UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
In the Matter of
CERTIFICATE PURSUANT
ENTERGY ARKANSAS, INC. TO RULE 24
File No. 70-8761
Public Utility Holding Company
Act of 1935
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that the
transactions proposed by Entergy Arkansas, Inc. ("Arkansas") in
the Application-Declaration on Form U-1 in the above file, as
amended ("Application"), have been carried out in accordance with
the terms and conditions of, and for the purposes represented by,
the Application and pursuant to the order of the Securities and
Exchange Commission with respect thereto dated May 3, 1996.
On July 31, 1996, Arkansas purchased 68 shares of
common stock of The Arklahoma Corporation, an Arkansas
corporation, from Oklahoma Gas and Electric Company for a
purchase price of $47,872.
Attached hereto, and incorporated herein by reference,
is the definitive form of Stock Purchase Agreement setting forth
the terms and conditions of Arkansas' purchase of said stock.
B-l Stock Purchase Agreement, dated August
31, 1996, by and among Entergy Arkansas, Inc.,
Southwestern Electric Power Company and Oklahoma
Gas and Electric Company.
IN WITNESS WHEREOF, Arkansas has caused this
Certificate to be executed this 7th day of August, 1996.
ENTERGY ARKANSAS, INC.
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer
Exhibit B-1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is
made and entered into this 31st day of July, 1996, by and among
ENTERGY ARKANSAS, INC. (formerly Arkansas Power & Light Company),
an Arkansas corporation ("Arkansas"), SOUTHWESTERN ELECTRIC POWER
COMPANY, a Delaware corporation ("SWEPCO"), and OKLAHOMA GAS AND
ELECTRIC COMPANY, an Oklahoma corporation ("OG&E").
W I T N E S S E T H:
WHEREAS, Arkansas, SWEPCO and OG&E, own, respectively,
one hundred seventy (170) shares, one hundred sixty (160) shares
and one hundred seventy (170) shares of common stock, $100 par
value, of The Arklahoma Corporation, an Arkansas corporation
("Arklahoma"), representing all of the outstanding shares of
capital stock of Arklahoma (the "Shares");
WHEREAS, Arklahoma owns certain facilities consisting
of (i) a 161 KV transmission line extending from Lake Catherine,
Arkansas to Boudinot Tap, near Tahlequah, Oklahoma, (ii) the Lake
Catherine substation at a terminus of said transmission line and
(iii) certain property incidental thereto (collectively, the
"Facilities");
WHEREAS, Arklahoma leases such facilities to Arkansas,
SWEPCO and OG&E pursuant to an Agreement and Indenture, dated as
of December 9, 1947, as extended by an Extension of Agreement and
Indenture, dated September 6, 1977 (collectively, the "Lease");
WHEREAS, such facilities are jointly operated by
Arkansas, SWEPCO and OG&E pursuant to an Operating Agreement,
dated December 9, 1947 ("Operating Agreement");
WHEREAS, in order to facilitate the formation by OG&E
of a holding company system exempt from the registration
requirements of the Public Utility Holding Company Act of 1935,
as amended (the "'35 Act"), OG&E desires to reduce its ownership
of the outstanding Shares to less than five percent by selling
sixty-eight (68) Shares to Arkansas and seventy-eight (78) Shares
to SWEPCO; and
WHEREAS, Arkansas and SWEPCO have agreed to acquire
such Shares in accordance with the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and
conditions herein stated, (a) OG&E agrees to sell, assign,
transfer and deliver to Arkansas, and Arkansas agrees to purchase
from OG&E, sixty-eight (68) Shares and (b) OG&E agrees to sell,
assign, transfer and deliver to SWEPCO, and SWEPCO agrees to
purchase from OG&E, seventy-eight (78) Shares.
2. Purchase Price. In full consideration for the purchase
by Arkansas and SWEPCO of the Shares to be purchased by them,
respectively, (a) Arkansas shall pay to OG&E an aggregate of
Forty-seven Thousand Eight Hundred Seventy-two Dollars ($47,872),
and (b) SWEPCO shall pay to OG&E an aggregate of Fifty-four
Thousand Nine Hundred Twelve Dollars ($54,912).
3. Closing. The closing of the transactions provided for
herein shall take place concurrently with the execution and
delivery of this Agreement.
