vested exclusively in the holders
of the 4 3/4% Preferred Stock as a class to elect the
smallest number of directors, which shall constitute a
majority of the authorized number of directors upon default
in dividends upon the 4 3/4% Preferred Stock, shall
thereafter be shared with the holders of Preferred Stock and
any other preferred stock of any class or series, ranking
prior to, or on a parity with, the Preferred Stock as to
dividends and distributions, all voting as one class, to the
same extent and with the same effect as though the 4 3/4%
Preferred Stock had been redeemed, acquired or otherwise
retired and had been reissued as a series of Preferred
Stock;
(2) So that the 4 3/4% Preferred Stock shall thereafter
be a series of 4 3/4% Preferred Stock within the class of
Preferred Stock herein authorized, limited in number to the
number of shares of 4 3/4% Preferred Stock authorized to be
issued prior to such amendment, with the same annual rate of
dividend, the same dates on which dividends shall be paid
each year, the same date from which dividends shall commence
to accumulate, the same amounts payable on redemption and
the same amounts payable upon distribution of assets, as
were provided with respect to the shares of 4 3/4% Preferred
Stock prior to such amendment.
SIXTH: The corporate power of this Corporation shall be
vested in, and exercised by, a Board of Directors to be composed
of not less than three (3) nor more than fifteen (15) persons, to
be elected annually at a meeting of stockholders to be held on
any date selected by the stockholders. The number of persons,
within the foregoing limits, to compose the Board of Directors at
any given time, shall be fixed by either the stockholders or by
the Board of Directors. A majority of the Board of Directors
shall constitute a quorum for the transaction of business unless
the By-Laws of this Corporation, adopted by the Board of
Directors, shall provide for a lesser number.
Vacancies and newly created Directorships reesulting from
any increase on the authorized number of Directors may be filled
as provided in the By-Laws.
A failure to elect directors on the date above specified
shall not dissolve the Corporation, nor impair its corporate
existence or management, but the directors then in office shall
remain in office until their successors shall have been duly
elected and qualified.
Notice of such meeting and of all other stockholders'
meetings shall be given in the manner prescribed by law, and,
when not so prescribed, then written notice of such meetings
shall be addressed to each stockholder entitled to vote at said
meeting, at such address as may have been furnished by him for
notice hereunder and deposited in the post office, at least
fifteen (15) days before the date of said meeting, postage
prepaid. No notice need be given to any person whose stock was
acquired, or who became a registered owner thereof, on or after
the date upon which notice of a meeting of stockholders was
mailed or delivered. The By-Laws of the Corporation may provide
for any additional form of notice.
The books for the transfer of the stock may be closed for
such periods before and during the payment of dividends and the
holding of meetings of stockholders, not to exceed thirty (30)
days at any one time, as the Board of Directors may from time to
time determine; and the Corporation shall make no transfer of
stock on the books during such period.
The Board of Directors shall elect individuals to occupy
offices as provided in the By-Laws. The powers and duties of
every officer, agent and employee shall be such as may be
conferred upon them by the By-Laws, the Board of Directorsor the
Executive Committee, and all officers, agents and employees shall
hold office and employment at the pleasure of the Board of
Directors.
In furtherance and not in limitation of the powers conferred
by law, either the Board of directors or the stockholders are
expressly authorized to make, alter and repeal the By-Laws of the
Corporation. The Board of Directors may make and establish, as
well as alter and amend, all such rules and regulations, not
inconsistent herewith, necessary and proper in its judgment for
the conduct and management of the business and affairs and the
exercise of the corporate powers of this Corporation, and said
Board of Directors shall have full power and authority to borrow
money and to execute mortgages and pledges and create liens; to
issue bonds, notes and other obligations, and to secure same by
mortgage and/or pledge or otherwise, and generally to do any and
all things reasonable, convenient or necessary for the proper
conduct of the business and affairs of this Corporation; and, in
its discretion, the Board of Directors may create and select an
Executive Committee to be composed of not less than two (2) of
its own members, to which committee the Board of Directors may
grant all or any of its powers to be exercised during the interim
between meetings of the Board of Directors itself.
