File No. 70-8105
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM U-1
_________________________________
POST-EFFECTIVE AMENDMENT NO. 5
TO
APPLICATION-DECLARATION
Under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
_________________________________
Entergy Corporation Entergy Enterprises, Inc.
639 Loyola Avenue Three Financial Centre
New Orleans, LA 70113 900 S. Shackleford Road
Suite 210
Little Rock, AR 72211
(Names of companies filing this statement and
addresses of principal executive offices)
________________________________
Entergy Corporation
(Name of top registered holding company parent
of each applicant or declarant)
________________________________
Jerry D. Jackson
Executive Vice President-External Affairs
Entergy Corporation
639 Loyola Avenue
New Orleans, Louisiana 70113
(Name and address of agent for service)
_________________________________
The Commission is also requested to send copies of any
communications in connection with this matter to:
Frederick F. Nugent Laurence M. Hamric
Entergy Enterprises, Inc. Mark W. Hoffman
Three Financial Centre Entergy Services, Inc.
Suite 210 639 Loyola Avenue
Little Rock, Arkansas 72211 New Orleans, LA 70113
<PAGE>
The Application-Declaration on Form U-1, dated November
30, 1992, as amended:
by Amendment No. 1, dated December 4, 1992;
by Amendment No. 2, dated April 1, 1993;
by Amendment No. 3, dated May 27, 1993;
by Amendment No. 4, dated June 23, 1993;
by Amendment No. 5, dated July 2, 1993;
by Amendment No. 6, dated July 7, 1993;
by Post-Effective Amendment No. 1, dated December 21, 1994;
by Post-Effective Amendment No. 2, dated February 24, 1995;
by Post-Effective Amendment No. 3, dated March 21, 1995; and
by Post-Effective Amendment No. 4, dated June 26, 1995, is
further amended as stated below:
Item 1. Description of Proposed Transactions.
I. Background
By order in this proceeding dated July 8, 1993 (HCAR No.
25848) (the "1993 Order"), Entergy Enterprises, Inc.
("Enterprises"), a wholly-owned non-utility subsidiary company of
Entergy Corporation ("Entergy"), a registered holding company
under the Public Utility Holding Company Act of 1935 (the "Act"),
was authorized by the Securities and Exchange Commission (the
"Commission") under the Act to (1) conduct preliminary
development activities ("Preliminary Development Activities")
with respect to potential investments by Entergy in various
energy, energy-related and other non-utility businesses
(collectively, "Permitted Investments"), (2) provide consulting
services ("Consulting Services") to non-associate companies,
utilizing the expertise and resources of the Entergy System
companies, and (3) provide certain management and administrative
support services ("Administrative Services") to associate
companies engaged in certain energy, energy-related and other non-
utility businesses (exclusive of associate companies which are
"exempt wholesale generators" ("EWGs") or foreign utility
companies ("FUCOs") under Sections 32 and 33, respectively, of
the Act). In addition, the 1993 Order authorized Enterprises to
receive certain administrative and other services from the
Entergy System's utility operating companies (the "System
Operating Companies" <FN1>) and Entergy's service company
subsidiary, Entergy Services, Inc. ("ESI"), in support of its
ongoing business activities.
Pursuant to a subsequent order of the Commission in
this File, dated June 30, 1995 (HCAR No. 26322) (the "1995
Order"), Enterprises' business authorization was expanded to
include the following additional activities:
1) the provision of Consulting Services to associate companies,
including EWGs, FUCOs and qualifying facilities ("QFs") under the
Public Utility Regulated Practices Act of 1978, as amended
(excluding the Operating Companies, ESI and such other existing
or new subsidiaries as Entergy may create, whose activities and
operations are primarily related to the domestic sale of electric
energy at retail or at wholesale to affiliates or the provision
of services or goods thereto (collectively, the "Excepted
Companies")).
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<FN1>The System Operating Companies currently consist of:
Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy
Louisiana, Inc., Entergy Mississippi, Inc., and Entergy New
Orleans, Inc.
<PAGE>
2) the provision of operations and management services ("O&M
Services"), directly or indirectly through newly established
subsidiaries ("O&M Subs") of Entergy or Enterprises, to
developers, owners and operators of domestic and foreign power
projects, including power projects that Enterprises may develop
on its own or in collaboration with third parties, and to other
associate companies, exclusive of the Excepted Companies.
Enterprises is authorized to render such O&M Services using its
own work force and the personnel and resources of the Excepted
Companies obtained pursuant to service agreements with such
companies, as they may be amended by order of the Commission in
File No. 70-8529.<FN2>
3) the licensing or other marketing to non-affiliates of
intellectual property (including software) and other products
acquired or developed by Entergy System companies.<FN3>
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<FN2>In the event that the proposed amendment to such service
agreements is approved by the Commission, the Excepted Companies
would be reimbursed for the fully allocated cost of any services
(including administrative and other services, as well as O&M
Services) provided to Enterprises or any O&M Sub, plus 5%.
<FN3>See the 1995 Order and Post-Effective Amendment No. 2 in
this File for certain provisions pertaining to the sharing of
costs and profits associated with the marketing by Enterprises of
products developed by the Excepted Companies.
<PAGE>
4) the provision of Administrative Services to all of
Enterprises' associate companies (exclusive of the Excepted
Companies), including associate EWGs and FUCOs.
Enterprises is also authorized under the 1995 Order to
provide Consulting Services and O&M Services to its
associate companies (excluding the Excepted Companies)
at fair market prices (and is granted an exemption
pursuant to Section 13(b) of the Act from the
requirements of Rules 90 and 91 thereunder, subject to
certain limitations with respect to the provision of
such services to associate power projects).
The 1995 Order further approves certain financing
transactions involving Entergy and Enterprises (to the
extent such transactions are not otherwise exempt under the
Act). Specifically, Entergy is authorized to provide
additional financing for the activities of Enterprises
(including the issuance of guarantees on behalf of
Enterprises), and Entergy and Enterprises are authorized to
organize and fund O&M Subs and to issue guarantees on behalf
of O&M Subs or other associate companies (other than the
Excepted Companies) from time to time through December 31,
1997, provided that the aggregate amount of such investments
and guarantees does not exceed $350 million at any one time
outstanding. (In support of its application seeking such
authorization, Entergy and Enterprises estimated that
approximately $250 million of the $350 million aggregate
investment limitation would be used in connection with the
issuance of guarantees.)
II. Requested Authorization
Enterprises hereby seeks authorization to engage in the
aforementioned previously authorized business activities and
related affiliate and financing transactions, either
directly or indirectly, through one or more new direct or
indirect wholly-owned subsidiaries (collectively,
"Enterprises Subs"). The applicants further seek
authorization to make investments in such Enterprises Subs
from time to time through December 31, 1997, in the form of
common stock purchases, capital contributions, open account
advances, loans, conversions of loans to capital
contributions and guarantees of indebtedness or other
obligations. Except to the extent such transactions are
exempt under the Act, the aggregate amount of such
investments (including guarantees) in or on behalf of such
Enterprises Subs, when added to (i) any investments made by
such Enterprises Subs in O&M Subs or any guarantees issued
by such Enterprises Subs on behalf of O&M Subs or other
associate companies (other than the Excepted Companies), and
(ii) any investments (including guarantees) currently
authorized to be made or issued by Entergy or Enterprises
under the 1995 Order, will not exceed the $350 million
investment limitation previously established in the 1995
Order. Applicants again estimate that approximately $250
million of the $350 million aggregate investment authority
will be used for guarantees.
Subject to any requisite further Commission approval,
no part of the proceeds of any investments made in any
Enterprises Sub will be used to finance investments in any
other business (except as described above), including the
business of an EWG, a FUCO or a QF.
With respect to compliance with Rule 53 under the Act,
Entergy currently meets, and would continue to meet after
giving effect to the transactions proposed herein, all of
the "safe harbor" conditions of the rule (even assuming that
the entire $250 million of the $350 million of "non-utility"
investments authorized by the 1995 Order is used to provide
guarantees to EWGs and FUCOs). Inclusive of such amount,
Entergy's "aggregate investment" in EWGs and FUCOs would be
approximately $993.2 million, representing approximately 44%
of the Entergy System's consolidated retained earnings as of
September 30, 1996. Furthermore, Entergy has complied with
and will continue to comply with the record keeping
requirements of Rule 53(a)(2) concerning affiliated EWGs and
FUCOs. In addition, as required by Rule 53(a)(3), no more
than 2% of the employees of the Entergy System's domestic
public utility subsidiary companies render services to
affiliated EWGs and FUCOs. Finally, none of the conditions
set forth in Rule 53(b), under which the provisions of Rule
53 would not be available, have been met. In light of the
foregoing, the requirements of Rule 54 will also be
satisfied. Therefore, pursuant to Rule 54, the Commission
shall not consider the effect of the capitalization or
earnings of its EWG or FUCO subsidiaries in determining
whether to approve the proposed transactions.
III. Periodic Reporting
Enterprises will continue to provide the Commission, on a
quarterly basis within 45 days after the end of each calendar
quarter, a report pursuant to Rule 24, which shall include the
following information (in addition to information previously
required to be reported): (1) amounts expended by Enterprises on
the formation and capitalization of any Enterprises Sub during
the quarter; (2) balance sheets and income statements for all
Enterprises Subs for the first, second, or third quarters then
ended; and (3) quarterly information regarding (a) amounts
expended by any Enterprises Sub on Preliminary Development
Activities during the quarter, broken down by the categories of
potential acquisitions of interests in Permitted Investments; (b)
the nature and extent of any Consulting Services, Administrative
Services and O&M Services provided directly or indirectly by
Enterprises Subs to associate and non-associate companies during
the quarter, identifying the customer company, the service and
the charge, and stating whether the charge was computed at cost,
market or pursuant to another method, which shall be specified;
and (c) amounts expended by any Enterprises Subs during the
quarter on the formation and capitalization of any O&M Sub.