4. Deliveries at Closing. The following deliveries shall
be made by the respective parties hereto:
4.1. OG&E's Deliveries. OG&E shall deliver to Arkansas
and SWEPCO the following:
(a) Stock certificates representing sixty-eight (68)
Shares and seventy-eight (78) Shares, respectively, duly endorsed
in blank with all necessary transfer tax and other revenue
stamps, if any, acquired at OG&E's expense, affixed and canceled.
OG&E agrees to cure any deficiencies with respect to the
endorsement of the certificates representing the Shares or with
respect to the stock power accompanying any such certificates.
(b) Such other documents, certificates and opinions as
reasonably may be required by Arkansas and SWEPCO in order to (i)
demonstrate the accuracy of, or the compliance by OG&E with, all
of the representations, warranties, covenants and conditions set
forth herein, and (ii) consummate the transactions contemplated
hereby.
4.2. Arkansas' and SWEPCO's Deliveries. Arkansas and
SWEPCO shall deliver to OG&E, respectively, the payments referred
to in Paragraph 2 above by check or by wire transfer of
immediately available funds to the account of OG&E designated in
writing.
5. Provisions of Lease and Operating Agreement. Arkansas,
SWEPCO and OG&E hereby acknowledge that the sale of the Shares
will not, in itself, act to modify the rights and obligations of
the parties under the Lease and the Operating Agreement.
Notwithstanding the sale of the Shares contemplated herein, in
accordance with the provisions of the Lease and the Operating
Agreement (a) Arkansas, SWEPCO and OG&E shall continue to be
entitled to use up to but not in excess of one-third of the
capacity of the Facilities without payment for such use to either
of the other parties, and (b) all expenses, liabilities, losses,
damages, costs and other charges incurred by Arklahoma or arising
in connection with the operation or ownership of the Facilities
(whether incurred or arising prior to or after the sale of the
Shares) shall continue to be equally borne by Arkansas, SWEPCO
and OG&E.
6. Representations and Warranties.
6.1. OG&E's Representations and Warranties. OG&E
represents and warrants to Arkansas and SWEPCO, as of the date of
this Agreement, as follows:
(a) Corporate Standing; Authorization. OG&E is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Oklahoma with all requisite
corporate power, authority and legal right to execute, deliver,
and perform its obligations under this Agreement and to
consummate the transactions contemplated hereunder, and has taken
all necessary corporate action to authorize the sale of the
Shares hereunder on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of this
Agreement.
(b) Due Execution and Enforceability. This Agreement
is a valid and binding obligation of OG&E enforceable in
accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
of general application referring to or affecting the enforcement
of creditors' rights and general principles of equity.
(c) No Restrictions Against Performance. Neither the
execution, delivery, authorization or performance of this
Agreement, nor the consummation of the transactions contemplated
hereby will, with or without the giving of notice or the passage
of time, or both, violate any provisions of, conflict with,
result in a breach of, constitute a default under, or result in
the creation or imposition of any lien or condition under (i)
OG&E's Certificate of Incorporation or By-Laws; (ii) any federal,
state or local law, statute, ordinance, regulation or rule, which
is applicable to OG&E other than as set forth in paragraph 6.1(d)
hereof (provided that OG&E makes no representation as to any such
laws, statutes, ordinances, regulations or rules which require
consent, authorization or approval with respect to Arkansas or
SWEPCO); (iii) any contract, indenture, instrument, agreement,
mortgage, lease, right or other obligation or restriction to
which OG&E is a party or by which OG&E is bound; or (iv) any
order, judgment, writ, injunction, decree, license, franchise,
permit or other authorization of any federal, state or local
court, arbitration tribunal or governmental agency by which OG&E
is bound, any of which, when taken as a whole, would have a
material adverse affect on OG&E.
(d) Third-Party and Governmental Consents. No
approval, consent, waiver, order or authorization of, or
registration, qualification, declaration, or filings with, or
notice to, any federal, state or local governmental authority or
other third party is required on the part of OG&E in connection
with the execution of this Agreement or the consummation of the
sale of the Shares contemplated hereby, other than the approvals
of the Federal Energy Regulatory Commission, the Oklahoma
Corporation Commission and the Arkansas Public Service
Commission. Each of such approvals has been obtained prior to
the date hereof and has not been reversed, stayed, enjoined or
appealed.