A director of this Corporation shall not be disqualified by
his office from dealing or contracting with the Corporation
either as vendor, purchaser or otherwise, nor shall any
transaction or contract of this Corporation be void or voidable
by reason of the fact that any director or any firm of which any
director is a member, or any corporation of which any director is
a shareholder or director, is in any way interested in such
transaction or contract, provided that such transaction or
contract is or shall be authorized, ratified or approved either
(1) by vote of a majority of a quorum of the Board of Directors
or of the Executive Committee without counting in such majority
or quorum any director so interested, or members of a firm so
interested, or a shareholder or director of a corporation so
interested, or (2) by a vote at a stockholders' meeting of the
holders of record of a majority of all the outstanding shares of
Common Stock of the Corporation, or by writing or writings signed
by a majority of such holders; nor shall any director be liable
to account to the Corporation for any profits realized by and
from or through any such transaction or contract of this
Corporation authorized, ratified or approved, as aforesaid, by
reason of the fact that he or any firm of which he is a member,
or any corporation of which he is a shareholder or director, was
interested in such transaction or contract.
SEVENTH: Except as hereinbefore in Article FIFTH hereof
provided, with respect to certain voting rights conferred upon
the preferred stock, the provisions hereof may be modified,
changed, altered or amended to the extent and in the manner now
or hereafter permitted by law for the amendment of the articles
of incorporation or act of incorporation of a corporation, or the
capital stock or the number of shares of the capital stock of
this Corporation may be increased or decreased, or new classes or
series of stock may be created, or the number of shares of any
class or series of stock may be changed with the assent of two-
thirds (or such smaller number, not less than a majority, as may
be permitted by law) of the shares of the outstanding Common
Stock of this Corporation expressed, given and obtained at a
general meeting of such stockholders convened for such purposes,
or any of them, after previous notice of such meeting shall have
been given to each Common Stockholder in the manner hereinabove
provided, unless other notice for a meeting of such character be
prescribed by law, in which event notice shall be given in
conformity with law.
Whenever this Corporation may be dissolved, either by
limitation or from any other cause, its affairs shall be
liquidated by three (3) commissioners to be elected by the
holders of the Common Stock at a meeting convened for said
purpose as above provided and after due notice; a majority of
said stock represented at such meeting shall be requisite for the
election of such commissioners. Such commissioners shall remain
in office until the affairs of this Corporation shall have been
fully liquidated. In case of the death or resignation of any one
or more of said commissioners, the vacancy or vacancies shall be
filled by the survivor or survivors. In the event of any
disagreement among said commissioners, the action of the majority
shall prevail and be binding.
The provisions of the Business Corporation Law of Louisiana
and of all other statutes relating to corporations of the
character of this Corporation whether consolidated or otherwise.
shall be applicable to this Corporation so far as concerns the
rights and powers of this Corporation and its stockholders. Upon
the written consent or the vote of the holders of a majority in
number of the shares then outstanding and entitled to vote, or,
if the consent or vote of the holders of a larger number of
shares is required by law, then, upon such larger consent or vote
as may be required by law (1) any and every statute of the State
of Louisiana hereinafter adopted whereby the rights, powers or
privileges of the stockholders of corporations organized under
the general laws of said State are increased, diminished or in
any way affected, or whereby effect is given to the action taken
by any part less than all of the stockholders of any such
corporation shall, notwithstanding any provision which may at the
time be contained in this agreement of consolidation, apply to
this Corporation and shall be binding not only upon this
Corporation but upon every stockholder thereof to the same extent
as if such statute had been in force at the date of the making
and filing of this agreement of consolidation, and/or (2)
amendments to this agreement of consolidation authorized at the
time of the making of such amendments by the laws of the State of
Louisiana, may be made; provided, however, that no such consent
or vote shall alter or change the amounts which the holders of
outstanding preferred stock are entitled to receive as dividends
or in distribution of assets in preference to the holders of the
Common Stock, or decrease the price at which preferred stock may
be redeemed, all as hereinabove provided, except with the consent
of the holders of at least ninety per centum (90%) of the then
outstanding preferred stock, which consent may be expressed by
each stockholder either in writing or by vote at an annual or
special stockholders' meeting.
EIGHTH: No stockholder shall ever be held liable for the
contracts or faults or defaults of this Corporation in any
further sum than the unpaid balance of the consideration, if any,
due the Corporation on the shares of stock owned by him; nor
shall any mere informality in organization or consolidation have
the effect of rendering this agreement null, or of exposing a
stockholder to any liability beyond the unpaid amount remaining
due on his said stock.
NINTH: The officers of the Corporation shall have and
exercise such powers and duties as may be conferred upon them by
the Board of Directors or the Executive Committee of the
Corporation.
TENTH: The rights of creditors and all liens upon the
property of each of the parties hereto shall be preserved
unimpaired and the property and franchises of each of said
corporations, parties hereto, shall pass to and vest in the
Corporation, subject to all lawful debts, guarantees, liabilities
and obligations existing against each of said corporations,
except as herein otherwise provided, and all of said debts,
liabilities and obligations of the New Orleans Company and/or the
Consumers Company and/or the Citizens Company, parties hereto,
shall be provided for, paid and discharged by the Corporation,
except as herein otherwise provided, and all contracts and
agreements existing between each of said corporations, parties
hereto, and any other person, firm or corporation shall be
carried out and performed by the Corporation.
All of the rights and obligations of the New Orleans Company
arising out of and/or imposed by Ordinance No. 6822 Commission
Council Series of the City of New Orleans, adopted April 18,
1922, and known as the "Settlement Ordinance", and Ordinances
Nos. 7067, 7068 and 7069, respectively, Commission Council Series
of the City of New Orleans, adopted September 2,1922,
supplemental thereto, and/or other ordinances supplemental
thereto or amendatory thereof, shall pass to and be assumed by
the Corporation, and nothing herein contained shall be construed
as changing, affecting or impairing the provisions of said
ordinances, as presently existing.
*******************
Effective November 30, 1999
Exhibit 3(b)
BY-LAWS
OF
ENTERGY NEW ORLEANS, INC.
ARTICLE I.
OFFICES
The principal business office of the Corporation shall be
in New Orleans, Louisiana, or in such other location as
designated by the Board of Directors. The Corporation may also
have offices at such other places as the Board of Directors may
from time to time designate or the business of the Corporation
may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of stockholders,
whether annual or special, shall be held at a location fixed by
the Board of Directors or by the stockholders.
SECTION 2. Annual Meeting. The annual meeting of
stockholders for the election of Directors and the transaction of
such other business as may properly come before the meeting shall
be held on such date and at such time of day as shall have been
fixed by the Board of Directors or by the stockholders.
SECTION 3. Special Meetings. Special meetings of the
stockholders may be held at any time upon the call of (i) a
majority of the entire Board of Directors, (ii) the President,
(iii) the Chairman of the Board, (iv) the person, if any,
designated by the Board of Directors as the Chief Executive
Officer, or (v) the holders of not less than a majority of the
outstanding stock entitled to vote at the special meeting.
SECTION 4. Organization. The Chief Executive Officer or,
in his absence, a person appointed by him or, in default of such
appointment, the officer next in seniority of position (as
determined by the Secretary or, in the Secretary's absence, the
Assistant Secretary), shall call meetings of the stockholders to
order and shall act as chairman thereof. The Secretary of the
Corporation, if present, shall act as secretary of all meetings
of stockholders, and, in his absence, the presiding officer may
appoint a secretary.
SECTION 5. Action by Consent. Any action required or
permitted to be taken at any meeting of the stockholders, whether
annual or special, may be taken without a meeting, if prior to
such action a written consent thereto is signed by a sufficient
percentage of shareholders to satisfy the minimum requirements of
state law.
ARTICLE III.
DIRECTORS
SECTION 1. General Powers. The property, affairs and
business of the Corporation shall be managed by the Board of
Directors.
SECTION 2. Term of Office. The term of office of each
Director shall be until the next annual meeting of stockholders
and until his or her successor is duly elected and qualified or
until the earlier death, resignation or removal of such Director.
SECTION 3. Number of Directors. The number of Directors
which shall constitute the whole Board of Directors shall be not
more than fifteen (15) nor less than three (3), with the exact
number at any given time to be fixed by a resolution of the Board
of Directors or by the stockholders.
SECTION 4. Meetings; Notice. Meetings of the Board of
Directors shall be held at such place as may from time to time be
fixed by resolution of the Board or by the Chairman of the Board,
the Vice Chairman, the President or a Vice President and as may
be specified in the notice or waiver of notice of any meeting.
Notice may be written, electronic or oral and may be given at any
time prior to the meeting. Notice may be waived by a Director
either prior to or following a meeting. Directors present at a
meeting shall be deemed to have waived notice thereof. Meetings
of the Board of Directors, or any committee thereof, may be held
by means of a video conference, a telephone conference or similar
communications equipment.
SECTION 5. Quorum. A majority of the Board of Directors
shall be necessary to constitute a quorum for the transaction of
business, and the act of a majority of the Directors present at a
meeting at which a quorum is present shall be the act of the
Board of Directors. If a quorum is present when the meeting is
convened, the Directors present may continue to conduct the
business of the meeting, taking action by vote of a majority of a
quorum as fixed above, until adjournment, notwithstanding the
withdrawal of enough Directors to leave less than a quorum as
fixed above, or the refusal of any Director present to vote.
SECTION 6. Action By Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting if, prior
to such action, a written consent thereto is signed by all
members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the minutes
of proceedings of the Board of Directors or such committee, as
the case may be.
SECTION 7. Advisory Directors. The stockholders or the
Board of Directors may elect one or more Advisory Directors of
the Corporation. Advisory Directors may be called upon
individually or as a group by the Board of Directors or Officers
of the Corporation to give advice and counsel to the Corporation.
Advisory Directors shall receive from the Corporation such
remuneration as shall be fixed by the Board of Directors. Terms
of Advisory Directors shall expire on the day of the Annual
Meeting of the Corporation, provided, however, that Advisory
Directors shall serve at the pleasure of the Board of Directors
and may be removed at any time with or without cause by a vote of
the Board of Directors. For the purpose of Article IX
(Indemnification) of these By-Laws, Advisory Directors of the
Corporation shall enjoy the same rights and privileges as
Directors of the Corporation.
SECTION 8. Vacancies; Removal. Vacancies and newly
created directorships resulting from any increase in the
authorized number of Directors may be filled by the stockholders
or by the Board of Directors, and the Directors so chosen shall
hold office until the next annual election. The stockholders may
by majority vote remove any Director from his directorship,
whether cause shall be assigned for such removal or not.
ARTICLE IV.
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, establish an Executive Committee of not less than two
or more than five members, to serve at the pleasure of the Board
of Directors, which Executive Committee shall consist of such
directors as the Board of Directors may from time to time
designate.
SECTION 2. Procedure. The Executive Committee shall meet
at the call of any of the members of the Executive Committee. 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 full extent
authorized by law, all the powers of the Board of Directors in
the management and direction of the business and affairs of the
Corporation. The taking of an 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; provided, however,
that no such committee shall be authorized to exercise the powers
of the Board of Directors. The quorum of any such committee so
appointed shall be a majority of the membership of that
committee.
ARTICLE V.
OFFICERS
SECTION 1. Required and Discretionary Officers. The Board
of Directors shall elect individuals to occupy at least three
executive offices: President, Secretary and Treasurer. In its
discretion, the Board of Directors may elect individuals to
occupy other executive offices, including Chief Executive
Officer, Chief Operating Officer, Vice President and such other
executive offices as the Board shall designate. Officers shall be
elected annually and shall hold office until their respective
successors shall have been duly elected and qualified, or until
such officer shall have died or resigned or shall have been
removed by majority vote of the whole Board of Directors. To the
extent permitted by law, individuals may occupy more than one
office.
SECTION 2. President. The President shall perform duties
incident to the office of the president of a corporation and such
other duties as from time to time may be assigned to him or her
by the Board of Directors, by the Executive Committee or, if the
Board has elected a Chief Executive Officer and if the Chief
Executive Officer is not the President, by the Chief Executive
Officer.
SECTION 3. Vice Presidents. Each Vice President shall have
such powers and shall perform such duties as from time to time
may be conferred upon or assigned to him or her by the Board of
Directors, the Executive Committee, the President or the Chief
Executive Officer.
SECTION 4. 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 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, he may attest the
same; and, in general, shall perform all duties incident to the
office of the secretary of a corporation, and such other duties
as from time to time may be assigned to the Secretary by the
Chief Executive Officer, the Chairman of the Board, the Vice
Chairman, the President, the Board of Directors or the Executive
Committee. 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
addresses of record, the number of shares held by them
respectively, and the date when they respectively became the
owners of stock of the Corporation.
SECTION 5. 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
Treasurer, by an assistant Treasurer or by any other individual
designated by the Board of Directors. The Treasurer 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 of the
Corporation and pay out and dispose of the proceeds as the Board
of Directors may authorize; shall render or cause to be rendered
to the Chairman of the Board, the President and the Board of
Directors, whenever requested, an account of the financial
condition 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 to him by the Chairman of the Board, the Vice Chairman,
the President, the Board of Directors or the Executive Committee.
SECTION 6. Subordinate Officers. The Board of Directors may
appoint such assistant secretaries, assistant treasurers and
other 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 any officer to
appoint and remove such officers and to prescribe the powers and
duties thereof.
SECTION 7. Vacancies; Absences. Any vacancy in any of the
above offices may be filled by the Board of Directors at any
regular or special meeting. Except when the law requires the act
of a particular officer, the Board of Directors or the Executive
Committee, whenever necessary, may, in the absence of any
officer, designate any other officer or properly qualified
employee, to perform the duties of the absent officer 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 8. Resignations. Any officer may resign at any time
by giving written notice of such resignation to the Board of
Directors, the Chairman of the Board, the Vice Chairman, the
President or the Secretary. Unless otherwise specified therein,
such resignation shall take effect upon written receipt thereof
by the Board of Directors or by such officer.
ARTICLE VI.
CAPITAL STOCK
SECTION 1. Stock Certificates. Every stockholder shall be
entitled to have a certificate certifying the number of shares
owned by him in the Corporation. Stock certificates shall be
signed by the Chairman of the Board, the Vice Chairman of the
Board, the President or a Vice President and by the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Such seal may be facsimile, engraved or printed. Where such
certificate is signed (1) by a transfer agent or an assistant
transfer agent, other than the Corporation itself, or (2) by a
transfer clerk acting on behalf of the Corporation and a
registrar, the signature of the Chairman of the Board, the Vice
Chairman of the Board, the President, Vice President, Treasurer,
Secretary, Assistant Treasurer or Assistant Secretary may be
facsimile. In case any officer or officers who shall have signed,
or whose facsimile signature or signatures shall have been used
on any such certificate or certificates shall cease to be such
officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates
shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile
signature or signatures shall have been used thereon had not
ceased to be such officer or officers of the Corporation.
SECTION 2. Transfer of Shares. The shares of stock of the
Corporation shall be transferred on the books of the Corporation
by the holder thereof in person or by his attorney lawfully
constituted, upon surrender for cancellation of certificates for
the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed,
with such proof or guaranty of the authenticity of the signature
as the Corporation or its agents may reasonably require. The
Board of Directors may appoint one or more transfer agents and
registrars of the stock of the Corporation. The Corporation shall
be entitled to treat the holder of record of any share or shares
of stock as the holder in fact and legal owner 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 law.
SECTION 3. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, mutilated or destroyed,
and may require the making of an affidavit of that fact by the
person claiming the certificate of stock 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 give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged
to have been lost, mutilated or destroyed.
ARTICLE VII.
CHECKS, NOTES, ETC.
SECTION 1. Execution of Checks, Notes, etc. All checks and
drafts on the Corporation's bank accounts and all bills of
exchange, promissory notes, acceptances, obligations and other
instruments for the payment of money, shall be signed by such
officer or officers, person or persons, as shall be thereunto
authorized by the Board of Directors or as may be designated in a
manner authorized by the Board of Directors.
SECTION 2. Execution of Contracts, Assignments, etc.
All contracts, agreements, endorsements, assignments, transfers,
stock powers, and other instruments shall be signed by such officer
or officers, person or persons, as shall be thereunto authorized
by the Board of Directors or as may be designated in a manner
authorized by the Board of Directors.
SECTION 3. Voting of Stock and Execution of Proxies. The
Chairman of the Board, the Vice Chairman, the President or any
Vice President or any other officer of the Corporation designated
by the Board of Directors, the Chairman of the Board, or the
President shall be authorized to attend any meeting of the
stockholders of any other corporation in which the Corporation is
an owner of stock and to vote such stock upon all matters coming
before such meeting. The Chairman of the Board, the Vice
Chairman, the President or any Vice President may sign and issue
proxies to vote shares of stock of other corporations owned by
the Corporation.
ARTICLE VIII.
SEAL
The seal of the Corporation shall show the year of its
incorporation and shall be in such form as the Board of Directors
shall prescribe. The seal on any corporate obligation for the
payment of money may be a facsimile, engraved or printed.
ARTICLE IX.
INDEMNIFICATION
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
such person 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),
judgements, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such Action if such
person acted in good faith and in a manner such person 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 the conduct was unlawful. The
termination of any Action by judgement, 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 such person
reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal Action or
proceeding, had reasonable cause to believe that the conduct was
unlawful.
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 Action by or in the
right of the Corporation to procure a judgement in its favor by
reason of the fact that such person 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 and
amounts paid in settlement not exceeding the estimated expense of
litigating the Action to a conclusion) actually and reasonably
incurred by such person in connection with the defense or
settlement of such Action if such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to the best interest of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of such
person's duty to the Corporation unless and only to the extent
that the court in which such Action was brought shall determine
upon application that, despite the adjudication of liability but
in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such
court shall deem proper.
SECTION 3. Mandatory Indemnification - Successful Party. To
the extent that a director, officer, employee or agent of the
Corporation, or any person who 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, has been successful on the merits or otherwise in the
defense of any such Action, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
SECTION 4. Permissive Indemnification. Notwithstanding any
limitations of the indemnification provided by Sections 1 and 2,
the Corporation may, to the fullest extent authorized by law,
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 such person
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), judgements, fines and amounts paid in
settlement actually and reasonably incurred by such person 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 Sections 1,
2 or 4 (unless ordered by a court) shall be made by the
Corporation only as authorized by the Board of Directors (which
may so act whether or not there is a sufficient number of
disinterested directors to constitute a quorum) in the specific
case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because
such person has met the applicable standards of conduct set forth
in Sections 1 and 2 or is entitled to indemnification under
Section 4. Such determination, in the case of indemnification
made pursuant to Section 1 or Section 2 shall be made (1) by the
Board of Directors by a majority vote of a quorum, as defined in
the Certificate of Incorporation or the By-Laws, consisting of
directors who are not or were not parties to any pending or
completed Action giving rise to the proposed indemnification, or
(2) if such a quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs, by independent
legal counsel (who may be, but need not be, outside counsel to
the Corporation) in a written opinion, or (3) by the
shareholder(s) of the Corporation. Such determination, in the
case of indemnification made pursuant to Section 4, shall be made
by the Board of Directors by a majority vote of a quorum, as
defined in the Certificate of Incorporation or the By-Laws,
consisting of directors who are not or were not parties to any
pending or completed Action giving rise to the proposed
indemnification or by the shareholders.
SECTION 6. Advance Payments. Expenses (including attorneys'
fees) incurred or reasonably expected to be incurred by a
director, officer or employee of the Corporation in defending
against any claim asserted or threatened against such person in
such capacity or arising out of such person's status as such
shall be paid by the Corporation in advance of the final
determination thereof, if authorized by the Board of Directors
(which may so act whether or not there is a sufficient number of
disinterested directors to constitute a quorum) upon receipt by
the Corporation of his written request therefor and such person's
written promise to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by
the Corporation as authorized or required in this article.
SECTION 7. Provisions Not Exclusive. The indemnification
provided by this Article shall not be deemed exclusive of any
other rights to which any person seeking indemnification may be
entitled under any law, Bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, 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. Miscellaneous. For purposes of this Article, and
without any limitation whatsoever upon the generality thereof,
the term "fines" as used herein shall be deemed to include (i)
penalties imposed by the Nuclear Regulatory Commission (the
"NRC") pursuant to Section 206 of the Energy Reorganization Act
of 1974 and Part 21 of NRC regulations thereunder, as they may be
amended from time to time, and any other penalties, whether
similar or dissimilar, imposed by the NRC, and (ii) excise taxes
assessed with respect to an employee benefit plan pursuant to the
Employee Retirement Income Security Act of 1974, as it may be
amended from time to time, ("ERISA"). For purposes of determining
the entitlement of a director, officer or employee of the
Corporation to indemnification under this Article, the term
"other enterprise" shall be deemed to include an employee benefit
plan governed by ERISA. The Corporation shall be deemed to have
requested such person to serve as a director, officer or employee
of such a plan where such person is a trustee of the plan or
where the performance by such person of his duties to the
Corporation also imposes duties on, or otherwise involves
services by, such person to such plan or its participants or
beneficiaries, and action taken or permitted by such person in
the performance of his duties with respect to such employee
benefit plan for which is a purpose reasonably believed by him to
be in the interest of the participants and beneficiaries of the
plan, shall be deemed to meet the standard of conduct required
for indemnification hereunder. Any act, omission, step or conduct
taken or had in good faith which is required, authorized or
approved by any order or orders issued pursuant to the Public
Utility Holding Company Act of 1935 or any other federal statute
or any state statute or municipal ordinance shall be deemed to
meet the standard of conduct required for indemnification
hereunder.
ARTICLE X.
CONFLICTS
In the event that any provisions of these By-Laws conflict
with the Articles of Incorporation or with state or federal
statutes, the Articles of Incorporation or such statutes shall
take precedence over such provisions of these By-Laws.
ARTICLE XI.
AMENDMENTS
Subject to the provisions of applicable law and of the
Articles of Incorporation, these By-Laws may be altered, amended
or repealed and new By-Laws adopted either by the stockholders or
by the Board of Directors.
Exhibit 5(a)
January 27, 2000
Entergy New Orleans, Inc.
1600 Perdido Street
New Orleans, Louisiana 70119
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3,
including the exhibits thereto, which Entergy New Orleans,
Inc. (the "Company") proposes to file with the Securities
and Exchange Commission (the "Commission") on or shortly
after the date hereof, for the registration under the
Securities Act of 1933, as amended (the "Securities Act"),
of $140,000,000 in aggregate principal amount of its General
and Refunding Mortgage Bonds (the "Bonds") to be issued in
one or more new series, and for the qualification under the
Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Company's Mortgage and Deed of
Trust, dated as of May 1, 1987, as heretofore amended and
supplemented, under which the Bonds are to be issued (the
"Mortgage"), I advise you that in my opinion:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Louisiana.
(2) All action necessary to make valid and legal the
proposed issuance and sale by the Company of the Bonds will
have been taken when:
(a) the Company's Registration Statement on
Form S-3, as it may be amended, shall have
become effective in accordance with the
applicable provisions of the Securities Act,
and a supplement or supplements to the
prospectus specifying certain terms with
respect to the offering or offerings of
the Bonds and the other information
shall have been filed with the Commission,
and the Mortgage shall have been qualified
under the Trust Indenture Act;
(b) an approval for the issuance and sale of the Bonds
shall have been obtained from the City Council of
the City of New Orleans;
(c) appropriate action shall have been taken by the Board
of Directors of the Company and/or by the Executive
Committee thereof for the purpose of authorizing
the consummation of the issuance and sale of the Bonds;
(d) supplemental indenture to the Mortgage relating to the
Bonds being issued, shall have been duly executed and
delivered; and
(e) the Bonds shall have been issued and delivered for the
consideration contemplated by and otherwise
in conformity with the acts, proceedings and
documents referred to above.
(3) When the foregoing steps applicable to the Bonds
have been taken, the Bonds will have been legally issued and
will be valid and binding obligations of the Company
enforceable in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
by general equitable principles (whether considered in a
proceeding in equity or at law).
This opinion does not pass upon the matter of
compliance with "blue sky" laws or similar laws relating to
the sale or distribution of the Bonds by underwriters.
I am a member of the Louisiana Bar and, for
purposes of this opinion, do not hold myself out as an
expert on the laws of any other state.
I hereby consent to the use of this opinion as an
exhibit to the Company's Registration Statement on Form S-3
and consent to such references to me and to this legal
opinion as may be made in the Registration Statement and in
the Prospectus constituting a part thereof.
Very truly yours,
/s/ Laurence M. Hamric
Laurence M. Hamric
Exhibit 25(a)
____________________________________________________________________________
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to
Section 305(b)___
HARRIS TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-4941093
(State of incorporation or organization (I.R.S. employer
if not a U.S. national bank) identification no.)
Wall Street Plaza, 88 Pine Street, 19th Floor
New York, New York 10005
(Address of trustee's principal executive offices) (Zip code)
Mark F. McLaughlin
Harris Trust Company of New York
Wall Street Plaza, 88 Pine Street, 19th Floor
New York, NY 10005
(212) 701-7602
(Name, address and telephone number of agent for service)
____________________________________
ENTERGY NEW ORLEANS, INC.
(Exact name of obligor as specified in its charter)
LOUSIANA 72-0273040
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1600 Perdido Street
New Orleans, LA 70119
(504) 670-3600
(Address of principal executive offices)
______________________________________
General and Refunding Bonds
designated as
First Mortgage Bonds
(Title of Securities)
____________________________________________________________________________
____________________________________________________________________________
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Reserve Bank of New York
33 Liberty Street, New York N.Y. 10045
State of New York Banking Department
2 Rector Street, New York, N.Y. 10006
(b) Whether it is authorized to exercise corporate trust
powers.
The Trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under
another indenture under which any other
securities, or certificates of interest or
participation in any other securities, of the
obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such
other indenture.
All securities currently outstanding for
which Harris Trust Company of New York
acts as Trustee for Entergy New Orleans,
Inc. are under the Mortgage and Deed of
Trust, as supplemented, dated as of
April 1, 1987.
(b) A brief statement of the facts relied
upon as a basis for the claim that no
conflicting interest within the meaning of
Section 310 (b) (1) of the Act arises as a
result of the trusteeship under any such
other indenture, including a statement as to
how the indenture securities will rank as
compared with the securities issued under
such other indenture.
The indenture to be qualified and
the indenture(s) referred to in
paragraph (a) rank pari passu.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
A. Copy of Organization Certificate of
Harris Trust Company of New York to transact
business and exercise corporate trust powers;
attached hereto as Exhibit "A"
B. Copy of the existing By-Laws of Harris
Trust Company of New York; incorporated
herein by reference as Exhibit "B" filed with
Form T-1 Statement, Registration No. 33-46118
C. The consent of the Trustee required by
Section 321(b) of the Act; incorporated
herein by reference as Exhibit "C" with Form
T-1 Statement, Registration No. 33-46118
D. A copy of the latest report of condition
of Harris Trust Company of New York published
pursuant to law or the requirements of its
supervising or examining authority, attached
hereto as Exhibit "D"
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, Harris Trust Company of New York, a corporation
organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of New York, and State of New York, on the 21st day of
December, 1999.
HARRIS TRUST COMPANY OF NEW YORK
By: /s/ Peter Morse
Peter Morse
Vice President
<PAGE>
EXHIBIT "A", 1
STATE OF NEW YORK
BANKING DEPARTMENT
I, ROBERT H. McCORMICK, Deputy Superintendent of Banks of the
State of New York, DO HEREBY APPROVE, pursuant to the provisions
of Section 601-b of the New York Banking Law, an AGREEMENT AND
PLAN OF MERGER, dated as of March 18, 1999, providing for the
merger of the HARRIS TRUST COMPANY OF NEW YORK, New York, New
York, with and into the BANK OF MONTREAL TRUST COMPANY, New York,
New York, under the name BANK OF MONTREAL TRUST COMPANY, said
merger to become effective upon the filing of the AGREEMENT AND
PLAN OF MERGER in the office of the Superintendent of Banks.
WITNESS, my hand and official seal of the Banking Department at
the City of New York,
this 19th day of May in the Year of our Lord
one thousand nine hundred ninety-nine.
/s/ Robert H. McCormick
Deputy Superintendent of Banks
[SEAL]
<PAGE>
EXHIBIT "A", 2
STATE OF NEW YORK
BANKING DEPARTMENT
WHEREAS on July 1, 1999 BANK OF MONTREAL TRUST COMPANY merged
into itself HARRIS TRUST COMPANY OF NEW YORK.
WHEREAS BANK OF MONTREAL TRUST COMPANY submitted a Certificate of
Amendment to the Organization Certificate to authorize the
amendment of the Certificate of Organization to change its name
to HARRIS TRUST COMPANY OF NEW YORK.
WHEREAS, there appears to be no reasonable objection to such
change of name:
NOW THEREFORE, I, ROBERT H. McCORMICK, Deputy Superintendent of
Banks of the State of New York, DO HEREBY CONSNET TO AND APPROVE
OF the aforementioned change of name to be effective July 1,
1999.
WITNESS, my hand and official seal of the Banking Department at
the City of New York,
this 30th day of September in the Year of our Lord
one thousand nine hundred ninety-nine.
/s/ Robert H. McCormick
Deputy Superintendent of Banks
[SEAL]
<PAGE>
EXHIBIT "D"
STATEMENT OF CONDITION
HARRIS TRUST COMPANY OF NEW YORK
_________________________________
ASSETS
Due From Banks $4,209,001
Investment Securities:
State & Municipal 11,138,164
Other 100
-----------
Total Securities 11,138,264
Loans and Advances
Federal Funds Sold 7,890,000
-----------
Total Loans and Advances 7,890,000
Premises and Equipment 867,056
Other Assets 5,679,943
-----------
6,546,999
-----------
TOTAL ASSETS $29,784,264
===========
LIABILITIES
Other Liabilities 2,882,378
-----------
TOTAL LIABILITIES 2,882,378
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 15,000 Shares of $100 Each 1,500,000
Surplus 17,322,188
Retained Earnings 8,209,241
Equity - Municipal Gain/Loss (129,543)
-----------
TOTAL CAPITAL ACCOUNTS 26,901,886
-----------
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $29,784,264
===========
I, Mark F. McLaughlin, Vice President, of the above-named
bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Mark F. McLaughlin
September 30, 1999
We, the undersigned directors, attest to the correctness of
this statement of resources and liabilities. We declared that it
has been examined by us and to the best of our knowledge and
belief has been prepared in conformance with the instructions and
is true and correct.
Sanjiv Tandon
Kevin O. Healy
Steven R. Rothbloom
Exhibit 25(b)
____________________________________________________________________________
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM T-2
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF AN INDIVIDUAL DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to
Section 305(b)2___
Mark F. McLaughlin ###-##-####
(Name of trustee) (Social Security Number)
Wall Street Plaza
88 Pine Street
New York, New York 10005
(Business address, street, city,
state and zip code)
ENTERGY NEW ORLEANS, INC.
(Exact name of obligor as
specified in its charter)
72-0273040.
(I.R.S. employer identification no.)
1600 Perdido Street
New Orleans, LA 70119
(504) 670-3600
(Address of principal executive offices)
General and Refunding Bonds
Designated as
First Mortgage Bonds
(Title of Securities)
____________________________________________________________________________
____________________________________________________________________________
<PAGE>
Item 1. Affiliations with Obligor.
There are no affiliations with the obligor.
Item 11. List of Exhibits.
None
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 I, Mark McLaughlin, have signed this statement of
eligibility in the City of New York, and State of New York, on
the 14th day of January, 2000.
By: /s/ Mark McLaughlin
Mark McLaughlin