Enterprises would also continue to file Annual Reports on Form U-
13-60 with the Commission.
Item 2. Fees, Commissions and Expenses.
The fees, commissions and expenses estimated to be
incurred in connection with the proposed transactions will be
supplied by amendment.
Item 3. Applicable Statutory Provisions.
The sections of the Act and the rules or exemptions
thereunder which Entergy and Enterprises consider applicable to
the proposed transactions, and the basis for exemption therefrom,
are set forth below:
(11) Issuance of capital stock by any Enterprises Sub -
Sections 6(a) and 7, Rule 52(b)(1).
(12) Issuance by Enterprises Sub or O&M Sub of debt
securities - Sections 6(a) and 7, Rule 52(b)(1).
(13) Acquisition by Entergy, Enterprises or Enterprises Sub
of capital stock or debt securities of Enterprises Sub
or O&M Sub - Sections 9(a) and 10, Rule 45(d).
(14) Preliminary Development Activities, Consulting Services
and O&M Services engaged in by Enterprises Sub -
Sections 9(a) and 10.
(15) Loans, guarantees, capital contributions and other
credit support arrangements by Entergy, Enterprises or
Enterprises Sub - Sections 12(b), 32 and 33, Rule 45.
(9) Administrative Services, Consulting Services and O&M
Services provided by Enterprises to Enterprises Sub or
by Enterprises or Enterprises Sub to certain associate
companies - Section 13(b), Rules 87(b)(1), 90 and 91.
(10) Exemption from "at cost" requirements of Act for
provision by Enterprises Sub of Consulting Services and
O&M Services to certain associate companies - Section
13(b).
To the extent that the proposed transactions are
considered by the Commission to require authorization, approval
or exemption under any Section of the Act or rules thereunder,
other than those specifically referred to above, request for such
authorization, approval or exemption is hereby made.
Item 4. Regulatory Approval.
No state or federal commission, other than the
Commission, has jurisdiction over the proposed transactions.
Item 5. Procedure.
Entergy and Enterprises request that the Commission
issue its order as soon as practicable but in any event no later
than January 31, 1997. Entergy and Enterprises hereby (1) waive
a recommended decision by a hearing officer or other responsible
officer of the Commission, (2) consent that the Division of
Investment Management may assist in the preparation of the
Commission's decision in this proceeding, and (3) request that
there be no waiting period between the issuance of the
Commission's order and the date on which it is to become
effective.
Item 6. Exhibits and Financial Statements.
(a) Exhibits:
A-1 Proposed Form of Certificate of Incorporation of
Enterprises Subs.
A-2 Proposed Form of By-Laws of Enterprises Subs
A-3 Restated Articles of Incorporation of Entergy
Enterprises, Inc. effective December 28, 1992.
F - Opinion of Counsel (to be filed by amendment).
H - Form of Notice of Proposed Transactions
(b) Financial Statements:
Financial Statements of
Entergy and of Entergy and
subsidiaries consolidated as of
September 30, 1996.
Financial Statements of
Enterprises as of September 30,
1996, including pro forma journal
entries.
Item 7. Information as to Environmental Effects.
(a) The Commission's action in this matter will
not constitute any major federal action significantly affecting
the quality of the human environment.
(b) No other federal agency has prepared or is
preparing an environmental impact statement with regard to the
proposed transactions.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned companies have duly
caused this amendment to be signed on their behalf by the
undersigned thereunto duly authorized.
ENTERGY CORPORATION
By: /s/Michael G. Thompson
Michael G. Thompson
Senior Vice President,
General Counsel and Secretary
ENTERGY ENTERPRISES, INC.
By: /s/Michael G. Thompson
Michael G. Thompson
Senior Vice President-Law
and Secretary
Dated: December 24, 1996
Exhibit A-1
FORM OF CERTIFICATE OF INCORPORATION
OF
[ENTERPRISES SUB]
FIRST: The name of the Corporation is [Enterprises
Sub]. (hereinafter the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name
of its registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in
any lawful act or activity for which a corporation may be
organized under the General Corporation Law of the State of
Delaware as set forth in Title 8 of the Delaware Code.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 3,000 shares of
capital stock having no par value per share and of one
class; such class is hereby designated as common stock.
FIFTH: The business and affairs of the Corporation
shall be managed by or under the direction of the Board of
Directors, which shall consist of not less than two (2) nor
more than fifteen (15) directors, the exact number of
directors to be determined from time to time by resolution
adopted by affirmative vote of a majority of the entire
Board of Directors. A director shall hold office until the
next succeeding annual meeting of stockholders and until his
successor shall be elected, subject, however, to prior
death, resignation, retirement or removal from office.
Vacancies occurring in the Board of Directors and newly
created directorships resulting from an increase in the
authorized number of directors may be filled by a majority
of the directors then in office, even if less than a quorum,
or by a sole remaining director. Any director elected to
fill a vacancy shall serve until the next succeeding annual
meeting of stockholders and until his or her successor shall
be elected and qualified.
SIXTH: In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is
expressly authorized to make, adopt, alter, amend, change or
repeal the Bylaws of the Corporation. In addition to the
powers and authority hereinbefore or by statute expressly
conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the statutes of Delaware,
this Certificate of Incorporation, and any Bylaws adopted by
the stockholders; provided, however, that no Bylaws
hereafter adopted by the stockholders or otherwise shall
invalidate any prior act of the directors which would have
been valid if such Bylaws had not been adopted.
SEVENTH: Notwithstanding any other provision of this
Certificate of Incorporation or the Bylaws of the
Corporation to the contrary, no action required to be taken
or which may be taken at any annual or special meeting of
stockholders of the Corporation may be taken by written
consent without such a meeting except any action taken upon
the signing of a consent in writing by the holders of not
less than the greater of (a) a majority of the outstanding
stock of the Corporation entitled to vote thereon and (b)
that number of shares of stock of the Corporation that would
be required to take such action at a special or annual
meeting of stockholders where holders of all outstanding
stock of the Corporation were present, setting forth the
action to be taken. Special meetings of stockholders of the
Corporation may be called only by the Board of Directors,
the Chairman of the Board, the person, if any, designated by
the Board of Directors as the Chief Executive Officer of the
Corporation, a majority of the members of the entire
Executive Committee of the Board of Directors, if there
shall be one, or by the holders of not less than a majority
of the outstanding stock of the Corporation entitled to vote
at the special meeting.
EIGHTH: A. To the fullest extent authorized or
permitted by the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended, a
director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
Any repeal or modification of this Section A of Article
EIGHTH shall not have any effect on the liability or alleged
liability of any director of this Corporation for any act or
omission of such director occurring prior to such repeal or
modification, or otherwise adversely affect any right or
protection of a director of the Corporation existing at the
time of such repeal or modification.
B. The Corporation shall indemnify its directors and
officers to the fullest extent authorized or permitted by
the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended, and such right to
indemnification shall continue as to a person who has ceased
to be a director or officer of the Corporation and shall
inure to the benefit of his or her heirs, executors and
administrators: provided, however, that, except for
proceedings to enforce rights to indemnification, the
Corporation shall not be obligated to indemnify any director
or officer (or his or her heirs, executors or
administrators) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or
part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in
this Section B of Article EIGHTH shall include the right to
be paid by the Corporation the expenses incurred in
defending or otherwise participating in any proceeding in
advance of its final disposition.
The Corporation may, to the extent authorized from time
to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to
employees and agents of the Corporation who are not
directors or officers similar to those conferred in this
Section B of Article EIGHTH to directors and officers of the
Corporation.
The rights to indemnification and to the advancement of
expenses conferred in this Section B of Article EIGHTH shall
not be exclusive or any other right which any person may
have or hereafter acquire under this Certificate of
Incorporation, the Bylaws, any statute, agreement, vote of
stockholders or disinterested directors, or otherwise.
Any repeal or modification of this Section B of Article
EIGHTH by the stockholders of the Corporation shall not
adversely affect any rights to indemnification and
advancement of expenses of a director or officer of the
Corporation existing pursuant to this Section B of Article
EIGHTH with respect to any acts or omissions occurring prior
to such repeal or modification.
C. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation,
partnership, joint venture, trust, employee benefit plan or
other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to
indemnify such person against such expense, liability or
loss under the General Corporation Law of the State of
Delaware. The Corporation may also obtain a letter of
credit, act as self-insurer, create a reserve, trust,
escrow, cash collateral or other fund or account, enter
into indemnification agreements, pledge or grant a security
interest in any assets or properties of the Corporation, or
use any other mechanism or arrangement whatsoever in such
amounts, at such costs, and upon such other terms and
conditions as the Board of Directors shall deem appropriate
for the protection of any or all such persons.
NINTH: Each of the directors of the Corporation may
be removed from office at any time, with or without cause,
but a director may be removed without cause only by the
affirmative vote of the holders of not less than two-thirds
of the outstanding stock of the Corporation then entitled to
vote for the election of such director.
TENTH: The name of the Incorporator is
_____________________ and his mailing address is 639 Loyola
Avenue, 26th Floor, New Orleans, LA 70113.
ELEVENTH : Meetings of stockholders may be held
within or without the State of Delaware, as the Bylaws may
provide. The books of the Corporation may be kept (subject
to any provision contained in the General Corporation Law of
the State of Delaware) outside the State of Delaware at such
place or places as may be designated from time to time by
the Board of Directors or in the Bylaws of the Corporation.
TWELFTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the Incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to
the General Corporation Law of the State of Delaware, do
make this Certificate hereby declaring and certifying that
this is my act and deed and the facts herein stated are
true, and accordingly have hereunto set my hand this ____
day of ________, 199__.
By:____________________________
_____________________
Incorporator
Witness:
______________________________
Exhibit A-2
[ENTERPRISES SUB]
FORM OF BYLAWS
ARTICLE I.
OFFICES.
The registered office of the Corporation shall be in
the City of Wilmington, County of New Castle, State of
Delaware. The Corporation also may have offices at such
other places, both within and without the State of Delaware,
as from time to time may be designated by the Board of
Directors.
ARTICLE II.
MEETINGS OF STOCKHOLDERS.
SECTION 1. Place of Meetings. All meetings of
stockholders, whether annual or special, shall be held at
such places either within or without the State of Delaware,
as shall have been fixed by the Board of Directors and set
forth in the notice of meeting.
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 resolution of the
Board of Directors. With respect to any such annual meeting
of stockholders, the Corporation shall solicit proxies,
relating to all matters proposed by the management of the
Corporation at the time of such solicitation, to be
submitted for action at said annual meeting, from the
holders of all securities of the Corporation entitled to
vote at such annual meeting.
SECTION 3. Special Meetings. Special meetings of the
stockholders may be held at any time upon the call of a
majority of the entire Board of Directors, the Chairman of
the Board, the person, if any, designated by the Board of
Directors as the Chief Executive Officer, a majority of the
entire Executive Committee of the Board of Directors, if
there should be one, or by the holders of not less than a
majority of the outstanding stock entitled to vote at the
special meeting. The notice of each special meeting shall
state the place, date, hour, and purpose or purposes of the
proposed meeting, and the business transacted at such
meeting shall be confined to such purpose or purposes. Such
written notice shall be given not less than ten nor more
than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting. In the event
that a special meeting is called by the holders of not less
than a majority of the outstanding stock entitled to vote at
the special meeting in accordance with the provisions of the
Articles of Incorporation and this Section 3 of Article II,
the Board of Directors shall, within ten days of receipt of
such call (i) fix a record date, which record date shall not
precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record
date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by
the Board of Directors and (ii) set a special meeting date,
which meeting date shall be not less than ten nor more than
sixty days after the record date established pursuant to
clause (i).
SECTION 4. Stockholders' Lists. A complete list of the
stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order, with the
residence of each, and the number of shares held by each,
shall be prepared by the Secretary and filed in the
principal business office of the Corporation, and shall be
open to the examination of any stockholder, during the usual
hours for business at least ten days before any meeting, at
the place where such meeting is to be held, or at another
location within the city where such meeting is to be held
specified in the notice, and shall be available at the time
and place of such meeting and open to the examination of any
stockholder.
SECTION 5. Notice. A written or printed notice, signed
by the Chairman of the Board, the President, a Vice
President, the Secretary or an Assistant Secretary, the
Treasurer or an Assistant Treasurer, of the time, place and
purpose or purposes of every meeting of stockholders shall
be served upon or mailed or caused to be mailed, postage
prepaid, by the Secretary or the officer performing his
duties not less than ten nor more than sixty days before
such meeting to each stockholder of record entitled to vote
at each shareholder's address as it appears upon the stock
book of the Corporation.
SECTION 6. 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, 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 7. Action of Consent. Unless otherwise
restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a
meeting, if all members of the Board consent thereto in
writing, and the writing or writings are filed with the
minutes of proceedings of the Board.
SECTION 8. Telephonic Meetings. Unless otherwise
restricted by the Certificate of Incorporation or these
Bylaws, members of the Board of Directors may participate in
a meeting of the Board by means of conference telephone or
similar communications equipment by means of which all
persons participating in such meeting can hear each other,
and participation in a meeting pursuant to this Section 9 of
Article IV shall constitute presence in person at such
meeting.
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 successor is duly elected and
qualified or until the earlier death, resignation or removal
of such Director.
SECTION 3. Resignations. Any Director may resign at any
time by giving notice of such resignation to the Board of
Directors, the Chairman of the Board, the Vice Chairman, the
President, a Vice President, the Secretary or an Assistant
Secretary of the Corporation. Unless otherwise specified
therein, such resignation shall take effect upon receipt
thereof by the Board of Directors or any such officer.
SECTION 4. Meetings Notice. Meetings of the Board of
Directors shall be held at such place, within or without the
State of Delaware, 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. Meetings may be held at any time upon the call of
the Chief Executive Officer of the Corporation or any two of
the Directors by oral, telegraphic or written notice, duly
given, or sent or mailed to each Director not less than
twenty-four hours before such meeting. Regular meetings of
the Board may be held without notice at such time and place
as shall from time to time be determined by resolution of
the Board.
ARTICLE IV.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES.
SECTION 1. Executive Committee. The Board of
Directors may appoint an Executive Committee of not less
than two or more than five members, to serve at the pleasure
of the Board.
SECTION 2. Procedure. The Executive Committee
shall meet at the call of the Chairman of the Executive
Committee or of any two members. A majority of the members
shall be necessary to constitute a quorum and action shall
be taken by a majority vote of those present.
SECTION 3. Powers and Reports. During the
intervals between the meetings of the Board of Directors,
the Executive Committee shall possess and may exercise all
the powers of the Board in the management and direction of
the business and affairs of the Corporation. The taking of
action by the Executive Committee shall be conclusive
evidence that the Board 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 at its meeting next
following the meeting of the Executive Committee and shall
be subject to revision or alteration by the Board; 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, may appoint other committees
for any purpose or purposes, and such committees shall have
powers as shall be conferred by the resolution of
appointment.
ARTICLE V.
OFFICERS.
SECTION 1. Number, Election and Term of Office. The
Board of Directors may elect a Chairman of the Board and
shall elect a President, a Secretary, a Treasurer, and in
their discretion, one or more Vice Presidents. Whenever the
Board of Directors shall elect both a Chairman of the Board
and a President, the Board of Directors shall, by
resolution, designate one of them as the chief executive
officer of the Corporation who, subject to the direction of
the Board of Directors, shall have direct charge of and
general supervision over the business and affairs of the
Corporation. The officers of the Corporation shall be
elected annually by the Board of Directors and each shall
hold his office until his successor shall have been duly
elected and qualified or until he shall have died or
resigned or shall have been removed by majority vote of the
entire Board of Directors. Any number of offices may be
held by the same person. The Board of Directors may from
time to time appoint such other officers and agents as the
interest of the Corporation may require and may fix their
duties and terms of office.
SECTION 2. Chairman of the Board. If a Chairman of the
Board is elected by the Board of Directors, he shall be a
member of the Board of Directors, shall preside at all
meetings of the Board of Directors, and shall have such
other duties as from time to time may be assigned to him by
the Board of Directors, by the Executive Committee or, if
the Chairman of the Board is not the designated Chief
Executive Officer of the Corporation, by such Chief
Executive Officer.
SECTION 3. President. The President shall perform
duties incident to the office of a president of a
corporation and such other duties as from time to time may
be assigned to him by the Board of Directors, by the
Executive Committee or, if any such President is not
designated the Chief Executive Officer of the Corporation,
by the Chief Executive Officer.
SECTION 4. 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 by the
Board of Directors or the Executive Committee, or as may be
delegated to him by the Chief Executive Officer.
SECTION 5. Secretary. The Secretary shall keep the
minutes of all meetings of the stockholders and of the Board
of Directors in books provided for the purpose; shall see
that all notices are duly given in accordance with the
provisions of the law and these Bylaws; shall be custodian
of the records and of the corporate seal of the Corporation;
shall see that the corporate seal is affixed to all
documents the execution of which under the seal is duly
authorized, and when the seal is so affixed may attest the
same; may sign, with the Chairman of the Board, the Vice
Chairman of the Board, the President or a Vice President,
certificates of stock of the Corporation; and in general,
shall perform all duties incident to the office of a
secretary of a corporation, and such other duties as from
time to time may be assigned by the Chief Executive
Officer, the Chairman of the Board, the Vice Chairman of the
Board, 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 name, alphabetically arranged, of
all persons who are stockholders of the Corporation, showing
their places of residence, the number of shares held by them
respectively, and the time when they respectively became the
owners thereof.
SECTION 6. Treasurer. The Treasurer shall have charge
of and be responsible for all funds, securities, receipts
and disbursements of the Corporation, and shall deposit, or
cause to be deposited, in the name of the Corporation, all
moneys or other valuable effects in such banks, trust
companies or other depositories as shall, from time to time,
be selected by the Board of Directors; 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 under the direction of the Board; 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; may
sign, with the Chairman of the Board, the Vice Chairman of
the Board, the President or a Vice President, certificates
of stock of the Corporation; and in general, shall perform
all the duties incident to the office of a treasurer of a
corporation, and such other duties as from time to time may
be assigned by the Chief Executive Officer, the Chairman of
the Board, the Vice Chairman of the Board, the President,
the Board of Directors or the Executive Committee.
SECTION 7. Subordinate Officers. The Board of Directors
may appoint such assistant secretaries, assistant treasurers
and other subordinate officers as it may deem desirable.
Each such officer shall hold office for such period, have
such authority and perform such duties as the Board of
Directors may prescribe. The Board of Directors may, from
time to time, authorize any officer to appoint and remove
subordinate officers and to prescribe the powers and duties
thereof.
SECTION 8. Vacancies. Absences. Any vacancy in any of
the above offices may be filled for the unexpired portion of
the term 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 one absent for the
time being, and such designated officer or employee shall
have, when so acting, all the powers herein given to such
absent officer.
SECTION 9. 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 of the Board, 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. The certificates for
shares of the stock of the Corporation shall be in such
form, not inconsistent with the Certificate of
Incorporation, as shall be prepared or approved by the Board
of Directors. Every holder of stock in the Corporation
shall be entitled to have a certificate signed by, or in the
name of the Corporation, by the Chairman of the Board (if
chief executive officer), the President or a Vice President,
and by the Treasurer or the Secretary certifying the number
of shares owned by him and the date of issue; and no
certificate shall be valid unless so signed. All
certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued.
All signatures on the certificate may be facsimile. In
case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he
were such officer, transfer agent or registrar at the date
of issue.
SECTION 2. Transfer of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by
proper evidence of succession assignment or authority to
transfer, the Corporation shall issue a new certificate to
the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
SECTION 3. Registered Stockholders. The
Corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize
any equitable or other claim to, or interest in, such share
or shares on the part of any other person, whether or not it
shall have express or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
SECTION 4. Lost Certificates. Any person claiming a
certificate of stock to be lost or destroyed shall make an
affidavit or affirmation of the fact and advertise the same
in such manner as the Board of Directors may require, and
the Board of Directors, in its discretion, may require the
owner of the lost or destroyed certificate, or his legal
representative, to give the Corporation a bond in a sum
sufficient, in the opinion of the Board of Directors, to
indemnify the Corporation against any claim that may be made
against it on account of the alleged loss of any such
certificate. A new certificate of the same tenor and for
the same number of shares as the one alleged to be lost or
destroyed may be issued without requiring any bond when, in
the judgment of the Directors, it is proper so to do.
SECTION 5. Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in
writing without a meeting, or to receive payment of any
dividend or other distribution or allotment of any rights,
or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty
(60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other
action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for
the adjourned meeting.
ARTICLE 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 the Chairman of the Board, the Vice
Chairman of the Board, the President or any Vice President
and by the Treasurer or any Assistant Treasurer, or shall be
signed by such other officer or officers, person or persons,
as shall be thereunto authorized by the Board of Directors
or the Executive Committee.
SECTION 2. Execution of Contracts, Assignments. etc.
All contracts, agreements, endorsements, assignments,
transfers, stock powers, and other instruments shall be
signed by the Chief Executive Officer, the Chairman of the
Board, the Vice Chairman of the Board, the President or any
Vice President or shall be signed by such officer or
officers, person or persons, as shall be thereunto
authorized by the Board of Directors or the Executive
Committee or by the Chief Executive Officer, Chairman of the
Board or the President.
SECTION 3. Voting of Stock and Execution of Proxies.
The Chairman of the Board, the Vice Chairman of the Board,
the President or a Vice President or any other officer of
the Corporation designated by the Board of Directors, the
Executive Committee, 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 of the Board or 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.
WAIVERS.
Whenever under the provisions of these Bylaws or of any
law the stockholders or Directors are authorized to hold any
meeting or take any action after notice or after the lapse
of any prescribed period of time, such meeting or action may
be held or taken without notice and without such lapse of
time, on written waiver of such notice and lapse of time
signed by every person entitled to such notice or by his
attorney or attorneys thereunto authorized, either before or
after the meeting or action to which such notice relates.
ARTICLE IX.
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 X.
INDEMNIFICATION.
SECTION 1. Power to Indemnify in Actions, Suits or
Proceedings other Than Those by or in the Right of the
Corporation. Subject to Section 3 of this Article X the
Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to or witness or other
participant in, any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of
the Corporation by reason of the fact that he is or was a
director or officer of the Corporation), or is or was a
director or officer of the Corporation serving at the
request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act
in good faith and in a manner which he reasonably believed
to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
SECTION 2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject
to Section 3 of this Article X, 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 or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that
he is or was a director or officer of the Corporation, or is
or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; 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 to the Corporation unless and
only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other
court shall deem proper.
SECTION 3. Authorization of Indemnification. Any
indemnification under this Article X (unless ordered by a
court) shall be made by the Corporation only as authorized
in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article
X, as the case may be. Such determination shall be made (i)
by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action,
suit or proceeding, or (ii) if such a quorum is not
obtainable or, even if obtainable, by majority vote of a
committee duly designated by the Board of Directors (in
which directors who are parties may participate) consisting
solely of two or more directors not at the time parties to
such action, suit or proceeding, or (iii) if such a quorum
is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or (iv) by the stockholders.
To the extent, however, that a director or officer of the
Corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization
in the specific case.
Any indemnification under this Article X shall be made
promptly and, in any event, to the extent practicable,
within sixty days of receipt by the Corporation of the
written request of the person to be indemnified.
SECTION 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article X, a person
shall be deemed to have acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable
cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by
the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information
or records given or reports made to the Corporation or
another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with
reasonable care by the Corporation or another enterprise.
The term ''another enterprise'' as used in this Section 4
shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The
provisions of this Section 4 shall not be deemed to be
exclusive or to limit in any way the circumstances in which
a person may be deemed to have met the applicable standard
of conduct set forth in Sections 1 or 2 of this Article X,
as the case may be.
SECTION 5. Indemnification by a Court. Notwithstanding
any contrary determination in the specific case under
Section 3 of this Article and notwithstanding the absence of
any determination thereunder, any director or officer may
apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article X. The
basis of such indemnification by a court shall be a
determination by such court that indemnification of the
director or officer is proper in the circumstances because
he has met the applicable standards of conduct set forth in
Sections 1 or 2 of this Article X, as the case may be.
Neither a contrary determination in the specify case under
Section 3 of this Article X nor the absence of any
determination thereunder shall be a defense to such
application or create a presumption that the director or
officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 shall be given to
the Corporation promptly upon the filing of such
application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such
application.
SECTION 6. Expenses Payable in Advance. Expenses
incurred by a director or officer in defending or
investigating a threatened or pending action, suit or
proceeding shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding
within fourteen days after receipt by the Corporation of a
written statement from such director or officer requesting
such an advancement, together with an undertaking, if
required by law at the time of such advance, by or on behalf
of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article
X.
SECTION 7. Nonexclusivity of Indemnification and
Advancement of Expenses. The indemnification and advancement
of expenses provided by or granted pursuant to this Article
X shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may
be entitled under any By-law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action taken (or
omitted to be taken) in his official capacity and as to
action taken (or omitted to be taken) in another capacity
while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in
Sections 1 and 2 of this Article X shall be made to the
fullest extent permitted by law. The provisions of this
Article X shall not be deemed to preclude the
indemnification of any person who is not specified in
Sections 1 or 2 of this Article X but whom the Corporation
has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of
Delaware, or otherwise.
SECTION 8. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any
expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such
expense, liability or loss under the General Corporation Law
of the State of Delaware or the provisions of this Article
X. The Corporation may also obtain a letter of credit, act
as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into
indemnification agreements, pledge or grant a security
interest in any assets or properties of the Corporation, or
use any other mechanism or arrangement whatsoever in such
amounts, at such costs, and upon such other terms and
conditions as the Board of Directors shall deem appropriate
for the protection of any or all such persons.
SECTION 9. Certain Definitions. For purposes of this
Article X, references to ''the Corporation" shall include,
in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority
to indemnify its directors and officers, so that any person
who is or was a director or officer of such constituent
corporation, or is or was a director or officer of such
constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this
Article X with respect to the resulting or surviving
corporation as he would have with respect to such
constituent corporation if its separate existence had
continued. For purposes of this Article X, references to
"fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to
"serving at the request of the Corporation'' shall include
any service as a director or officer of the Corporation
which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit
plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed
to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the
Corporation" as referred to in this Article X.
SECTION 10. Survival of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article X shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article to the
contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5
hereof), the Corporation shall not be obligated to indemnify
any director or officer in connection with a proceeding (or
part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
SECTION 12. Indemnification of Employees and Agents.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those
conferred in this Article X to directors and officers of the
Corporation.
SECTION 13. Repeal or Modification. All rights to
indemnification and to advancement of expenses under this
Article X shall be deemed to be a contract between the
Corporation and each director and officer who serves or has
served in any such capacity, and each other person as to
whom the Corporation has agreed to grant indemnity at any
time while this Article is in effect. Any repeal or
modification of this Article or any repeal or modification
of relevant provisions of the General Corporation Law of the
State of Delaware or any other applicable law shall not in
any way diminish any right to indemnification or to
advancement of expenses of such director, officer or other
person as to whom the Corporation has agreed to grant
indemnity, or the obligations of the Corporation arising
hereunder for claims relating to matters occurring prior to
such repeal or modification.
SECTION 14. Separability. If this Article X or any
portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director and officer, and each
employee, agent and other person as to whom the Corporation
has agreed to grant indemnity to the full extent permitted
by any applicable portion of this Article X that shall not
have been invalidated and to the full extent permitted by
applicable law.
ARTICLE XI.
AMENDMENTS.
SECTION 1. Amendments. Subject to the provisions of
applicable law and of the Certificate of Incorporation,
these Bylaws may be altered, amended or repealed and new
Bylaws adopted either (1) at any annual or special meeting
of the stockholders at which a quorum is present or
represented, provided notice of the proposed amendment shall
have been contained in the notice of meeting, or (2) by the
Board of Directors at any regular or special meeting at
which a quorum is present, provided notice of the proposed
amendment shall have been given.
Exhibit A-3
RESTATED ARTICLES OF INCORPORATION
OF
ENTERGY ENTERPRISES, INC.
AS IN EFFECT DECEMBER 28, 1992
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
ENTERGY ENTERPRISES, INC.
The name of the Corporation is Entergy Enterprises,
Inc.; and further
These Restated Articles of Incorporation of Entergy
Enterprises, Inc., do accurately copy the Articles of
Incorporation and all amendments thereto in effect at the
date of the restatement without substantive change except as
made by any new amendment or amendments contained in the
restatement and noted therein; and further
Each amendment reflected in this restatement has been
effected in conformity with law; and further
The date of incorporation of the Corporation was
December 30, 1983 and this restatement is dated as of the
10th day of December, 1992.
The amendments contained in the restatement were
approved by unanimous written consent of the holder of all
the common stock of the Corporation, the only voting group
entitled to vote on such amendments. These amendments were
duly filed with the Louisiana Secretary of State on July 29,
1992 and September 21, 1992. <FN1>
ARTICLE I
Name
The name of the Corporation is ENTERGY ENTERPRISES, INC.
<FN2>
- --------------------------
<FN1>The footnotes herein are not part of the Restated
Articles of Incorporation.
<FN2>As adopted, Article I stated the name of the Corporation
as Electec, Inc. On September 16, 1992, the name was changed
to Entergy Enterprises, Inc.
<PAGE>
ARTICLE II
Purpose
The purpose of the Corporation is to engage in any
lawful activity for which corporations may be formed under
the Business Corporation Law.
ARTICLE III
Capital
The Corporation has authority to issue an aggregate of
100,000 shares of capital stock, all of which are designated
common stock having no par value per share.<FN3>
ARTICLE IV
Shareholder Consents
Whenever the affirmative vote of shareholders on any
question is required to authorize or constitute corporate
action, the consent in writing to such action signed only by
shareholders holding that proportion of the total voting
power which is required by law or by these Articles of
Incorporation for action on the particular question,
whichever requirement is higher, shall be sufficient for the
purpose, without necessity for a meeting of shareholders.
ARTICLE V
Amendment of Articles
These Articles of Incorporation may be amended upon
approval of a majority of the voting power present at any
annual or special meeting of shareholders the notice of which
sets forth the proposed amendment or a summary of the changes
to be made thereby.
- -------------------
<FN3>As adopted, Article III authorized 25,000 shares of
capital stock. On July 27, 1992, the number of authorized
shares was increased to 100,000.
<PAGE>
ARTICLE VI
Director's Proxies
Any director absent from a meeting of the Board of
Directors or any committee thereof may be represented by any
other director or shareholder, who may cast the vote of the
absent director according to the written instructions,
general or special, of the absent director.
ARTICLE VII
Duration
The duration of the Corporation shall be in perpetuity.
ENTERGY ENTERPRISES, INC.
By: /s/ Jack L. King
Jack L. King
President and Chief Operating
Officer
By: /s/ Michael G. Thompson
Michael G. Thompson
Senior Vice President, Chief
Legal Officer and Secretary
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 24
<NAME> ENTERGY ENTERPRISES, INC.
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1995
<PERIOD-END> SEP-30-1996 SEP-30-1996
<BOOK-VALUE> PER-BOOK PRO-FORMA
<TOTAL-NET-UTILITY-PLANT> 0 0
<OTHER-PROPERTY-AND-INVEST> 102,387 202,387
<TOTAL-CURRENT-ASSETS> 19,268 19,268
<TOTAL-DEFERRED-CHARGES> 8,226 8,226
<OTHER-ASSETS> 0 0
<TOTAL-ASSETS> 129,881 229,881
<COMMON> 57,400 57,400
<CAPITAL-SURPLUS-PAID-IN> 150,000 150,000
<RETAINED-EARNINGS> (90,561) (90,561)
<TOTAL-COMMON-STOCKHOLDERS-EQ> 116,839 116,839
0 0
0 0
<LONG-TERM-DEBT-NET> 0 0
<SHORT-TERM-NOTES> 0 100,000
<LONG-TERM-NOTES-PAYABLE> 0 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0 0
<LONG-TERM-DEBT-CURRENT-PORT> 0 0
0 0
<CAPITAL-LEASE-OBLIGATIONS> 0 0
<LEASES-CURRENT> 0 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 13,042 13,042
<TOT-CAPITALIZATION-AND-LIAB> 129,881 229,881
<GROSS-OPERATING-REVENUE> (8,784) (8,784)
<INCOME-TAX-EXPENSE> (4,682) (4,682)
<OTHER-OPERATING-EXPENSES> 37,864 37,864
<TOTAL-OPERATING-EXPENSES> 33,182 33,182
<OPERATING-INCOME-LOSS> (41,966) (41,966)
<OTHER-INCOME-NET> 0 0
<INCOME-BEFORE-INTEREST-EXPEN> (41,966) (41,966)
<TOTAL-INTEREST-EXPENSE> 0 0
<NET-INCOME> (41,966) (41,966)
0 0
<EARNINGS-AVAILABLE-FOR-COMM> 0 0
<COMMON-STOCK-DIVIDENDS> 0 0
<TOTAL-INTEREST-ON-BONDS> 0 0
<CASH-FLOW-OPERATIONS> 0 0
<EPS-PRIMARY> 0 0
<EPS-DILUTED> 0 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 24
<NAME> ENTERGY ENTERPRISES AND SUBSIDARIES (CONSOLIDATED)
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1995
<PERIOD-END> SEP-30-1996 SEP-30-1996
<BOOK-VALUE> PER-BOOK PRO-FORMA
<TOTAL-NET-UTILITY-PLANT> 0 0
<OTHER-PROPERTY-AND-INVEST> 82,125 182,125
<TOTAL-CURRENT-ASSETS> 79,660 79,660
<TOTAL-DEFERRED-CHARGES> 30,614 30,614
<OTHER-ASSETS> 0 0
<TOTAL-ASSETS> 192,400 192,400
<COMMON> 57,400 57,400
<CAPITAL-SURPLUS-PAID-IN> 150,000 150,000
<RETAINED-EARNINGS> (90,561) (90,561)
<TOTAL-COMMON-STOCKHOLDERS-EQ> 116,839 116,839
0 0
0 0
<LONG-TERM-DEBT-NET> 6,387 6,387
<SHORT-TERM-NOTES> 0 100,000
<LONG-TERM-NOTES-PAYABLE> 0 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0 0
<LONG-TERM-DEBT-CURRENT-PORT> 0 0
0 0
<CAPITAL-LEASE-OBLIGATIONS> 0 0
<LEASES-CURRENT> 0 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 69,174 69,174
<TOT-CAPITALIZATION-AND-LIAB> 192,400 292,400
<GROSS-OPERATING-REVENUE> 48,293 49,293
<INCOME-TAX-EXPENSE> (23,493) (23,493)
<OTHER-OPERATING-EXPENSES> 108,754 108,754
<TOTAL-OPERATING-EXPENSES> 82,261 82,261
<OPERATING-INCOME-LOSS> (36,968) (36,968)
<OTHER-INCOME-NET> 0 0
<INCOME-BEFORE-INTEREST-EXPEN> (36,968) (36,968)
<TOTAL-INTEREST-EXPENSE> 4,998 4,998
<NET-INCOME> (41,966) (41,966)
0 0
<EARNINGS-AVAILABLE-FOR-COMM> 0 0
<COMMON-STOCK-DIVIDENDS> 0 0
<TOTAL-INTEREST-ON-BONDS> 0 0
<CASH-FLOW-OPERATIONS> 0 0
<EPS-PRIMARY> 0 0
<EPS-DILUTED> 0 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 016
<NAME> ENTERGY CORPORATION
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1995
<PERIOD-END> SEP-30-1996 SEP-30-1996
<BOOK-VALUE> PER-BOOK PRO-FORMA
<TOTAL-NET-UTILITY-PLANT> 0 0
<OTHER-PROPERTY-AND-INVEST> 6,711,895 6,711,895
<TOTAL-CURRENT-ASSETS> 54,875 54,875
<TOTAL-DEFERRED-CHARGES> 77,176 77,176
<OTHER-ASSETS> 0 0
<TOTAL-ASSETS> 6,843,946 6,843,946
<COMMON> 2,315 2,315
<CAPITAL-SURPLUS-PAID-IN> 4,240,038 4,240,038
<RETAINED-EARNINGS> 2,406,339 2,406,339
<TOTAL-COMMON-STOCKHOLDERS-EQ> 6,609,735 6,609,735
0 0
0 0
<LONG-TERM-DEBT-NET> 0 0
<SHORT-TERM-NOTES> 120,000 120,000
<LONG-TERM-NOTES-PAYABLE> 0 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0 0
<LONG-TERM-DEBT-CURRENT-PORT> 0 0
0 0
<CAPITAL-LEASE-OBLIGATIONS> 0 0
<LEASES-CURRENT> 0 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 114,211 114,211
<TOT-CAPITALIZATION-AND-LIAB> 6,843,946 6,843,946
<GROSS-OPERATING-REVENUE> 0 0
<INCOME-TAX-EXPENSE> (13,723) (13,723)
<OTHER-OPERATING-EXPENSES> 66,334 66,334
<TOTAL-OPERATING-EXPENSES> 52,611 52,611
<OPERATING-INCOME-LOSS> (52,611) (52,611)
<OTHER-INCOME-NET> 438,592 438,592
<INCOME-BEFORE-INTEREST-EXPEN> 385,981 385,981
<TOTAL-INTEREST-EXPENSE> 1,082 1,082
<NET-INCOME> 384,899 384,899
0 0
<EARNINGS-AVAILABLE-FOR-COMM> 384,899 384,899
<COMMON-STOCK-DIVIDENDS> 410,394 410,394
<TOTAL-INTEREST-ON-BONDS> 0 0
<CASH-FLOW-OPERATIONS> 0 0
<EPS-PRIMARY> 0 0
<EPS-DILUTED> 0 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 017
<NAME> ENTERGY CORPORATION & SUBSIDARIES (CONSOLIDATED)
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1995
<PERIOD-END> SEP-30-1996 SEP-30-1996
<BOOK-VALUE> PER-BOOK PRO-FORMA
<TOTAL-NET-UTILITY-PLANT> 16,226,927 16,226,927
<OTHER-PROPERTY-AND-INVEST> 777,577 777,577
<TOTAL-CURRENT-ASSETS> 2,645,222 2,645,222
<TOTAL-DEFERRED-CHARGES> 3,494,364 3,494,364
<OTHER-ASSETS> 0 0
<TOTAL-ASSETS> 23,144,090 23,144,090
<COMMON> 2,315 2,315
<CAPITAL-SURPLUS-PAID-IN> 4,240,038 4,240,038
<RETAINED-EARNINGS> 2,406,339 2,406,339
<TOTAL-COMMON-STOCKHOLDERS-EQ> 6,609,735 6,609,735
221,986 221,986
490,955 490,955
<LONG-TERM-DEBT-NET> 7,642,768 7,642,768
<SHORT-TERM-NOTES> 120,692 120,692
<LONG-TERM-NOTES-PAYABLE> 0 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0 0
<LONG-TERM-DEBT-CURRENT-PORT> 355,305 355,305
0 0
<CAPITAL-LEASE-OBLIGATIONS> 275,323 275,323
<LEASES-CURRENT> 151,204 151,204
<OTHER-ITEMS-CAPITAL-AND-LIAB> 7,356,419 7,356,419
<TOT-CAPITALIZATION-AND-LIAB> 23,144,090 23,144,090
<GROSS-OPERATING-REVENUE> 7,019,660 7,019,660
<INCOME-TAX-EXPENSE> 372,423 372,423
<OTHER-OPERATING-EXPENSES> 5,359,378 5,359,378
<TOTAL-OPERATING-EXPENSES> 5,731,801 5,731,801
<OPERATING-INCOME-LOSS> 1,287,859 1,287,859
<OTHER-INCOME-NET> (116,618) (116,618)
<INCOME-BEFORE-INTEREST-EXPEN> 1,171,241 1,171,241
<TOTAL-INTEREST-EXPENSE> 711,983 711,983
<NET-INCOME> 459,258 459,258
74,359 74,359
<EARNINGS-AVAILABLE-FOR-COMM> 384,899 384,899
<COMMON-STOCK-DIVIDENDS> 410,394 410,394
<TOTAL-INTEREST-ON-BONDS> 0 0
<CASH-FLOW-OPERATIONS> 0 0
<EPS-PRIMARY> 0 0
<EPS-DILUTED> 0 0
</TABLE>
Exhibit H
[Proposed Form of Notice]
Entergy Corporation, 639 Loyola Avenue, New Orleans,
Louisiana 70113 ("Entergy"), a registered holding company,
and its wholly-owned, non-utility subsidiary company,
Entergy Enterprises, Inc., Three Financial Centre, 900 S.
Shackleford Road, Suite 210, Little Rock, Arkansas 72211
("Enterprises"), have filed an Application-Declaration under
sections 6(a), 7, 9(a), 10, 12(b), 13(b), 32 and 33 of the
Act and rules 45, 52, 53, 54, 87 90 and 91 thereunder.
By order in this proceeding dated July 8, 1993 (HCAR
No. 25848) (the "1993 Order"), Entergy Enterprises, Inc.
("Enterprises"), a wholly-owned non-utility subsidiary
company of Entergy Corporation ("Entergy"), a registered
holding company under the Public Utility Holding Company Act
of 1935 (the "Act"), was authorized by the Securities and
Exchange Commission (the "Commission") to (1) conduct
preliminary development activities with respect to potential
investments by Entergy in various energy, energy-related and
other non-utility businesses, (2) provide consulting
services ("Consulting Services") to non-associate companies,
utilizing the expertise and resources of the Entergy System
companies, and (3) provide management and administrative
support services ("Administrative Services") to associate
companies engaged in certain energy, energy-related and
other non-utility businesses (exclusive of associate
companies which are "exempt wholesale generators" ("EWGs")
or foreign utility companies ("FUCOs") under Sections 32 and
33, respectively, of the Act). In addition, the 1993 Order
authorized Enterprises to receive certain administrative and
other support services from the System utility operating
companies and Entergy's service company subsidiary, Entergy
Services, Inc., in support of its ongoing business
activities.
Pursuant to a subsequent order of the Commission in
this File, dated June 30, 1995 (HCAR No. 26322) (the "1995
Order"), Enterprises' business authorization was expanded to
include the following additional activities:
1) the provision of Consulting Services to associate
companies, including EWGs, FUCOs and qualifying facilities
("QFs") under the Public Utility Regulated Practices Act of
1978, as amended (excluding the Operating Companies, ESI and
such other existing or new subsidiaries as Entergy may
create, whose activities and operations are primarily
related to the domestic sale of electric energy at retail or
at wholesale to affiliates or the provision of services or
goods thereto (collectively, the "Excepted Companies")).
2) the provision of operations and management services
("O&M Services"), directly or indirectly through newly
established subsidiaries ("O&M Subs") of Entergy or
Enterprises, to developers, owners and operators of domestic
and foreign power projects, including power projects that
Enterprises may develop on its own or in collaboration with
third parties, and to other associate companies, exclusive
of the Excepted Companies. Enterprises is authorized to
render such O&M Services using its own work force and the
personnel and resources of the Excepted Companies obtained
pursuant to service agreements with such companies, as they
may be amended by order of the Commission in File No. 70-
8529. (Subject to receipt of requisite Commission approval
in such File, the Excepted Companies would be reimbursed for
the fully allocated cost of any services, (including
administrative and other services, as well as O&M Services)
provided to Enterprises or any O&M Sub, plus 5%.)
3) the licensing or other marketing to non-affiliates of
intellectual property (including software) and other
products acquired or developed by Entergy System companies
(the 1995 Order and Post-Effective Amendment No. 2 in this
File set forth certain provisions pertaining to the sharing
of costs and profits associated with the marketing by
Enterprises of products developed by the Excepted
Companies).
4) the provision of Administrative Services to all of
Enterprises' associate companies (exclusive of the Excepted
Companies), including associate EWGs and FUCOs.
Enterprises is also authorized under the 1995
Order to provide Consulting Services and O&M
Services to its associate companies (excluding the
Excepted Companies) at fair market prices (and is
granted an exemption pursuant to Section 13(b) of
the Act from the requirements of Rules 90 and 91
thereunder, subject to certain limitations with
respect to the provision of such services to
associate power projects).
The 1995 Order further approves certain financing
transactions involving Entergy and Enterprises (to the
extent such transactions are not otherwise exempt under
the Act). Specifically, Entergy is authorized to
provide additional financing for the activities of
Enterprises (including the issuance of guarantees on
behalf of Enterprises), and Entergy and Enterprises are
authorized to organize and fund O&M Subs and to issue
guarantees on behalf of an O&M Sub or other associate
companies (other than the Excepted Companies) from time
to time through December 31, 1997, provided that the
aggregate amount of such investments and guarantees
does not exceed $350 million at any one time
outstanding. (In support of its application seeking
such authorization, Entergy and Enterprises estimated
that approximately $250 million of the $350 million
aggregate investment limitation would be used in
connection with the issuance of guarantees.)
Enterprises seeks authorization to engage in the
aforementioned previously authorized business activities and
related affiliate and financing transactions, either
directly or indirectly, through one or more new direct or
indirect wholly-owned subsidiaries (collectively,
"Enterprises Subs"). The applicants further seek
authorization to make investments in such Enterprises Subs
from time to time through December 31, 1997 in the form of
common stock purchases, capital contributions, open account
advances, loans, conversions of loans to capital
contributions and guarantees of indebtedness or other
obligations. Except to the extent such transactions are
exempt under the Act, the aggregate amount of such
investments (including guarantees) in or on behalf of such
Enterprises Subs, when added to (i) any investments made by
such Enterprises Subs in O&M Subs or any guarantees issued
by such Enterprises Subs on behalf of O&M Subs or other
associate companies (other than the Excepted Companies), and
(ii) any investments (including guarantees) authorized to be
made or issued by Entergy or Enterprises under the 1995
Order, will not exceed the $350 million investment
limitation set forth in the 1995 Order. Applicants again
estimate that approximately $250 million of the $350 million
aggregate investment authority will be used for guarantees.
Subject to any requisite further commission approval,
no part of the proceeds of any investments made in any
Enterprises Sub will be used to finance investments in any
other business (except as described above), including the
business of an EWG, a FUCO or a QF.
The application-declaration and any amendments thereto
are available for public inspection through the Commission's
Office of Public Reference. Interested persons wishing to
comment or request a hearing should submit their views in
writing by _____________________ to the Secretary,
Securities and Exchange Commission, Washington, D. C. 20549,
and serve a copy on the applicant-declarant at the address
specified above. Proof of service (by affidavit or, in case
of any attorney at law, by certificate) should be filed with
the request. Any request for a hearing shall identify
specifically the issues of fact or law that are disputed. A
person who so requests will be notified of any hearing, if
ordered, and will receive a copy of any notice or order
issued in this matter. After said date, the application-
declaration, as filed or as it may be amended, may be
granted and/or permitted to become effective.
Jonathan G. Katz
Secretary
<TABLE>
<CAPTION>
ENTERGY ENTERPRISES, INC.
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
--------------------------------------------
Before In Present After
ASSETS Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Property:
Furniture & equipment $2,001 $2,001
Intangible assets 31 31
--------- --------- ---------
Total 2,032 2,032
--------- --------- ---------
Investment:
Investment in subsidiary company - at equity - $100,000 100,000
Investments in FPN 1,876 1,876
Investments in EISI 95,448 95,448
Investment in Entergy Operations Services, Inc. 2,952 2,952
Special deposits 79 79
--------- --------- ---------
Total 100,355 100,000 200,355
--------- --------- ---------
Current Assets:
Cash and cash equivalents:
Cash (35) (35)
Temporary cash investments - -
--------- --------- ---------
Total cash and cash equivalents (35) (35)
Accounts receivable (173) (173)
Accounts receivable - associated companies 19,475 19,475
Other current assets 1 1
--------- --------- ---------
Total 19,268 19,268
--------- --------- ---------
Deferred Debits:
Accumulated deferred income taxes - net 9,226 9,226
Miscellaneous (1,000) (1,000)
--------- --------- ---------
Total 8,226 8,226
--------- --------- ---------
TOTAL $129,881 $100,000 $229,881
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY ENTERPRISES, INC.
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
-----------------------------------------------
Before In Present After
CAPITALIZATION AND LIABILITIES Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Capitalization:
Common Stock $57,400 $57,400
Miscellaneous Paid In Capital 150,000 150,000
Retained Earnings (90,561) (90,561)
Retained Earnings - Unreal. Holding Losses - -
--------- --------- ---------
Total 116,839 116,839
--------- --------- ---------
Long-Term Liabilities:
Other Long-term Debt - -
Other - -
--------- --------- ---------
Total - -
--------- --------- ---------
Current Liabilities:
Notes Payable - associated companies - $100,000 100,000
Accounts Payable 852 852
Accounts payable - associated companies 393 393
Taxes accrued 3,181 3,181
Other 3,081 3,081
--------- --------- ---------
Total 7,507 100,000 107,507
--------- --------- ---------
Other deferred credits: 5,535 5,535
--------- --------- ---------
TOTAL $129,881 $100,000 $229,881
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY ENTERPRISES, INC.
PRO FORMA STATEMENT OF INCOME
TWELVE MONTHS ENDED SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------
Before In Present After
Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Revenues:
Services rendered - non-associated companies $110 $110
Services rendered - associated companies 25,524 25,524
Equity in earnings of subsidiaries (34,597) (34,597)
Interest Income 152 152
Miscellaneous income 27 27
--------- --------- ---------
Total (8,784) ($8,784)
--------- --------- ---------
Expenses:
Salaries, wages and benefits 14,690 14,690
Outside services 10,126 10,126
Administrative and general 9,083 9,083
Active development reserve (6,583) (6,583)
Other 54 54
--------- --------- ---------
Total 27,370 27,370
Depreciation and amortization 1,117 1,117
Amortization of organizational cost 25 25
Miscellaneous expenses 9,352 9,352
--------- --------- ---------
Total expenses 37,864 37,864
--------- --------- ---------
Income (Loss) Before Income Taxes (46,648) (46,648)
--------- --------- ---------
Income Taxes - Federal 735 735
Income Taxes - State 146 146
Provision for Deferred Income Taxes - Federal (4,642) (4,642)
Provision for Deferred Income Taxes - State (921) (921)
--------- --------- ---------
Net Loss ($41,966) $ - ($41,966)
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY ENTERPRISES, INC.
PRO FORMA STATEMENT OF RETAINED EARNINGS
TWELVE MONTHS ENDED SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
----------------------------------------------------
Before In Present After
RETAINED EARNINGS Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Balance at September 30, 1995 ($48,595) ($48,595)
Add - Net loss (41,966) (41,966)
--------- --------- ---------
Balance at September 30, 1996 ($90,561) $ - ($90,561)
========= ========= =========
</TABLE>
Entergy Enterprises, Inc.
Journal Entries
(In Thousands)
Entry 1
Cash $100,000
Notes Payable - Associated Company $100,000
To record loan to Entergy Enterprises, Inc. for investment
in the telecommunications, energy management services or environmental
technology businesses.
Entry 2
Investment in Subsidiary $100,000
Cash $100,000
To invest in one or more new subsidiaries which would either directly or
indirectly acquire interests, or options to acquire interests, in any
businesses, including among others, the telecommunications,
energy management services or environmental technology businesses.
<TABLE>
<CAPTION>
ENTERGY ENTERPRISES, INC. AND CONSOLIDATED
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
---------------------------------------------------
Before In Present After
ASSETS Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Property:
Furniture & equipment $13,134 $13,134
Intangible assets 434 434
Installed equipment 52,102 52,102
Work in process 6,225 6,225
--------- --------- ---------
Total 71,895 71,895
--------- --------- ---------
Investment:
Investments in FPN 1,876 1,876
Note receivable - EISI 2,430 2,430
Investment in subsidiary company - at equity - $100,000 100,000
Other Investments 5,846 5,846
Special deposits 79 79
--------- --------- ---------
Total 10,231 100,000 110,231
--------- --------- ---------
Current Assets:
Cash and cash equivalents:
Cash 1,151 1,151
Temporary cash investments 31,484 31,484
--------- --------- ---------
Total cash and cash equivalents 32,635 32,635
Accounts receivable 1,759 1,759
Accounts receivable - associated companies 19,475 19,475
Inventory 25,569 25,569
Other current assets 222 222
--------- --------- ---------
Total 79,660 79,660
--------- --------- ---------
Deferred Debits:
EISI Technology 8,627 8,627
Accum. Deferred Income Tax - Federal & State 13,618 13,618
Other deferred debits 8,369 8,369
--------- --------- ---------
Total Deferred Debits 30,614 30,614
--------- --------- ---------
TOTAL $192,400 $100,000 $292,400
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY ENTERPRISES, INC. AND CONSOLIDATED
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
----------------------------------------------------
Before In Present After
CAPITALIZATION AND LIABILITIES Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Capitalization:
Common Stock $57,400 $57,400
Miscellaneous Paid In Capital 150,000 150,000
Retained Earnings (90,561) (90,561)
--------- --------- ---------
Total 116,839 116,839
--------- --------- ---------
Long-Term Liabilities:
Other Long-term Debt 6,387 6,387
Other 103 103
--------- --------- ---------
Total 6,490 6,490
--------- --------- ---------
Current Liabilities:
Accounts Payable 1,219 1,219
Accounts payable - associated companies 490 490
Notes payable - associated companies 100,000 100,000
Taxes accrued 3,150 3,150
Other 8,768 8,768
--------- --------- ---------
Total 13,627 100,000 113,627
Deferred Credits
Deferred Revenue 49,909 49,909
Other Deferred Credits 5,535 5,535
--------- --------- ---------
Total 55,444 55,444
--------- --------- ---------
TOTAL $192,400 $100,000 $292,400
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY ENTERPRISES, INC. AND CONSOLIDATED
PRO FORMA STATEMENT OF INCOME
TWELVE MONTHS ENDED SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
----------------------------------------------------
Before In Present After
Transaction Filing Transaction
--------- --------- ---------
Revenues:
Services rendered - associated companies $25,524 25,524
Net sales 20,759 20,759
Miscellaneous income 2,010 2,010
--------- --------- ---------
Total 48,293 48,293
--------- --------- ---------
Expenses:
Installation/Maintenance Costs 5,313
Salaries, wages and benefits 20,918 20,918
Outside services 12,201 12,201
Administrative and General 38,005 38,005
Other 789 789
--------- --------- ---------
Total 77,226 71,913
--------- --------- ---------
Depreciation and Amortization 12,846 12,846
Amortization of organizational cost 25 25
Miscellaneous Expenses 18,657 18,657
--------- --------- ---------
Total expenses 108,754 108,754
--------- --------- ---------
Interest Expense 4,998 4,998
--------- --------- ---------
Loss Before Income Taxes (65,459) (65,459)
--------- --------- ---------
Income Taxes - Federal (14,875) (14,875)
Income Taxes - State 141 141
Provision for Deferred Income Taxes - Federal (7,838) (7,838)
Provision for Deferred Income Taxes - State (921) (921)
--------- --------- ---------
Net Loss ($41,966) $ - ($41,966)
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY ENTERPRISES, INC. AND CONSOLIDATED
PRO FORMA STATEMENT OF RETAINED EARNINGS
TWELVE MONTHS ENDED SPETEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
-----------------------------------------------------
Before In Present After
RETAINED EARNINGS Transaction Filing Transaction
--------- --------- --------------
(In Thousands)
Balance at September 30, 1995 ($48,595) ($48,595)
Add - Net loss ($41,966) (41,966)
--------- --------- ---------
Balance at September 30, 1996 ($90,561) $ - ($90,561)
========= ========= =========
</TABLE>
Entergy Enterprises, Inc. and Subdsidiaries
Journal Entries
(In Thousands)
Entry 1
Investment in Subsidiary $100,000
Notes payable - associated companies $100,000
To invest in one or more new subsidiaries which would either directly or
indirectly acquire interests, or options to acquire interests, in any
businesses, including among others, the telecommunications,
energy management services or environmental technology businesses.
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
----------------------------------------------------------
Before In Present After
ASSETS Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Investment in wholly owned subsidiaries $ 6,711,895 $ 6,711,895
--------- --------- ---------
Current Assets:
Cash and cash equivalents:
Cash 23 23
Temporary cash investments - at cost,
which approximates market 24,783 24,783
--------- --------- ---------
Total cash and cash equivalents 24,806 24,806
Notes receivable - associated companies 8,952 8,952
Accounts receivable - associated companies 1,263 1,263
Interest receivable 516 516
Other 19,338 19,338
--------- --------- ---------
Total 54,875 54,875
--------- --------- ---------
Deferred Debits and Other Assets: 77,176 77,176
--------- --------- ---------
TOTAL $ 6,843,946 $ - $ 6,843,946
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
Before In Present After
CAPITALIZATION AND LIABILITIES Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Capitalization:
Common stock, $.01 par value, authorized
500,000,000 shares; issued 231,455,342
shares $ 2,315 $ 2,315
Paid-in capital 4,240,038 4,240,038
Retained earnings 2,406,339 2,406,339
Cumulative foreign currency translation 20,670 20,670
Less - treasury stock (1,973,468 shares) 59,627 59,627
--------- --------- ---------
Total common shareholders' equity 6,609,735 6,609,735
--------- --------- ---------
Current Liabilities:
Notes payable 120,000 120,000
Accounts payable:
Associated companies 1,473 1,473
Other 777 777
Other 12,991 12,991
--------- --------- ---------
Total 135,241 135,241
Deferred Credit and Noncurrent Liabilities 98,970 98,970
--------- --------- ---------
Total 98,970 98,970
--------- --------- ---------
TOTAL $ 6,843,946 $ $ 6,843,946
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION
PRO FORMA STATEMENT OF INCOME
TWELVE MONTHS ENDED SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
Before In Present After
Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Revenues:
Equity in income of subsidiaries $ 432,914 $ 432,914
Interest on temporary investments 5,678 5,678
--------- --------- ---------
Total 438,592 438,592
--------- --------- ---------
Expenses
Administrative and general expenses 56,860 56,860
Income taxes (13,723) (13,723)
Interest 9,474 9,474
Taxes other than income 1,082 1,082
--------- --------- ---------
Total 53,693 53,693
--------- --------- ---------
Net Income $ 384,899 $ - $ 384,899
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION
PRO FORMA STATEMENT OF RETAINED EARNINGS
TWELVE MONTHS ENDED SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
Before In Present After
Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
RETAINED EARNINGS
Retained Earnings - Beginning of period $ 2,431,020 $2,431,020
Add
Net Income 384,899 384,899
--------- --------- ---------
Total 2,815,919 2,815,919
--------- --------- ---------
Deduct:
Dividends declared on common stock 410,394 410,394
Capital stock and other expenses (814) (814)
--------- --------- ---------
Total 409,580 409,580
--------- --------- ---------
Retained Earnings - End of period $ 2,406,339 $ $ 2,406,339
========= ========= =========
PAID-IN CAPITAL
Paid-in Capital - Beginning of period $ 4,201,435 $ 4,201,435
Add:
Gain/(Loss) on the reacquisition of
preferred stock and others 2,291 2,291
Issuance of stock related to ESIP (3,002) (3,002)
Common stock issuance 36,857 36,857
--------- --------- ---------
Total 36,146 36,146
--------- --------- ---------
Deduct:
Capital stock discounts and other expenses - net (2,457) (2,457)
--------- --------- ---------
Total (2,457) (2,457)
--------- --------- ---------
Paid-in Capital - End of period $ 4,240,038 $ $4,240,038
========= ========= =========
</TABLE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
------------------------------------------------------
Before In Present After
ASSETS Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Utility Plant:
Electric $ 22,588,066 $ 22,588,066
Plant acquisition adjustment - Entergy Gulf States, Inc. 459,492 459,492
Electric plant under leases 678,658 678,658
Property under capital leases - electric 149,863 149,863
Natural gas 168,136 168,136
Steam products 79,701 79,701
Construction work in progress 464,888 464,888
Nuclear fuel under capital leases 276,308 276,308
Nuclear fuel 61,212 61,212
--------- --------- ---------
Total 24,926,324 24,926,324
Less - accumulated depreciation
and amortization 8,699,397 8,699,397
--------- --------- ---------
Utility plant - net 16,226,927 16,226,927
--------- --------- ---------
Other Property and Investments:
Decommissioning trust funds 318,088 318,088
Other 459,489 459,489
--------- --------- ---------
Total 777,577 777,577
--------- --------- ---------
Current Assets:
Cash and cash equivalents:
Cash 99,309 99,309
Temporary cash investments - at cost,
which approximates market 447,294 447,294
Special deposits 60,824 60,824
--------- --------- ---------
Total cash and cash equivalents 607,427 607,427
Notes receivable 1,332 1,332
Accounts receivable:
Customer (less allowance for
doubtful accounts of $8.4 million) 458,357 458,357
Other 73,380 73,380
Accrued unbilled revenues 373,114 373,114
Deferred fuel 92,543 92,543
Fuel inventory - at average cost 122,610 122,610
Materials and supplies - at average cost 345,833 345,833
Rate deferrals 440,816 440,816
Prepayments and other 129,810 129,810
--------- --------- ---------
Total 2,645,222 2,645,222
--------- --------- ---------
Deferred Debits and Other Assets:
Regulatory Assets:
Rate deferrals 507,824 507,824
SFAS 109 regulatory asset - net 1,206,786 1,206,786
Unamortized loss on reacquired debt 222,264 222,264
Other regulatory assets 378,088 378,088
Long-term receivables 218,246 218,246
Citipower license (net of $11.5 million of amortization) 609,027 609,027
Other 352,129 352,129
--------- --------- ---------
Total 3,494,364 3,494,364
--------- --------- ---------
TOTAL $ 23,144,090 $ - $23,144,090
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
--------------------------------------------
Before In Present After
CAPITALIZATION AND LIABILITIES Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Capitalization:
Common stock, $.01 par value, authorized
500,000,000 shares; issued 231,455,342
shares $ 2,315 $ 2,315
Paid-in capital 4,240,038 4,240,038
Retained earnings 2,406,339 2,406,339
Cumulative foreign currency translation adjustment 20,670 20,670
Less - treasury stock (1,973,468 shares) 59,627 59,627
--------- --------- ---------
Total common shareholders' equity 6,609,735 6,609,735
Subsidiary's preference stock 150,000 150,000
Subsidiaries' preferred stock:
Without sinking fund 490,955 490,955
With sinking fund 221,986 221,986
Company-obligated manditorily redeemable
preferred securities of subsidiary trust holding
soley junior subordinated deferrable debentures 130,000 130,000
Long-term debt 7,642,768 7,642,768
--------- --------- ---------
Total 15,245,444 15,245,444
--------- --------- ---------
Other Noncurrent Liabilities:
Obligations under capital leases 275,323 275,323
Other 372,787 372,787
--------- --------- ---------
Total 648,110 648,110
--------- --------- ---------
Current Liabilities:
Currently maturing long-term debt 355,305 355,305
Notes payable 120,692 120,692
Accounts payable 429,018 429,018
Customer deposits 152,551 152,551
Taxes accrued 433,975 433,975
Accumulated deferred income taxes 85,186 85,186
Interest accrued 181,394 181,394
Dividends declared 10,475 10,475
Obligations under capital leases 151,204 151,204
Other 132,127 132,127
--------- --------- ---------
Total 2,051,927 2,051,927
--------- --------- ---------
Deferred Credits:
Accumulated deferred income taxes 3,649,399 3,649,399
Accumulated deferred investment tax credits 594,969 594,969
Other 954,241 954,241
--------- --------- ---------
Total 5,198,609 5,198,609
--------- --------- ---------
TOTAL $23,144,090 $ - $23,144,090
========== ========= ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF INCOME
TWELVE MONTHS ENDED SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
----------------------------------------------------
Before In Present After
Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
Operating Revenues:
Electric $ 6,431,323 $ 6,431,323
Natural gas 135,997 135,997
Steam Products 59,713 59,713
Nonregulated and foreign energy-related businesses 392,627 392,627
--------- --------- ---------
Total 7,019,660 7,019,660
--------- --------- ---------
Operating Expenses:
Operation and maintenance:
Fuel and fuel-related expenses
and gas purchased for resale 1,642,273 1,642,273
Purchased power 605,828 605,828
Nuclear refueling outage expenses 52,344 52,344
Other operation and maintenance 1,566,178 1,566,178
Depreciation, amortization, and decommissioning 763,575 763,575
Taxes other than income taxes 342,870 342,870
Income taxes 372,423 372,423
Rate deferrals (34,842) (34,842)
Amortization of rate deferrals 421,152 421,152
--------- --------- ---------
Total 5,731,801 5,731,801
--------- --------- ---------
Operating Income 1,287,859 1,287,859
--------- --------- ---------
Other Income (Deductions):
Allowance for equity funds used
during construction 10,329 10,329
Write-off of River Bend rate deferrals (194,498) (194,498)
Miscellaneous - net 74,484 74,484
Income taxes (6,933) (6,933)
--------- --------- ---------
Total (116,618) (116,618)
--------- --------- ---------
Interest Charges:
Interest on long-term debt 666,760 666,760
Other interest - net 51,961 51,961
Dividends on preferred securities 1,947 1,947
Allowance for borrowed funds used
during construction (8,685) (8,685)
Preferred dividend requirements 74,359 74,359
--------- --------- ---------
Total 786,342 786,342
--------- --------- ---------
Net Income $ 384,899 $ - $ 384,899
========= ========= =========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF RETAINED EARNINGS
TWELVE MONTHS ENDED SEPTEMBER 30, 1996
(Unaudited)
<S> <C> <C> <C>
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
Transaction Filing Transaction
--------- --------- ---------
(In Thousands)
RETAINED EARNINGS
Retained Earnings - Beginning of period $ 2,431,020 $ 2,431,020
Add
Net Income 384,899 384,899
--------- --------- ---------
Total 2,815,919 2,815,919
--------- --------- ---------
Deduct:
Dividends declared on common stock 410,394 410,394
Capital stock and other expenses (814) (814)
--------- --------- ---------
Total 409,580 409,580
--------- --------- ---------
Retained Earnings - End of period $ 2,406,339 $ - $ 2,406,339
========= ========= =========
PAID-IN CAPITAL
Paid-in Capital - Beginning of period $ 4,201,435 $ 4,201,435
Add:
Gain/(Loss) on the reacquisition of
preferred stock and others 2,291 2,291
Issuance of stock related to ESIP (3,002) (3,002)
Common stock issuance 36,857 36,857
--------- --------- ---------
Total 36,146 36,146
--------- --------- ---------
Deduct:
Capital stock discounts and other expenses - net (2,457) (2,457)
--------- --------- ---------
Total (2,457) (2,457)
--------- --------- ---------
Paid-in Capital - End of period $ 4,240,038 $ - $ 4,240,038
========= ========= =========
</TABLE>
<PAGE>