(e) No Injunction. No action or proceeding by any
governmental authority or other person has been instituted or
threatened which could in any manner enjoin, restrain or
prohibit, or could result in substantial damages in respect of,
any provisions of this Agreement or the consummation of the
transactions contemplated hereby.
(f) No Litigation. No action or proceeding by any
governmental authority or other person is pending or has been
instituted or threatened which reasonably could be expected to
have an adverse effect on the business, operations, properties,
assets or financial condition of Arklahoma.
(g) Ownership of Shares. OG&E is the lawful owner of
one hundred seventy (170) Shares, free and clear of all liens,
charges, encumbrances, restrictions and claims of every kind;
OG&E has full legal right, power and authority to enter into this
Agreement and to sell, assign, transfer and convey the Shares
pursuant to this Agreement; the delivery to Arkansas and SWEPCO
of the Shares pursuant to the provisions of this Agreement will
transfer to Arkansas and SWEPCO, respectively, valid title
thereto, free and clear of all liens, encumbrances, restrictions
and claims of every kind.
6.2. Arkansas' and SWEPCO's Representations and
Warranties. Each of Arkansas and SWEPCO represents and warrants
to OG&E, with respect to itself only, as of the date of this
Agreement, as follows:
(a) Corporate Standing; Authorization. Arkansas and
SWEPCO are corporations duly organized, validly existing and in
good standing under the laws of the States of Arkansas and
Delaware, respectively. Each of Arkansas and SWEPCO has all
requisite corporate power, authority and legal right to execute,
deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereunder, and has taken
all necessary corporate action to authorize the purchase of the
Shares hereunder on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of this
Agreement.
(b) Due Execution and Enforceability. This Agreement
is a valid and binding obligation of Arkansas and SWEPCO, as the
case may be, enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application referring to or
affecting the enforcement of creditors' rights and general
principles of equity.
(c) No Restrictions Against Performance. Neither the
execution, delivery, authorization or performance of this
Agreement, nor the consummation of the transactions contemplated
hereby will, with or without the giving of notice or the passage
of time, or both, violate any provisions of, conflict with,
result in a breach of, constitute a default under, or result in
the creation or imposition of any lien or condition under (i)
Arkansas' or SWEPCO's Articles or Certificate of Incorporation or
By-Laws; (ii) any federal, state or local law, statute,
ordinance, regulation or rule, which is applicable to Arkansas or
SWEPCO, as the case may be, other than as set forth in paragraph
6.2(d) hereof (provided that Arkansas and SWEPCO make no
representation as to any such laws, statutes, ordinances,
regulations or rules which require consent, authorization or
approval with respect to OG&E); (iii) any contract, indenture,
instrument, agreement, mortgage, lease, right or other obligation
or restriction to which Arkansas or SWEPCO, as the case may be,
is a party or by which Arkansas or SWEPCO, as the case may be, is
bound; or (iv) any order, judgment, writ, injunction, decree,
license, franchise, permit or other authorization of any federal,
state or local court, arbitration tribunal or governmental agency
by which Arkansas or SWEPCO, as the case may be, is bound, any of
which, when taken as a whole, would have a material adverse
affect on Arkansas or SWEPCO, as the case may be.
(d) Third-Party and Governmental Consents. No
approval, consent, waiver, order or authorization of, or
registration, qualification, declaration, or filings with, or
notice to, any federal, state or local governmental authority or
other third party is required on the part of Arkansas or SWEPCO,
as the case may be, in connection with the execution of this
Agreement or the consummation of the sale of the Shares
contemplated hereby, other than the approvals of the Securities
and Exchange Commission under the '35 Act and the Arkansas Public
Service Commission. Each of such approvals has been obtained
prior to the date hereof and has not been reversed, stayed,
enjoined or appealed.
(e) No Injunction. No action or proceeding by any
governmental authority or other person has been instituted or
threatened which could enjoin, restrain or prohibit, or could
result in substantial damages in respect of, any provisions of
this Agreement or the consummation of the transactions
contemplated hereby.
