21508 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

these meetings may be obtained by

contacting the Committee’s Secretary,

Office of Personnel Management,

Federal Prevailing Rate Advisory

Committee, Room 5559, 1900 E Street,

NW., Washington, DC 20415 (202) 606–

1500.

Dated: May 3, 1996.

Phyllis G. Foley,

Chair, Federal Prevailing Rate Advisory

Committee.

[FR Doc. 96–11749 Filed 5–9–96; 8:45 am]

BILLING CODE 6325–01–M

SECURITIES AND EXCHANGE

COMMISSION

[Release No. 35–26514]

Filings Under the Public Utility Holding

Company Act of 1935, as Amended

(‘‘Act’’)

May 3, 1996.

Notice is hereby given that the

following filing(s) has/have been made

with the Commission pursuant to

provisions of the Act and rules

promulgated thereunder. All interested

persons are referred to the application(s)

and/or declaration(s) for complete

statements of the proposed

transaction(s) summarized below. The

application(s) and/or declaration(s) and

any amendments thereto is/are available

for public inspection through the

Commission’s Office of Public

Reference.

Interested persons wishing to

comment or request a hearing on the

application(s) and/or declaration(s)

should submit their views in writing by

May 28, 1996, to the Secretary,

Securities and Exchange Commission,

Washington, D.C. 20549, and serve a

copy on the relevant applicant(s) and/or

declarant(s) at the address(es) specified

below. Proof of service (by affidavit or,

in case of an attorney at law, by

certificate) should be filed with the

request. Any request for 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 the matter.

After said date, the application(s) and/

or declaration(s), as filed or as amended,

may be granted and/or permitted to

become effective.

Louisiana Power & Light Company (70–

8487)

Louisiana Power & Light Company

(‘‘LP&L’’ or ‘‘Company’’), 639 Loyola

Avenue, New Orleans, Louisiana 70113,

an electric public-utility subsidiary

company of Entergy Corporation, a

registered holding company, has filed a

post-effective amendment to its

application-declaration under section

6(a), 7, 9(a) and 10 of the Act and rule

54 thereunder.

By order dated October 3, 1995

(HCAR No. 26387) (‘‘Order’’), the

Commission authorized, among other

things, LP&L to issue and sell, through

December 31, 1997: (1) Directly or

indirectly through a subsidiary, not

more than $610 million principal

amount of its first mortgage bonds

(‘‘Bonds’’), debentures (‘‘Debentures’’)

and preferred securities of a subsidiary

of LP&L to be issued in one or more new

series; and (2) collateral bonds in a total

aggregate principal amount of $75

million to secure certain tax-exempt

bonds.

LP&L now proposes to issue and sell

the Debentures either unsecured or

secured by certain LP&L assets, junior

and subordinate to the first lien (‘‘Junior

Lien’’) of its Mortgage and Deed of Trust

dated April 1, 1944, to Bank of Montreal

Trust Company (‘‘Mortgage’’). In

addition, LP&L proposes that the

Debentures may be secured by a pledge

of first mortgage bonds issued under the

Mortgage.

The Debentures will be issued under

either LP&L’s Debenture Indenture,

Indenture for Debt Securities or its

Subordinated Debenture Indenture,

(each, a ‘‘Debenture Indenture’’), as may

be supplemented from time to time.

Debentures issued under the form of the

Debenture Indenture initially will be

secured obligations of the Company,

entitled to the Junior Lien on the

Company’s assets. In connection with

the issuance of Debentures secured by

the Junior Lien under such Debenture

Indenture, the Company may provide

security for the holders of such

Debentures in the form of first mortgage

bonds issued under the Mortgage as it

may be supplemented. Such first

mortgage bonds would be issued on the

basis of unfunded net property

additions and/or previously-retired first

mortgage bonds and delivered to the

trustee under such Debenture Indenture.

The first mortgage bonds could be

issued in an amount equal to the

principal amount of such Debentures

and bear interest at a rate of interest

equivalent to the rate of interest on such

Debentures or bear no interest. These

first mortgage bonds would be separate

and apart from the Bonds (proposed to

be issued and sold in an aggregate

principal amount of not more than $610

million).

The Company’s Amended and

Restated Articles of Incorporation

(‘‘Charter’’) provide, for the benefit of

holders of preferred securities,

restrictions on the amount of unsecured

indebtedness issued by the Company.

As a result of these restrictions, the

Company proposes to issue Debentures

secured by either the Junior Lien or a

pledge of first mortgage bonds in order

that any such Debentures so issued

would not constitute unsecured debt for

purposes of the Charter.

The Debenture Indenture under

which the Company may issue

Debentures secured by the Junior Lien

and/or such first mortgage bonds

provides for the amendment and

restatement of such Debenture

Indenture in its entirety, without the

consent of the holders of the Debentures

outstanding thereunder, to remove the

Junior Lien and to release any such

collateral first mortgage bonds such that

the Debentures would become entirely

unsecured obligations of the Company.

Such an amendment eliminating the

Junior Lien would be subject to the

following conditions: (1) No event of

default has occurred and is continuing

under the Debenture Indenture; and

(2)(a) the Company’s Charter has been

duly amended to eliminate the

restrictions on the issuance of

unsecured indebtedness, (b) all

preferred securities issued by the

Company and outstanding are paid,

retired or redeemed, or (c) holders of

such preferred securities consent to

amend the Company’s Charter for the

purpose of eliminating such restrictions.

The Order also authorized LP&L to

enter into arrangements to finance or

refinance pollution control facilities

(‘‘Facilities’’) through the issuance of

tax-exempt revenue bonds up to an

aggregate principal amount of $65

million, including the possible issuance

of an irrevocable letter of credit from a

bank (‘‘Bank’’) and/or pledge of one or

more series of first mortgage bonds up

to an aggregate principal amount of $75

million to be used as collateral for the

tax-exempt revenue bonds. As an

alternative to the security provided by

the Bank, in order to obtain a more

favorable rating on tax-exempt bonds

and consequently improve the

marketability thereof, the Company may

(a) determine to provide an insurance

policy for the payment of the principal

of and/or interest and/or premium on

one or more series of tax-exempt bonds,

and/or (b) provide security for holders

of tax-exempt bonds and/or the Bank

equivalent to the security accorded to (i)

holders of first mortgage bonds

outstanding under the Company’s

Mortgage by obtaining the

authentication of and pledging one or

more new series of first mortgage bonds

(‘‘Collateral Bonds’’) under the Mortgage

as it may be supplemented or (ii)
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 21509

1New NSP has no operations and exists solely to

facilitate the proposed combination.

2WEC Sub is a Wisconsin corporation that has no

operations and exists solely to facilitate the

proposed combination and will not exist legally at

the time of consummation of the Transaction.

holders of Debentures outstanding

under the Debenture Indenture that are

secured by the Junior Lien by obtaining

the authentication of and pledging one

or more series of Debentures (the

‘‘Collateral Debentures’’) under the

Debenture Indenture.

The Collateral Bonds would be issued

on the basis of unfunded net property

additions and/or previously-retired first

mortgage bonds; Collateral Debentures

would be issued pursuant to the terms

of a Debenture Indenture. The Collateral

Bonds or Collateral Debentures would

be delivered to the trustee under the

Indenture and/or to the Bank to

evidence and secure the Company’s

obligation to pay the purchase price of

the Facilities and the Company’s

obligation to reimburse the Bank under

any reimbursement agreement.

The Collateral Bonds or Collateral

Debentures could be issued in several

ways. First, if tax-exempt bonds bear a

fixed interest rate, the Collateral Bonds

or Collateral Debentures could be issued

in an amount equal to the principal

amount of such tax-exempt bonds and

bear interest at a rate equal to the rate

of interest on such tax-exempt bonds.

Secondly, the Collateral Bonds or

Collateral Debentures could be issued in

an amount equivalent to the principal

amount of such tax-exempt bonds plus

an amount equal to interest on the

Bonds for a specified period. In such

case, the Collateral Bonds or Collateral

Debentures would bear no interest.

Thirdly, the Collateral Bonds or

Collateral Debentures could be issued in

an amount equivalent to the principal

amount of such tax-exempt bonds or in

such amount plus an amount equal to

interest on those Bonds for a specified

period, but carry a fixed interest rate

that would be lower than the fixed

interest rate of the tax-exempt bonds.

Fourthly, the Collateral Bonds or

Collateral Debentures could be issued in

a principal amount equivalent to the

principal amount of tax-exempt bonds

at an adjustable rate of interest, varying

with such tax-exempt bonds but having

a ‘‘cap’’ (not greater than 15%) above

which the interest on Collateral Bonds

or Collateral Debentures could not rise.

Each series of the Collateral Bonds or

Collateral Debentures that bear interest

would bear interest at a fixed interest

rate or initial adjustable interest rate not

to exceed 15%. The maximum aggregate

principal amount of Collateral Bonds

and Collateral Debentures that would be

issued is $75 million. The terms of the

Collateral Bonds or Collateral

Debentures relating to maturity, interest

payment dates, if any, redemption

provisions and acceleration will

correspond to the terms of the related

tax-exempt bonds. Upon issuance, the

terms of each series of the Collateral

Bonds or Collateral Debentures will not

vary during the life of such series except

for the interest rate of any such series

that bears interest at an adjustable rate.

Northern States Power Company and

Wisconsin Energy Corporation, et al.

(70–8833)

Northern States Power Company

(‘‘NSP’’), 414 Nicollet Mall,

Minneapolis, Minnesota 55401, a

combination electric and gas public

utility company incorporated in

Minnesota and an exempt public utility

holding company its combination

electric and gas public utility subsidiary

company incorporated in Wisconsin,

Northern States Power Company

(‘‘NSP–W’’), 100 North Barstow Street,

Eau Claire, Wisconsin 54703, and its

nonutility subsidiary company,

Northern Power Wisconsin Corporation

incorporated in Wisconsin (‘‘New

NSP’’),1 414 Nicollet Mall, Minneapolis,

Minnesota, and Wisconsin Energy

Corporation (‘‘WEC’’), an exempt public

utility holding company incorporated in

Wisconsin, and its combination electric

and gas public utility subsidiary

company incorporated in Wisconsin,

Wisconsin Electric Power Company

(‘‘WEPCO’’), both located at 231 West

Michigan Street, Milwaukee, Wisconsin

53203 (together, ‘‘Applicants’’), have

filed jointly an application-declaration

under sections 2(b), 3(a)(2), 4, 5, 6(a), 7,

8, 9, 10, 11, 12(b), 13(b), 32 and 33 of

the Act and rules 42, 43, 45, 81, 83, 87,

88, 90 and 91 thereunder.

The Applicants proposed to combine

NSP and WEC (‘‘Transaction’’) under

the Agreement and Plan of Merger,

dated April 28, 1995 and amended and

restated on July 26, 1995 (‘‘Merger

Agreement’’). The Merger Agreement is

among NSP, WEC, New NSP and WEC

Sub Corp. (‘‘WEC’’ Sub’’).2 Generally,

the Merger Agreement contemplates: (1)

the acquisition by WEC of all of the

issued and outstanding common stock

of NSP; and (2) the acquisition by

WEPCO of substantially all of the assets

of NSP–W. Following the Transaction,

WEC will be renamed Primergy

Corporation (‘‘Primergy’’) and will

register with the Commission under

section 5 of the Act.

Applicants and Background

NSP is engaged primarily in the

generation, transmission and

distribution of electricity throughout a

30,000 square mile service area. NSP

provides electric utility service in South

Dakota and electric and gas utility

service in Minnesota and North Dakota.

NSP purchases, distributed and sells

natural gas to retail customers, and

transports customer-owned gas, in

approximately 100 communities in this

area. Of the more than 2.5 million

people served by NSP, the majority are

concentrated in the Minneapolis-St.

Paul metropolitan area. As of December

31, 1995, NSP provided electric utility

service to approximately 1,100,000

customers and gas utility service to

approximately 330,000 customers.

NSP has seven direct wholly owned

subsidiaries that are engaged in

nonutility businesses. These

subsidiaries are: (1) Viking Gas

Transmission Company, a natural gas

transmission company operating in

Minnesota, Wisconsin and North

Dakota; (2) Cenerprise, Inc., a natural

gas and eclectic power marketing and

brokering company which also provides

energy conservation and management

services and energy products and

services and which has several energy

related businesses; (3) Eloigne

Company, affordable housing

investment and development company

which has investments in a variety of

low-income housing and other projects;

(4) First Midwest Auto Park, Inc., a

company which owns and operates a

parking garage located next to NSP’s

headquarters; (5) Cormorant

Corporation, a company which engages

in oil, gas, coal lignite and uranium

exploration and the acquisition of fuel

resources; (6) United Power & Land

Company, a company which owns and

hold, and sometimes leases, real

property which is generally surrounding

or adjacent to property owned and used

by NSP in its regulated operations; and

(7) NRG Energy, Inc., a company that

develops, builds, acquires, owns and

operates several non-regulated energy

related businesses, owns and operates

certain resource recovery businesses

and steam and chilled water businesses,

and through subsidiaries and affiliates,

is involved in a variety of independent

power projects, energy-related services

and fuel enhancement and related

projects and other nonutility businesses

both domestic and international.

NSP–W is engaged in the generation,

transmission, and distribution of

electricity to: (1) Approximately 208,000

retail customers in an area of

approximately 18,900 square miles in

northwestern Wisconsin; (2)

approximately 9,100 retail customers in

an area of approximately 300 square

miles in the western portion of the
21510 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

3Primergy Services will be incorporated in

Wisconsin to serve as the service company for the

Primergy system. The Additional Service

Companies would be known as Primergy

Generation Corporation (‘‘Primergy GC’’) and

Primergy Nuclear Corporation (‘‘Primergy NC’’).

Primergy GC would be responsible for the

operation, maintenance, repair, rehabilitation and

replacement of all nonnuclear generation and steam

and/or chilled water system facilities owned or

operated by the system. Primergy NC would be

responsible for the operation, maintenance, repair,

rehabilitation and replacement of all nuclear

generation facilities owned or operated by the

Upper Peninsula of Michigan; and (3) to

10 wholesale customers in the same

general area. NSP–W purchases,

distributes and sells to retail customers

or transports customer-owned natural

gas in the same service territory to

approximately 68,200 customers in

Wisconsin and 4,700 customers in

Michigan.

NSP–W has two wholly owned

subsidiaries. These subsidiaries are

Clearwater Investment, Inc., an

affordable housing investment and

development company which has

investments in a variety of low-income

housing and other projects, and NSP

Lands, Inc., a company which is

currently developing for sale land

owned by NSP–W. It also has a 78%

owned subsidiary, Chippewa &

Flambeau Improvement Company, a

company which builds, maintains and

operates dams and reservoirs on the

Chippewa and Flambeau Rivers in

Wisconsin.

NSP common stock is listed on the

New York Stock Exchange, Inc.

(‘‘NYSE’’) and the Chicago and Pacific

Stock Exchanges. As of December 31,

1995, there were 68,175,934 shares of

NSP common stock and 2,400,000

shares of NSP cumulative preferred

stock outstanding. NSP–W does not

have any preferred stock outstanding

and all of its common stock is owned by

NSP. On a consolidated basis, for the

year ended December 31, 1995, NSP’s

operating revenues were approximately

$3.146 billion, of which approximately

$2.401 billion were derived from

electric operations, approximately $414

million from gas operations and

approximately $331 million from other

operations,. Also for the year ended

December 31, 1995, approximately

10.2% of NSP’s consolidated operating

revenues were derived from nonutility

businesses. In 1995, NSP–W provided

approximately 15.1% of NSP’s

consolidated operating revenues.

Consolidated assets of NSP and its

subsidiaries as of December 31, 1995

were approximately $6.229 billion,

consisting of $3.681 billion in net

electric utility property, plant and

equipment ($3.135 billion for NSP and

$546 million for NSP–W); $376 million

in net gas utility property, plant and

equipment ($320 million for NSP and

$56 million for NSP–W); and $2.172

billion in other corporate assets.

WEC, which will change its name to

primer Corporation at the time of the

consummation of the Transaction, has

one public utility subsidiary, WEPCO.

WEPCO is engaged in the business of

generating, transmitting, distributing

and selling electric energy to

approximately 955,616 customers as of

December 31, 1995. Its service area

spans approximately 12,000 square

miles in southeastern, including the

Milwaukee area, central and northern

Wisconsin and in the Upper Peninsula

of Michigan and includes a population

estimated at over 2,200,000. WEPCO

also purchases, distributes and sells to

retail customers and transports

customer-owned natural gas to

approximately 357,030 customers as of

December 31, 1995 in three distinct

service areas in Wisconsin: west and

south of the City of Milwaukee, the

Appleton area and the Prairie du Chien

area. The gas service territory, which

has an estimated population of over

1,100,000, is largely within the electric

service area of WEPCO. WEPCO also

distributes and sells steam supplied by

its Valley Power Plant to approximately

473 space heating and processing

customers (as of December 31, 1995) in

downtown and near southside

Milwaukee.

WEC’s common stock (‘‘Common

Stock’’) is listed on the NYSE. As of

December 31, 1995, there were

110,819,337 shares of WEC Common

Stock outstanding. WEC has no shares

of preferred stock outstanding. All of

WEPCO’s common stock is owned by

WEC. As of December 31, 1995, there

were 304,508 shares of WEPCO

preferred stock outstanding. WEPCO’s

outstanding preferred stock will not be

affected by the Transaction. On a

consolidated basis, for the year ended

December 31, 1995, WEPC’s operating

revenues were approximately $1.779

billion, of which approximately $1.437

billion were derived from electric

operations, approximately $318 million

from gas operations, approximately $15

million from steam operations and

approximately $9 million from other

operations. Operating revenues from

WEC’s nonutility subsidiaries were

approximately one-half of 1% of WEC’s

consolidated total operating revenues

for the year ended December 31, 1995.

Consolidated assets of WEC and its

subsidiaries as of December 31, 1995,

were approximately $4.561 billion,

consisting of $3.907 billion in net

electric utility property, plant and

equipment, $387 million in net gas

utility property, plant and equipment,

$25 million in net steam utility

property, plant and equipment and $242

million in nonutility assets.

WEC has seven wholly owned

nonutility subsidiaries devoted

primarily to stimulating economic

growth in WEPCO’s service area and to

capitalizing on diversified investment

opportunities, all of which have been

formed under and pursuant to the

requirements and policies of the

Wisconsin Holding Company Act. These

subsidiaries are: (1) Badger Service

Company, a company which holds coal

rights in Indiana; (2) Minergy Corp., a

company engaged in the business of

developing and marketing proprietary

technologies designed to convert high

volume industrial and municipal wastes

into value-added products and which

will build and operate a paper-sludge

recycling facility; (3) WEC Generation

International Inc., a company which

will investigate investment

opportunities and which has two,

currently inactive, international

subsidiaries; (4) Wisconsin Michigan

Investment Corporation, a company

which engages in investment and

financing activities which include

advances to affiliated companies and

investments in financial instruments

and partnerships developing affordable

housing and other businesses; (5)

WISPARK Corporation, a real estate

development company which engages

in all aspects of real estate development

and which holds investment and

ownership positions in a variety of real

estate projects; (6) WISVEST

Corporation, a company which invests

in energy-related activities and holds

investments in several energy-related

companies; and (7) WITECH

Corporation, a company which provides

venture capital and holds equity and

other positions in a variety of

businesses. In addition, WEC holds a

50% interest in Custometrics LLC, a

joint venture which will provide

systems solutions relating to billing and

other aspects of the customer service

segment of the energy services industry.

Summary of Merger Related

Transactions

In addition to the Transaction itself

and as described more fully below as

needed, the Applicants propose: (1) to

form under rule 88 of the Act a new

service company through Primergy’s

acquisition of all of the common stock

of Primergy Services, Inc. (‘‘Primergy

Services’’) and may form, in the same

way, one or more other service

companies (‘‘Additional Service

Companies’’),3 and to enter into service
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 21511

system. The authorized capital stock of Primergy

Services and any Additional Service Companies

would consist of 1,000 shares of common stock, par

value $.01 per share.

4Applicants also seek approval with regard to the

issuance, sale and acquisition of the capital stock

of certain of the Primergy system’s approximately

16 nonutility subsidiaries in connection with the

possible formation of Primergy Hold and the

requisite authority to realign the nonutility

companies as first-tier subsidiaries of Primergy. The

authorized capital stock of Primergy Hold will

consist of 1,000 shares of common stock, par value

$.01 per share. Upon consummation of the

Transaction, all issued and outstanding shares of

Primergy Holding will be held by Primergy. If

Primergy Hold is not formed, the direct nonutility

subsidiaries of NSP and WEC will become direct

subsidiaries of Primergy. See, SEC File No. 70–

8833, Form U–1 (‘‘Application-Declaration’’),

Exhibits E–12 and 13 (Primergy corporate charts

with and without Primergy Hold).

5See, Entergy Corporation, Holding Co. Act

Release No. 26322 (June 30, 1995). 6Application-Declaration at 101–03.

agreements; (2) to form a new holding

company subsidiary (‘‘Primergy Hold’’),

if needed, to hold, all or some of

Primergy’s interests in certain of its

nonutility investments in existence

prior to the Transaction; 4 (3) that

Primergy will acquire all of the

outstanding voting securities of certain

NSP nonutility subsidiaries or, if

Primergy Hold is not formed, all of the

outstanding voting securities of all of

NSP’s direct nonutility subsidiaries; (4)

that Primergy will retain the gas

properties of NSP and WEPCO and

continue their operation as combination

gas and electric utilities; (5) that

Primergy will retain the nonutility

businesses and affiliates of NSP and

WEC; (6) that Primergy will issue and/

or acquire in the open market up to 18.2

million shares of its common stock

(‘‘Primergy Common Stock’’) for five

years from the date of an order in this

matter in connection with its

shareholder dividend reinvestment and

stock purchase plan and its stock

incentive plan; (7) to provide services at

market rates, pursuant to an exemption

from the at-cost standard contained in

section 13(b) of the Act and provided for

in rules 90 and 91, in connection with:

(a) certain affiliated qualifying facilities

(‘‘QFs’’), independent power projects

(‘‘IPPs’’), exempt wholesale generators

(EWG’’), foreign utility companies

(‘‘FUCOs’’) and with other associated

entities presently existing or to be

formed after the Transaction that derive

no part of their income from the

generation, transmission or distribution

of electric energy for sale or the

distribution of natural gas at retail in the

United States (‘‘Primergy Exempt

Associate Companies’’), which services

may be provided by Primergy Services,

the Additional Service Companies, the

Primergy Exempt Associate Companies

and other NSP associates and affiliates 5;

and (b) transactions approved by any

state public utility regulatory agency,

the Federal Energy Regulatory

Commission or transactions otherwise

exempted from section 13(b)

requirements; (8) that all existing intrasystem debt, guarantees of debt and

other intrasystem transactions among

NSP and WEC and their respective

associated and affiliated companies be

approved by the Commission6; and (9)

that the Commission issue an order

temporarily exempting New NSP from

the registration requirements of section

5 of the Act for the limited time in

which New NSP owns NSP–W.

The Transaction

The Transaction will be accomplished

through a three-stage process. In the first

state, NSP will reincorporate in

Wisconsin by merging into New NSP.

Immediately prior to this merger, and

for state public utility regulatory

purposes, NSP–W will transfer the gas

utility assets necessary to furnish gas

utility services to the communities of

LaCrosse and Hudson, Wisconsin to

New NSP (‘‘Designated Gas Utility

Assets’’). In the second stage, WEC Sub

will merge with and into New NSP,

with New NSP left as the surviving

corporation. In the third stage, NSP–W

will merge into WEPCO and ownership

of all other NSP subsidiaries will be

transferred from NSP to Primergy.

WEPCO will be then renamed

Wisconsin Energy Company. Following

the Transaction Primergy proposes to

realign certain nonutility subsidiaries

and to acquire all of the capital stock of

Primergy Hold, if it is deemed

necessary. Primergy Hold will serve as

a holding company acquiring the capital

stock of certain nonutility subsidiaries

of NSP and WEC.

Specifically, the Merger Agreement

provides for: (1) The merger of NSP with

and into New NSP (‘‘Reincorporation

Merger’’) pursuant to which (a) each

issued and outstanding share of

common stock, par value $2.50 per

share, of NSP (‘‘NSP Common Stock’’),

except shares held by NSP shareholders

who perfect dissenters’ rights (‘‘NSP

Dissenting Shares’’), will be canceled

and converted into one share of

common stock, par value $2.50 per

share, of New NSP (‘‘New NSP Common

Stock’’), and (b) each issued and

outstanding share of cumulative

preferred stock, par value $100.00 per

share, of NSP (‘‘NSP Preferred Stock’’),

except NSP Dissenting Shares, will be

cancelled and converted into one share

of cumulative preferred stock, par value

$100.00 per share, of New NSP (‘‘New

NSP Preferred Stock’’) with terms,

including dividend rates and general

voting rights, and designations under

New NSP’s Articles of Incorporation

identical to those of the canceled shares

of NSP Preferred Stock under NSP’s

existing Restated Articles of

Incorporation; and (2) the merger of

WEC Sub with and into New NSP (‘‘NSP

Merger,’’ together with the

Reincorporation Merger, the ‘‘Mergers’’)

pursuant to which (a) each issued and

outstanding share of New NSP Common

Stock will be canceled and converted

into 1.626 (‘‘Ratio’’) shares of common

stock, par value $.01 per share, of

Primergy Common Stock and (b) each

issued and outstanding share of New

NSP Preferred Stock will remain

outstanding and shall be unchanged

thereby, except for any shares of New

NSP Common Stock and New NSP

Preferred Stock owned directly or

indirectly by New NSP or WEC, which

will be canceled and will not be

converted or remain outstanding.

Each issued and outstanding share,

par value $.01 per share, of WEC

Common Stock will remain outstanding

and unchanged, as one share of

Primergy Common Stock. Based upon

the capitalization of NSP and WEC on

April 28, 1995 (the date the Merger

Agreement was initially signed), and the

Ratio, holders of NSP Common Stock

and WEC Common Stock would each

have held 50% of the aggregate number

of shares of Primergy Common Stock

that would have been outstanding if the

Mergers had been consummated as of

such date. The Applicants state that the

proposed Transaction qualifies for

treatment as a pooling of interests for

federal income tax purposes.

Upon completion of the Transaction,

Primergy will own two combination

electric and gas utility companies, NSP

and WEPCO. NSP will continue to

operate and own the same utility

facilities at the same locations outside

Wisconsin as prior to the Transaction,

along with the Designated Gas Utility

Assets formerly owned by NSP–W.

WEPCO will own and operate the same

utility facilities at the same locations as

prior to the Transaction, along with the

balance of the gas and electric utility

assets of NSP–W. The Merger

Agreement provides that Primergy’s

principal corporate offices will be in

Minneapolis, Minnesota. NSP and WEC

will retain offices in Minneapolis and

Milwaukee respectively as their regional

headquarters. Primergy’s board of

directors will consist of a total of 12

directors, 6 of whom will be designated

by NSP and 6 of whom will be

designated by WEC.
21512 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

7Entergy Corporation, supra.

8Application-Declaration, Annex H.

9As a result of the acquisition, EEIC anticipates

that it will own approximately 20 percent of STI’s

issued and outstanding capital stock. However,

EEIC states that it will only acquire a number of

shares representing up to 9.9 percent of the then

outstanding voting common stock of STI. In the

event of an initial public offering of STI common

stock, any share of nonvoting common stock

acquired by EEIC would automatically convert to

share of voting common stock.

Services

The Applicants further request the

authority to form Primergy Services and

the Additional Service Companies and

for them to perform services. Primergy

Services and the Additional Services

Companies may provide services for

NSP and WEPCO, and Primergy

Services may provide services for any

Additional Service Companies pursuant

to a service agreement and for the

nonutility subsidiaries of the Primergy

system pursuant to a nonutility service

agreement. Such services may include

any of the following: administrative,

management and support services,

including services relating to

information systems, meters and

transportation, electric and gas system

maintenance, marketing and customer

relations, transmission and distribution,

engineering and construction, power

engineering and construction, human

resources, materials management,

facilities, accounting, power planning,

public affairs, legal, rates, finance, rights

of way, internal auditing, environmental

affairs, fuels, investor relations, strategic

and operations planning, and general

administrative and executive

management services. It is anticipated

that such service companies will be

staffed primarily by transferring

personnel from the current employee

rosters of NSP, WEPCO, and their

subsidiaries.

Primergy and the Additional Service

Companies will record transactions

using the existing data capture and

accounting systems of each company.

Costs will be accumulated in accounts

of each service company and directly

assigned, distributed and allocated to

the appropriate company pursuant to

the Service Agreement.

The Applicants state that the

accounting and cost allocation methods

and procedures of all such service

companies which are formed, including

Primergy Services, will comply with the

Commission’s standards for service

companies in registered holding

company systems, and that the billing

systems of all such service companies,

including Primergy Services, will use

the Commission’s ‘‘Uniform System of

Accounts for Mutual Service Companies

and Subsidiary Service Companies.’’

Except as permitted under the Act or by

the Commission, all services provided

by such service companies to affiliated

companies will be on an ‘‘at cost’’ basis

as determined by rules 90 and 91 of the

Act.

Primergy and the Additional Service

Companies request that the Commission

grant an exemption from the provisions

of rules 90 and 91 under section 13(b)

of the Act for the following transactions:

(1) Services provided for EWGs, FUCOs

and associate companies that derive no

part of their income, directly or

indirectly, from the generation,

transmission or distribution of electric

energy for sale, or the distribution of

natural gas at retail, in the United

States; and (2) services provided to an

associated EWG, QF or IPP, provided

that the purchaser of the electricity is

not an associate company of Primergy.

No services will be provided at marketbased rates to an EWG, QF or IPP selling

electricity to NSP or WEPCO, unless

authorized by the Act or the

Commission.

The Applicants request further that

the Commission permit the various

subsidiaries and affiliates that are

providing currently services, including

operation and maintenance, and selling

goods to EWGs and QFs or to entities

that will qualify as EWGs, FUCOs or

QFs following the Transaction to

continue such transactions without

compliance with the at-cost provisions

of section 13(b) and the rules

thereunder. In addition, the Applicants

request an exception regarding NSP’s

affiliated companies, Landfill Power

LLC and Minnesota Methane LLC, that

own portions of QF facilities that sell

power to NSP under Public Utility

Regulatory Policies Act contracts

approved by the Minnesota Public

Utility Commission (‘‘MPUC’’).7

The Applicants request further that

the Commission exempt from the at-cost

standards various existing contracts,

which have been approved by the

MPUC or the Public Service

Commission of Wisconsin, among NSP

and WEC affiliates that are not EWGs or

QFs or entities that will become EWGs,

FUCOs or QFs following the

Transaction.8 Finally, a section 13(b)

exemption is requested regarding NRG

Energy, Inc.’s (‘‘NRG’’) management and

administrative services to be provided

to O’Brien Environmental Services, Inc.,

which was partially acquired by NRG

pursuant to a reorganization plan. The

services have been approved by the

bankruptcy court as part of the

reorganization plan.

EUA Energy Investment Corporation

(70–8837)

EUA Energy Investment Corporation

(‘‘EEIC’’), P.O. Box 2333, Boston,

Massachusetts 02107, a nonutility

subsidiary company of Eastern Utilities

Associates, a registered holding

company, has filed an applicationdeclaration under sections 6(a), 7, 9(a)

and 10 of the Act and rules 45, 53 and

54 thereunder.

By orders dated December 4, 1987 and

January 11, 1988 (HCAR Nos. 24525 and

24515A, respectively (‘‘Orders’’), EEIC

was authorized, among other things, to

conduct energy and energy conservation

research and to invest, directly or

indirectly in such activities.

Pursuant to the Orders, EEIC now

proposes to invest through December

31, 1998, approximately $4 million to

acquire approximately 1,052,630 shares

of common stock of Separation

Technologies, Inc. (‘‘STI’’), at a purchase

price of $3.80 per share, pursuant to the

terms of a stock purchase agreement

(‘‘Agreement’’). STI is engaged in the

research, development, design, sale,

installation, construction and servicing

of solid and liquid materials separation

systems and facilities including,

without limitation, a system for

economically separating unburned

carbon from coal (or fly) ash produced

by utility generating plants.

EEIC will invest in STI by acquiring

shares of: (1) STI’s authorized but

unissued common stock; and (2) a to-beformed class of nonvoting common

stock which, in all respects other than

voting rights, would be identical to

STI’s currently authorized common

stock.9

EEIC also requests authorization to

make project financing available up to

an aggregate principal amount of $15

million for the installation and

construction of STI fly ash separation

projects. The Agreement contains

provisions granting EEIC and exclusive

right of first negotiation with respect to

financing all fly ash separation projects

designed, sold, constructed and/or

installed by STI during the eighteen

month period immediately following

the execution of the Agreement,

excepting only financing for: (1) STI’s

Colbert Station project located in

Alabama; and (2) any host utility

financed projects.

EEIC proposes to provide such

financing by entering into joint

arrangements with STI at locations

where STI equipment will be installed.

EEIC’s investment in these utility

locations is anticipated to range

between $0.5 and $2.5 million per

installation. EEIC’s investments in such

future projects with STI may take the
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 21513

form of, without limitation, joint

ventures, general partnerships, limited

partnerships, teaming agreements,

royalties or other revenue sharing,

special purpose entities, loans and

equity participations.

STI has its own employees, and no

employees of the EUA system retail

electric utilities will be assigned to

perform services for STI. EEIC does not

anticipate the need to hire any

additional personnel in connection with

EEIC’s investment in STI or the exercise

of its financing rights under the

Agreement.

Entergy Corporation (70–8839)

Entergy Corporation (‘‘Entergy’’ or

‘‘Company’’), 639 Loyola Avenue, New

Orleans, Louisiana 70113, a registered

holding company, has filed an

application-declaration under sections

6(a) and 7 of the Act and rule 54

thereunder.

Entergy proposes to issue and sell

through December 31, 2000, up to ten

million additional shares of its

authorized but unissued common stock,

par value $.01 per share (‘‘Common

Stock’’) pursuant to a new Dividend

Reinvestment and Stock Purchase Plan

‘‘Plan’’).

The Common Stock will offered by all

holders of shares of Common Stock and

other interested investors (each a

‘‘Participant’’) pursuant to the Plan

whereby Participants voluntarily may

elect to: (1) automatically reinvest

dividends received on all of their shares

of Common Stock; or (2) automatically

reinvest dividends received on less than

all of their shares of Common Stock and

continue to receive cash dividends on

their remaining shares; and/or (3) invest

in additional shares of Common Stock

by making optional cash investments of

not less than $100 nor more than $3,000

per month, with certain exceptions.

Interested investors that are not

shareholders may make optional cash

investments in the Common Stock, but

will be subject to an initial minimum

investment of $1,000 and, subject to

certain exceptions, a maximum of

$3,000 for that month.

The shares of Common Stock

purchased on behalf of the Participants

to fulfill the requirements of the Plan

will be in the Company’s discretion,

either previously issued shares

purchased on the open market or in

privately negotiated transactions or

newly issued shares purchased directly

from the Company. The decision

whether to allow the Plan to purchase

new but unissued shares or shares on

the open market may be made by the

Company only once in any three-month

period.

Under the Plan, the purchase price of

newly issued shares will be the

weighted average of the daily high and

low sales prices of the Common Stock

on the New York Stock Exchange

(‘‘NYSE’’) during the pricing period,

which consists of the twelve trading

days immediately preceding the

investment date. The purchase price for

shares purchased on the open market

will be the weighted average price paid

by the Plan including brokerage fees and

commissions.

Optional cash investments in excess

of $3,000 per month may be made

pursuant to a waiver granted at the

discretion of the Company (‘‘Request for

Waiver’’). The Company has sole

discretion as to whether to grant any

Request for Waiver. In deciding whether

to grant a Request for Waiver, the

Company may consider relevant factors

including, but not limited to, whether

the Plan has been acquiring newly

issued shares from the Company or

acquiring shares in the open market or

in privately negotiated transactions from

third parties, the Company’s need for

additional capital, the attractiveness of

obtaining such additional capital

through a sale of Common Stock as

compared to the sources of other funds,

the purchase price likely to apply to a

sale of the Common Stock, the

Participants submitting the requests, the

extent and nature of such Participants’

prior participation in the Plan, the

number of shares of Common Stock held

of record by such Participants and the

amount of their proposed investments,

and the aggregate amount of optional

cash investments in excess of the

allowable maximum that have been

submitted by all Participants. If

Requests for Waiver are submitted at

any time for an aggregate investment

amount in excess of the amount, if any,

that the Company is then willing to

accept, the Company may grant such

Requests for Waiver in the order of

receipt, pro rata or by any other method

the Company determines is appropriate.

The Company may also establish, for

each monthly pricing period under the

Plan, a minimum price (‘‘Threshold

Price’’) applicable to the purchase of

shares directly from the Company

pursuant to a Request for Waiver. If

established for any pricing period, the

Threshold Price will be the minimum

dollar amount that the average of the

high and low sales prices of the

Common Stock on the NYSE for each

trading day of the relevant pricing

period must equal or exceed. In the

event the Threshold Price is not

satisfied or no trades are made on the

NYSE for any trading day in the pricing

period, then that trading day and all

trading prices for that day will be

excluded in the determination of the

purchase price. Additionally, for each

trading day of the pricing period

excluded from the pricing period, onetwelfth of the total amount of the

optional cash investment of each

Participant made pursuant to a Request

for Waiver will be returned to that

Participant without interest.

For those purchases of Common Stock

made pursuant to a Request for Waiver,

the Company, at least three business

days prior to the first day of the

applicable pricing period, may also

establish a discount from the purchase

price applicable to those optional cash

investments (‘‘Waiver Discount’’). The

Waiver Discount may be between 0%

and 3% and may vary each month, but

once established will apply uniformly to

all optional cash investments made for

that month pursuant to a Request for

Waiver. The Waiver Discount will be

established at the Company’s total

discretion after a review of current

market conditions, the level of

participation in the Plan and current

and projected capital needs. The

Company has no present plans to

establish either a discount or minimum

price for optional cash investments of

$3,000 or less or for dividend

reinvestments, but reserves the right

under the Plan to do so in the future.

The Plan will be administered by

Mellon Bank, N.A. or such successor

administrator as Entergy may designate

(‘‘Administrator’’). The Administrator

will act as agent for Participants, keep

records of the accounts of Participants,

send regular account statements to

Participants, and perform other duties

relating to the Plan. Shares purchased

for each Participant under the Plan will

be held by and registered in the name

of the Administrator or its nominee on

behalf of the Participants, unless and

until a Participant requests that stock

certificates be issued. No service fee will

be paid by Participants for shares

purchased directly from the Company,

but Participants will pay certain

administrative fees and/or commissions

on all other transactions made pursuant

to the Plan.

A Participant retains all voting rights

relating to shares purchased under the

Plan and credited to his account, and

such shares will be voted in accordance

with his instructions. A Participant may

withdraw from the Plan at any time

upon written notice. In addition,

without withdrawing from the Plan, a

Participant is entitled to demand and

receive a certificate representing any

number of whole shares of Common

Stock credited to his account. Entergy

reserves the right to suspend, modify
21514 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

(subject to any requisite Commission

approval) or terminate the Plan at any

time.

National Fuel Gas Company (70–8841)

National Fuel Gas Company (‘‘NFG’’),

10 Lafayette Square, Buffalo, New York

14203, a registered public utility

holding company, has filed an

application-declaration under sections

6(a), 7, 9(a), 10 and 12(c) of the Act and

rules 42 and 46 thereunder.

NFG proposes to implement a

sharedholder rights plan to discourage

unwanted takeover bids. The Board of

Directors of NFG (‘‘Board’’) proposes to

declare a dividend distribution of one

right (‘‘Right’’) for each outstanding

share of common stock of NFG

(‘‘Common Stock’’), $1.00 per value, to

shareholders of record at the close of

business on a record date yet to be

established (‘‘Record Date’’). Each Right

would entitle the registered holder to

purchase from NFG one-half of one

share of Common Stock at a price of

$130 per share, subject to adjustment

(‘‘Purchase Price’’).

Until the earliest to occur of (i) ten

days following the date (‘‘Share

Acquisition Date’’) of the public

announcement that a person or affiliated

group (‘‘Acquiring Person’’) has

acquired, or obtained the right to

acquire, beneficial ownership of

Common Stock or other voting

securities (‘‘Voting Stock’’) that have

10% or more of the voting power of the

outstanding shares of Voting Stock or

(ii) ten days following the

commencement or announcement of an

intention to make a tender offer, or

exchange offer, the consummation of

which would result in such person

acquiring, or obtaining the right to

acquire, beneficial ownership of Voting

Stock having 10% or more of the voting

power of the outstanding shares of

Voting Stock (the earlier of such dates

being called the ‘‘Distribution Date’’),

the Rights will be evidenced, with

respect to any shares of Common Stock

outstanding as of the Record Date, by

the Common Stock certificates

representing those outstanding shares.

Until the Distribution Date, the Rights

will be transferable only with the

Common Stock, and new Common

Stock certificates issued after the Record

Date will contain a notation

incorporating the Agreement by

reference. As soon as practicable

following the Distribution Date, separate

certificates evidencing the Rights

(‘‘Rights Certificates’’) will be mailed to

holders of record of Common Stock as

of the close of business on the

Distribution Date and such separate

Right Certificates alone will evidence

the Rights.

The Rights are not exercisable until

the Distribution Date. As in the case

with most right plans which are in

place, the Rights will expire at the close

of business on the tenth anniversary of

the Record Date, unless earlier

redeemed or exchanged by NFG as

described below.

Subject to redemption or exchange of

the Rights, at any time following the

Distribution Date, each holder of a Right

will have the right to receive, upon

exercise, Common Stock (or, in certain

circumstances, cash, property or other

securities of NFG) having a value to two

times Purchase Price of the Right then

in effect. However, all Rights that are, or

under certain circumstances were,

beneficially owned by any Acquiring

Person will be null and void.

In the vent that, at any time following

the Share Acquisition Date, (i) NFG is

acquired in a merger or other business

combination transaction, or (ii) 50% or

more of NFG’s assets or earning power

are sold or transferred, each holder of a

Right shall thereafter have the right to

receive, upon exercise, common stock of

the acquiring company having a value

equal to two times the Purchase Price of

the Right then in effect.

The Purchase Price payable, and the

number of shares of Common Stock (or

other securities, as the case may be)

issuable upon exercise of the Rights are

subject to adjustment from time to time

to prevent dilution (i) in the event of a

stock dividend on, or a subdivision,

combination or reclassification of, the

Common Stock, (ii) upon the grant to

holders of the Common Stock of certain

rights or warrants to subscribe for or

purchase shares of the Common Stock

or convertible securities at less than the

then current market price of the

Common Stock or (iii) upon the

distribution to holders of the Common

Stock of evidences of indebtedness or

assets (excluding regular periodic cash

dividends or dividends payable in

Common Stock) or of subscription rights

or warrants (other than those referred to

above). Prior to the Distribution Date,

the Board may make such other

equitable adjustments as it deems

appropriate in the circumstances in

addition to or in lieu of any adjustment

otherwise required by the foregoing.

With certain exceptions, no

adjustment in the Purchase price will be

required until the earlier of (i) three

years from the date of the event giving

rise to such adjustment or (ii) the time

at which cumulative adjustments

require an adjustment of at least 1% in

such Purchase Price. No fractional

shares of Common Stock will be issued

and, in lieu thereof, an adjustment in

cash will be made based on the market

price of the Common Stock on the last

trading date prior to the date of exercise.

At any time prior to 5:00 p.m. Buffalo,

New York time on the tenth day

following the Share Acquisition Date,

NFG may redeem the Rights in whole,

but not in part, at a price of $0.01 per

Right (‘‘Redemption Price’’), payable in

cash or stock. Under certain

circumstances set forth in the

Agreement, the decision to redeem shall

require the concurrence of a majority of

the Independence Directors. An

‘‘Independent Director’’ means any

member of the Board who was a

member of the Board prior to the date

of the Agreement, and any person who

is subsequently elected to the Board if

such person is recommended or

approved by a majority of the

Independent Directors, but shall not

include an Acquiring Person or any

representative thereof. Immediately

upon the action of the Board electing to

redeem the Rights, NFG shall make

announcement thereof and the only

right of the holders of Rights will be to

receive the Redemption Price.

At any time after a person becomes an

Acquiring Person, the Board may

exchange the Rights (other than Rights

owned by an Acquiring Person, which

become void), in whole or in part, at an

exchange ratio of one share of Common

Stock and/or other securities, cash or

other assets deemed to have the same

value as one share of Common Stock,

per Right, subject to adjustment.

Until a Right is exercised or

exchanged for Common Stock, the

Rights, as such, will not grant the

holders thereof rights as a stockholder of

NFG. While the distribution of the

Rights will not be taxable to

stockholders or to NFG, stockholders

may, depending upon the

circumstances, recognize taxable

income in the event that the Rights

become exercisable for Common Stock

of NFG (or other consideration) or for

the stock of the Acquiring Person.

Any of the provisions of the

Agreement may be amended by the

Board without the consent of the

holders of the Rights prior to the

Distribution Date. Thereafter, the

Agreement may be amended by the

Board in order to cure any ambiguity,

defect or inconsistency, or to make

changes which do not adversely affect

the interests of holders of Rights

(excluding the interest of any Acquiring

Person); provided, however, that no

supplement or amendment may be

made on or after the Distribution Date

which changes those provisions relating

to the principal economic terms of the
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 21515

Rights. The Board may also, with the

concurrence of a majority of the

Independent Directors, extend the

redemption period for up to an

additional 20 days.

Entergy Corporation, et al. (70–8845)

Entergy Corporation (‘‘Entergy’’), 639

Loyola Avenue, New Orleans, Louisiana

70113, a registered public utility

holding company, and its wholly owned

subsidiary company Entergy Power, Inc.

(‘‘EPI’’), 900 South Shackleford Road,

Little Rock, Arkansas 72211, (both,

‘‘Declarants’’), have filed a declaration

under section 12(c) of the Act and rule

46 thereunder.

EPI proposes to make one or more

cash payments in an aggregate amount

not to exceed $55 million to Entergy

from time to time through December 31,

1998 out of EPI’s unearned surplus. As

of December 31, 1995, EPI had

approximately $249,950,000 of capital

or unearned surplus and cash and cash

equivalents of approximately

$59,482,000. The cash equivalents of

EPI include temporary cash investments

of $59,225,000, which derive from

capital contributions made by Entergy to

EPI in July and December 1995.

Declarants state that these liquid assets

are far in excess of any foreseeable

capital needs of EPI. Therefore, EPI

proposes to return all or most of these

assets to Entergy, EPI’s sole shareholder,

through the proposed cash payments.

For the Commission, by the Division of

Investment Management, pursuant to

delegated authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 96–11669 Filed 5–9–96; 8:45 am]

BILLING CODE 8010–01–M

[Rel. No. IC–21937; 812–9854]

Van Kampen American Capital

Comstock Fund, et al.; Notice of

Application

May 3, 1996.

AGENCY: Securities and Exchange

Commission (‘‘SEC’’).

ACTION: Notice of Application for

Exemption under the Investment

Company Act of 1940 (the ‘‘Act’’).

APPLICANTS: Van Kampen American

Capital Comstock Fund (‘‘Comstock

Fund’’), Van Kampen American Capital

Enterprise Fund (‘‘Enterprise Fund’’),

Van Kampen American Capital Equity

Income Fund (‘‘Equity Income Fund’’),

Van Kampen American Capital Growth

and Income Fund (‘‘Growth and Income

Fund’’), Van Kampen American Capital

Life Investment Trust on behalf of its

series Common Stock Fund and

Multiple Strategy Fund (‘‘Life Trust’’),

Van Kampen American Capital Pace

Fund (‘‘Pace Fund’’), Common Sense

Trust (‘‘Common Sense Trust’’) on

behalf of its series: Common Sense

Growth Fund, Common Sense Growth

and Income Fund, Common Sense II

Growth Fund, Common Sense II Growth

and Income Fund, Common Sense II

International Equity Fund, Smith

Barney/Travelers Series Fund, Inc.

(‘‘Smith Barney Fund’’) on behalf of its

series American Capital Enterprise

Portfolio, Van Kampen American

Capital Equity Trust (‘‘Equity Trust’’) on

behalf of its series: Van Kampen

American Capital Growth Fund, Van

Kampen American Capital Prospector

Fund, Van Kampen American Capital

Value Fund (collectively, the ‘‘Public

Funds’’); Van Kampen American Capital

Small Capitalization Fund (‘‘Small Cap

Fund’’); and Van Kampen American

Capital Asset Management, Inc.

(‘‘VKACAM’’) and Van Kampen

American Capital Investment Advisory

Corp. (‘‘Advisory Corp.,’’ together with

VKACAM, the ‘‘Advisers’’).

RELEVANT ACT SECTIONS: Order requested

under section 6(c) granting and

exemption from section 12(d)(1), and

under sections 6(c) and 17(b) granting

an exemption from section 17(a).

SUMMARY OF APPLICATION; Applicants

request an order amending a prior order

that permits the Small Cap Fund to

serve exclusively as an investment

vehicle through which certain Public

Funds may invest a portion of their

assets in a portfolio of small

capitalization stocks. The requested

order would add certain parties as

applicants and revise the conditions to

the requested relief.

FILING DATES: The application was filed

on November 17, 1995. Applicants have

agreed to file an amendment during the

notice period, the substance of which is

included in this notice.

HEARING OR NOTIFICATION OF HEARING: An

order granting the application will be

issued unless the SEC orders a hearing.

Interested persons may request a

hearing by writing to the SEC’s

Secretary and serving applicants with a

copy of the request, personally or by

mail. Hearing requests should be

received by the SEC by 5:30 p.m. on

May 28, 1996, and should be

accompanied by proof of service on the

applicants, in the form of an affidavit or,

for lawyers, a certificate of service.

Hearing requests should state the nature

of the writer’s interest, the reason for the

request, and the issues contested.

Person who wish to be notified of a

hearing may request notification by

writing to the SEC’s Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth

Street, N.W., Washington, D.C. 20549.

Applicants: Comstock Fund, Enterprise

Fund, Equity Income Fund, Growth and

Income Fund, Life Trust, Peace Fund,

Small Cap Fund, VKACAM, and

Common Sense Trust, 2800 Post Oak

Boulevard, Houston, Texas 77056;

Smith Barney Fund, 388 Greenwich

Street, New York, New York 10013; and

Equity Trust and Advisory Corp., One

Parkview Plaza, Oakbrook Terrace,

Illinois 60181.

FOR FURTHER INFORMATION CONTRACT:

Sarah A. Wagman, Staff Attorney, at

(202) 942–0654, or Robert A. Robertson,

Branch Chief, at (202) 942–0564 (Office

of Investment Company Regulation,

Division of Investment Management).

SUPPLEMENTARY INFORMATION: The

following is a summary of the

application. The complete application

may be obtained for a fee at the SEC’s

Public Reference Branch.

Applicants’ Representations

1 The Small Cap Fund is an open-end

management investment company for

which VKACAM serves as investment

adviser. The Small Cap Fund invests at

least 80% of its assets in equity

securities of companies with a market

capitalization less than that of the

largest 500 publicly-traded companies.

Although the Small Cap Fund is

registered under the Act, it does not

intend to make a public offering of its

shares, and has not registered its shares

under the Securities Act of 1933.

2. VKACAM will not charge any

advisory fee for managing the Small Cap

Fund, and there is no sales load or other

charges associated with distribution of

the Small Cap Fund’s shares. The Small

Cap Fund will bear the other expenses

it incurs, and such expenses thus will

be borne indirectly by the public Funds

that invest in the Small Cap Fund.

3. The Public Funds are open-end

management investment companies for

which Advisory Corp. or VKACAM

serves as investment companies for

which Advisory Corp. or VKACAM

serves as investment adviser with

investment discretion over the entire

portfolio. Advisory Corp. and VKACAM

are both wholly-owned subsidiaries of

Van Kampen American Capital, Inc. In

addition to the funds named in the

application, the Public Funds may

include any open-end management

investment company or portfolio thereof

for which Advisory Corp. or VKACAM

may in the future become investment