7. Survival of Representations, Warranties and Agreements.
All of the parties' warranties, representations and covenants
contained in this Agreement or in any document delivered
hereunder shall survive the purchase and sale of the Shares
contemplated hereby.
8. Indemnification by OG&E. OG&E agrees to defend,
indemnify and hold Arkansas and SWEPCO and their respective
officers, directors and agents harmless from and against any and
all losses, liabilities, damages, costs, or expenses (including
reasonable attorneys' fees, penalties and interest) payable to or
for the benefit of, or asserted by, any party, resulting from,
arising out of, or incurred as a result of (a) the breach of any
representation made by OG&E herein or in accordance herewith; or
(b) the breach of any warranty or covenant made by OG&E herein or
in accordance herewith. The obligation to indemnify and hold
harmless pursuant to this Section shall survive the consummation
of the transactions contemplated hereby.
9. Expenses. OG&E shall pay its own and Arkansas' and
SWEPCO's expenses (including, without limitation, all filing fees
and the reasonable fees and expenses of their respective agents,
representatives, counsel, accountants and service companies)
incidental to (a) the negotiation, drafting, review and
performance of this Agreement and (b) the receipt of all
necessary regulatory approvals for the parties to consummate the
transactions contemplated hereby.
10. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of Arkansas, SWEPCO, OG&E
and their respective, successors, representatives and assigns.
11. Waiver. No provision of this Agreement shall be deemed
waived by course of conduct, including the act of closing, unless
such waiver is made in a writing signed by the parties hereto
stating that it is intended specifically to modify this
Agreement, nor shall any course of conduct operate or be
construed as a waiver of any subsequent breach of this Agreement,
whether of a similar or dissimilar nature.
12. Entire Agreement; Modification. This Agreement
supersedes any other agreement, whether written or oral, that may
have been made or entered into by Arkansas, SWEPCO and OG&E (or
by any director, officer, agent, or other representative of such
parties) relating to the matters contemplated hereby. This
Agreement constitutes the entire agreement between the parties
and there are no agreements or commitments except as expressly
set forth herein. This Agreement may be amended or modified only
by a written instrument executed by the parties hereto which
states specifically that it is intended to amend or modify this
Agreement.
13. Notices. All notices, demands, requests, and other
communications hereunder shall be in writing and shall be deemed
to have been duly given and shall be effective upon receipt if
delivered by hand, or sent by certified or registered United
States mail, postage prepaid and return receipt requested, or by
prepaid overnight express service. Notices shall be sent to the
parties at the following addresses (or at such other addresses
for a party as shall be specified by like notice; provided that
such notice shall be effective only upon receipt thereof): (a) if
to Arkansas: Entergy Arkansas, Inc., c/o Entergy Services, Inc.,
P.O. Box 61000, New Orleans, Louisiana 70161, Attention: Vice
President, Transmission and Distribution System, with copies to
Laurence M. Hamric, Esq., General Attorney-Corporate and
Securities, at the foregoing address, and to John T. Hood, Esq.,
Reid & Priest LLP, 40 West 57th Street, New York, New York 10019;
(b) if to SWEPCO: Southwestern Electric Power Company, 428 Travis
Street, P.O. Box 21106, Shreveport, Louisiana 71156, Attention:
Michael Madison, Vice President of Engineering and Operations,
with copies to Joris M. Hogan, Esq., Milbank, Tweed, Hadley and
McCloy, One Chase Manhattan Plaza, New York, New York 10005; or
(c) if to OG&E: Oklahoma Gas and Electric Company, 101 North
Robinson, Oklahoma City, Oklahoma 73101, Attention: James R.
Hatfield, Treasurer, with copies to Peter D. Clarke, Esq.,
Gardner, Carton & Douglas, 321 N. Clark Street, Chicago, Illinois
60610.
14. Governing Law. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in
accordance with the substantive laws of the State of Arkansas,
without giving effect to the principles of conflicts of law
thereof.
15. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above-written.
ENTERGY ARKANSAS, INC.
By: ___________________________________
Name:
Title:
SOUTHWESTERN ELECTRIC POWER COMPANY
By: ___________________________________
Name:
Title:
OKLAHOMA GAS AND ELECTRIC COMPANY
By: ___________________________________
Name:
Title:
