ML20238F662
| ML20238F662 | |
| Person / Time | |
|---|---|
| Site: | Beaver Valley |
| Issue date: | 09/14/1987 |
| From: | Doris Lewis DUQUESNE LIGHT CO., OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| Shared Package | |
| ML20238F529 | List: |
| References | |
| NUDOCS 8709160268 | |
| Download: ML20238F662 (15) | |
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September 14, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
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DUQUESNE LIGHT COMPANY, et al. ) Docket No. 50-412
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(Beaver Valley Power Station, )
Unit 2) )
MEMORANDUM REGARDING ANTITRUST REVIEWS I. Introduction On July 14, 1987, Duquesne Light Company (DL) filed, on be-half of Ohio Edison Company (OE), an Application for License Amendment and Approval in Connection with Sale and Leaseback Transactions by OE (the " Application"). The Application relates to certain sale and leaseback transactions proposed to be entered into by OE with respect to all or a portion of OE's 41.88% inter-est in the Beaver Valley Power Station (BVPS) Unit 2 and common facilities. In the Application, OE requests authority to enter into sale and leaseback transactions with equity investors who may include subsidiaries or affiliates of electric utilities. In this case, one of the potential equity investors is a non-utility affiliate of an electric utility.
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The sale and leaseback transactions proposed by OE are sub-stantially the same as those previously approved for the Palo Verde Nuclear Generating Station and for the Perry Nuclear Power Plant. As a matter of first impression, the initial Palo Verde transaction was the subject of NRC Policy Paper SECY-85-367 (Nov. 20, 1985) and Commission order dated December 12, 1985.1/
Thereafter, applications for approval of a number of similar transactions were reviewed and approved by the NRC Staff. See Application at 3-5 (describing these precedents).
In the Palg Verde sale and leaseback transactions, affili-ates or subsidiaries of electric utilities were also potential equity investors. See, e.g., Arizona Public Service Co., Docket No. STN-50-529,. Application in Respect of Sale and Leaseback Transactions by Public Service Company of New Mexico (Feb. 14, 1986) at 6, 17-18. There, the issue arose whether the potential participation of a utility, directly or indirectly, in the pro-posed sale and leaseback transactions, presented the need for submittal of the matter to the Attorney General for antitrust re-view and advice pursuant to section 105(c) of the Atomic Energy Act of 1954, as amended (the "Act").2/ After receiving from the 1/ Arizona Public Service Co. (Palo Verde Unit 1), Docket No.
STN-50-528, Commission Order (Dec. 12, 1985).
2/ 42 U.S.C. 5 2135(c) (1982).
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applicants a Memorandum in Respect of Antitrust Reviews (Feb. 26, 1986), the NRC Staff approved the transactions without further antitrust review.
Similarly, in the Perry sale and leaseback transactions, an f electric utility was identified as a potential equity investor.3/
The NRC Staff again approved the transactions without further an-i titrust review.
II. Issue Presented i
This memorandum again considers whether the potential par-ticipation of a utility affiliate, directly or indirectly, in the proposed sale and leaseback transactions requires the submittal of the matter to the Attorney General for antitrust review. This memorandum concludes that submittal to the Attorney General is not required. i section 105(c) of the Act establishes "a particularized re-gime for the consideration and accommodation of possible anti-trust concerns arising in connection with the licensing of .j nuclear power plants."4/ At the construction permit stage of the
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3/ Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit lli, Docket No. 50-440, Letter dated March 3, 1987.
4/ Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), CLI-77-13, 5 N.R.C. 1303 (1977).
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facility licensing process, a thorough antitrust review takes place. A "second narrower review"5/ occurs during the operating license application phase if, and only if, there have been "sig-nificant changes in the licensee's activities or proposed activi-ties"g/ subsequent to the first detailed review. No such changes occurred at BVPS Unit 2.7/
Subsequent to the issuance of an operating license for a i
nuclear power plant, such as BVPS Unit 2, no further antitrust evaluations ordinarily take place unless a license amendment is sought which is determined would result in "significant [ anti-trust] changes" to the licensed activities.8/ Three criteria de-fine the circumstances in which a change in licensed activities ;
is considered to be significant for antitrust purposes. Those criteria are whether the change (1) occurred since the previous, detailed antitrust review of the licensee (s); (2) is reasonably j attributable to the licensee (s); and (3) has antitrust 5/ Id. at 1312.
s/ Section 105(c)(2) of the Act, 42 U.S.C. 5 2135(c)(2); see South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Sta- .
tion, Unit No. 1), CLI-80-28, 11 N.R.C. 817, 823 (1980). I 7/ 52 Fed. Reg. 15,402 (1987).
8/ See 10 C.F.R. S 50.80(b); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-475, 7 N.R.C. 752, 755 n.7 (1978); South Carolina Electric & Gas Co. (Virgil C. Summer j Nuclear Station, Unit No. 1), CLI-81-14, 13 N.R.C. 862, 874 n.47 (1981).
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implications that would likely warrant some antitrust remedy.9/
This third criteria has been further explained as establishing that " changes would be considered 'significant' only when the i
competitive structure, as changed, would likely warrant and be susceptible to a greater than dg minimus license modifica-tion."10/ For antitrust review to be appropriate, the change i
must have more than a dg minimus anticompetitive effect, its sig-nificance must be reasonably apparent, and the change must be one likely to warrant Commission review.ll/
Here, the proposed sale and leaseback transaction will not have " antitrust implications that would likely warrant NRC (anti-trust] remedy." For the duration of the lease and unless and until the equity investors apply for and are made licensees in conformity with the NRC's creditor regulations, the equity inves- )
tors, even if they include utility affiliates, will have no right of possession or control of BVPS Unit 2. The entitlement to electricity generated by BVPS Unit 2 will be vested in OE.
In this respect, the transaction is no different from those previously approved for the Palo Verde plant without antitrust 9/ Summer, supra, CLI-80-28, 11 N.R.C. at 824; Summer, supra, CLI-81-14, 13 N.R.C. at 864 n.3, 872.
10/ Summer, supra, CLI-81-14, 13 N.R.C. at 864 n.3.
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11/ Id. at 872-73. '
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- review. In reviewing that transaction, the NRC' staff determined that where the investor owners do not acquire the right to elec-1 tric power generation at the facility, and such electricity will j
! continue to be distributed in the same manner as is now set forth in the operating agreement, "the transaction does not present any antitrust considerations not previously considered at the time of the license." SECY-85-367 at 9. The presence of utility affili-l ates among the equity investors makes no difference to the deter- ,
i mination, since those affiliates have no greater rights or enti- )
i t1ement than any other equity investor. They are functionally l indistinguishable. Indeed, from the regulatory perspective of j i
the NRC, OE's sale and leaseback transactions can be considered simply as the refinancing of capital, with equity investors akin to mortgagees. SECY-85-367 at 8, 9 n.6.
Prudential considerations further militate against antitrust review. In the absence of a change of the law as reflected in the Commission's December 12, 1985 Order and in the absence of further amendment to the BVPS Unit 2 license, neither the equity investors nor their trusten may become a licensee without compli-ance with the creditor regulations at 10 C.F.R. S 50.81. If this occurs at all, .i t is likely to be thirty years hence. To conduct at this time an antitrust review would be premature and unavailing in the performance of the Commission's responsibil-ities. The prospective licensees are unknown, the terms and f-I 1 . .-
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conditions under-which such. entities might apply to become licenseees are unknown, and the economic and regulatory. circum-stances that might' exist at that future date are unknown. On the
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I other hand, if an equity investor-seeks at some future date to-become'a licensee, an antitrust review could be conducted at that- :
juncture,12/ if necessary, to evaluate the actual terms and cir-cumstances of such action.
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III. Conclusion Neither the Atomic Energy Act nor the public interest re-quire an antitrust _ review of OE's proposed sale and leaseback transactions. To the contrary, the Act and NRC precedent indi-cate that the time for such a review is when an entity seeks for the first time to become a licensee. The public interest dic-tates that the Commission not divert its resources to review the 12/ NRC precedent in fact suggests that the appropriate time for antitrust review is when entities are made_ licensees. In Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2),
LBP-78-13, 7 N.R.C. 583 (1978), a Licensing Board considered an application to amend a construction permit to add two new owners, which in that case entailed the owners becoming regular licensees with commensurate rights, including entitlement to a generation share, and obligations for plant expenses and costs. Upon these facts, the Board concluded that with respect to these new owners, the application to amend the construction permit to include them as licensees constituted the new owners' "ini ial application for a construction permit" within the meaning of 2ection 105(c) and therefore triggered the antitrust review process. It bears re- i peating that with respect to OE's_ sale and :.easeback transac- !
tions, the equity investors are not now seeking to become licens-ees, and their initial application for licenses will not occur, t.
if ever, until termination of the lease.
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possibility that some. entity, as yet undetermined,-may in the fu-ture seek to become a licensee under terms and. conditions not now known; nor should the~ Commission impose unreasonable ~ impediments to-financial transactions that are important to the continued de-velopment'of energy resources and involve no change in competi-tive structure. The currcitt transactions involve no change in
.pl ant operat i on or i n &.he dist'ribution of electricity generated.
- OE will' remain a licensee subject to the conditions of the-license. For these reasons, DL and OE respectfully submit that the Application should be promptly granted.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
's - , ,
David R. Lewis Counsel for Applicants i
Dated: September 14, 1987 4
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WILMINGTON TRUST COMPANY 6 AFFIDAVI'1 0F U.S. CITIZENSHIP STATE OF DELAWARE )
) SS COUNTY OF NEW CASTLE)
I, Joseph M. Moran, of Hockessin, Delaware , being duly sworn, depose and say:
- 1. That I am a . Senior Vice President of Wilmington Trust Com pany , a banking corporatica j
organized and existing under the laws of the State of Delaware (hereinaf ter called the l
" Corporation") with of fices at Rodney Square North , Wilmington, Delaware 19890, in evidence of which incorporation a certified copy of the Certificate of Incorporation is filed herewith together with a certified copy of the corporate By-Laws;
- 2. That I am authorized by and in behal f of the Corporation to execute and deliver i
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this 'Af fidav it . o f U. S. Cit izenship -
- 3. 1hn the names of the President or other Chief Executite Of ficer, Vice President s ,
or other indivduals sto are authorized to act in the absence or disability of the President er ,
otntr Chief Executive Of ficer, the Chaivaan of the Board of Directors, and Directors of the
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A. x
,Corpration are as follows: ,
SOE TITLE DATE AND PLACE OF BIRTH 1
Berr.ard J. Taylor, II Chairman 6. Chief Executive Of ficer 11/10/25 Philadelphia, PA A. s huel Gray President & Chief Oper ating Of fic te 08/28/34 West Ches ter PA e -/Jos ph M. Morati Senior Vice Peesident & Secretary 07/23/29 Dentsville, MD Senio** Vice. President & Treasurer 12/11/31 Wilmington , DE ALak rd W.' Qui 1V '
05/18/26 New York, NY
\
Heg y F. Ac quae r n;. Senior Vit:e Pre sid ent l
, ',ed T. lCecala Senior Vice President 01/26/49 Trenton, NJ Donal'1 'A. Cot kt en Senior Vice President 04/21/37 Wilmington, DE Geo r g e *) . Craig: Senior Vice President 01/25/31 Wilmington , DE Robert Senior Vice President O!!02/49 Wilming ton, DE O Nathan\.V.A.'iayward ,'Harra Ill Senior Vice President 19/25/43 Boston, MA Frexis J. Acketmaa ice Pre sident
. 09/25/48 Wilming ton , DE V:ce President leS/31/31 Charles ton , WV
, Tohi! S', Stekit h Jr.
~ J. O.r i s'.o phe t ' i c l i Vice liasident 11/29/40 Hagerstown, M.D
- H. 99nley Boc,thuy, Jr. Vice hesident C8/21/37 Li t tle Roc k, AR l'<- Nod,C) Bur
- n am Vice Presider.: 06/27/46 Det roit , MI h lovi5 L . Chstte t Vice sresident- 08/27/47 i'pper Darby, PA Vice Presider : 34 / 0 1 /',7 Dayton, OH Mirwl B. (t a-k Coei 4. D enJaniel Vice Presidet 06/21/46 Mil ford , DE Nd$it P.i Closs 't'es Presicent 05/10/48 Kennett Square. ?A e'/.w d i,0. Cohen Vin PresiO:nt 10/04/48 Eastor . MD 10/22/38 Dany ille , PA
/rainain H. Cole Vic c hesikw 01/17/48 Wilming ton , DE Richara' l.. Conway Vice President O. Edward Crans ton , Jr. Vice Pre r.ident 06/10/46 Wilmington, DE l4y '
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- NAME< TITLE- DATE AND PLACE OF BIRTH m hark M. Devine Vice Presider,t 03/30/53 Passaic , NJ H louis'J. D'Onofrlo Vice President - _.09/17/44 . Wilming ton , DE
' Jssaph F. Dot'o '- Vice President - 06/23/43 Wilmington, DE l Robertf L. Duke , IV Vice ' Pre s ident . 10/27/52 Br yn Mawr , PA .
JW rron;C.'Engle Vice President 11/12/48 Wilmington, DE
- Arthur:C. Eppihimer,.Jr. Vice President' 08/14/48 .Cinc innat i ,: OH Michcel J. Teil Vice President 04/26/23 Philadelphia , PA John S. Carrett,'Jr.= Vice President 09/30/31 Wilmington , DE David S. Goodhue Vice President 02/25/45 - Oceanside , NY Ch rl e s F. Gumme y , Jr . Vice' President 02/04/41 Br yn Mawr , PA Charles H. Hac kman Vice President 08/17/27 We s t Ches t e r , PA
- Vice President. 03/27/44 Monrovia , Liberia
" ~.J.Enunatt R. Harmon
- Vice President 03/08/48 Walling ford ,' PA Stoddard Hayes , Jr .
J mas G..Headley, Jr. Vice President. 11/25/46- Cincinnati, CH George W. Helme, IV Vice President 02/22/$0 Philadelphia , PA :
Thosts - D. Henderer Vice President 07/15/38 Wilming ton ,' DE David Hillegas Vice President 03/26/37 Wilmington, DE
- e Richced J. Hobman Vice President 11/19/30 Yorkton , Saskatchewan Carl E. Hostetter Vice President 05/05/49 Lancaster, PA
' le wis B. Hym an , - Jr . Vice President 05/19/31 Florence, SC Francis B. .Jacobs , II Vice . President 02/12/42 Philadel phia , PA .
,Jocaph.M. Jacobs, Jr. Vice President 01/05/38 Wilmington, DE
-Jam:s V. Kelly Vice President 12/06/46 Washington, DC
. John H. . Kipp Vice President 05/31/43 Wilmington , DE' Robert J. Kisco Vice President 01/15/49 ' Trenton,.NJ Richard L. - Laird Vice President 07/30/29 Philadelphia , PA
. Gerald F. Layton Vice President 05/17/35 Frankford, DE Lario 'M. Marini Vice President 12/22/40 Wilmington, DE Robert A. Matarese Vice. President 08/1B/46 Wilmington, DE William JJ. . Mc Glothlin Vice President 12/07/33 Peach Creek, WV Grece E. '_ Messner Vice President 12/20/46 Mil ford , DE Michcel J. Monaco' Vice President 03/19/42 Mil ford , DE George W. Nauman Vice President 12/16/23 Ventor , NJ Robert . W. 'Oggenfuss Vice~ President 05/06/33 Bridgeport, CT Ral ph E. Pearce , Jr . Vice President 05/03/31 Long Branch, NY Wilmer B. Powell Vice President 05/09/34 Dilworthtown, PA Roger ' G. Reynold s Vice - Pre sident 08/l7/30 Wilmington, DE
' H. Calvert Richardson Vice President 05/13/38 Willard s , MD Jcmes R.' Robeson Vice President 05/27/26 Frostburg, MD Dana P. Robinson Vice President 10/31/47 New Yo ^, NY Fred C. Sears, II Vice President 02/01/42 Wilmi m en , DE James A. Seyde11 Vice President 12/18/33 Newar ,E Paul E. Shipley Vice President 12/18/29 Philadelphia , PA Richard B. Simon Vice President 01/22/30 Spring City, PA Allen E. Smith Vice President 09/15/28 West Che a t e r PA Andrew A. . Smith, Jr. Vice President 08/24/41 Birmingham, AL W. Lat imer Snowdon , Jr . Vice President 08/16/36 Wilmington, DE P. M. Snyd er ,' Jr . Vice President 06/24/43 Pittsburgh, PA 06/15/44 Wilmington, DE William B. Sowden , III Vice President W. Halsey Spruance Vice Pre s id ent 08/20/38 Wilmington. DE Warren S. Stone, III Vice President 06/13/39 Washington , DC Wil.liam H. Swartz Vice Pre s id ent 01/29/23 Summit , NJ
. And re w G. Te r res Vice President 05/13/41 Millville, NJ D2Vis H. Truax Vice President 09/22/33 Wilmington , DE Rita C. Turner Vice President 03/30/54 overbrook, PA Peter G. Weber , Jr . Vice President 12/28/39 Br oo kl yn , NY Wal ter H. Whit taker Vice President 07/11/29 Roc kv ille Ct r , NY r
NAME TITLE DATE AND PLACE OF BIRTH
~ ' Alb2rt 1. Willet t Vice President 03/09/43 Wilmington, DE Cicrk H. Woolley' ,Vice President 03/04/39 Wilmington, DE S fan P. Young Vice President 12/17/29 Charleston WV
- John ' P. Zebley, . III Vice President 08/19/41 Wilmington, DE Shirley W. Ackerman Assistant Vice President 05/06/32 Wilmington, DE Cloyton M. Albright, III. As sis t ant Vice President 09/21/53 Wilmington, DE Welter Barczewski Assistant - Vice President 06/18/23 Talle yv ille , . DE Dennis M. Barrowclough Assistant Vice President 02/20/47 Chester, PA John N. Behringer, Jr. Assistant Vice President 07/11/44 Wilmington, DE Scott C. Benner Assistant Vice President 11/22/58 Minneapells, MN Charles F. - Brown Assistant Vice President 10/28/53 Wilmington, DE J2en W. Byascae Assistant Vice President 10/07/38 Baltimore, MD
.N. Wayne Cannon Assistant Vice President 01/12/44 Mil ford , DE Leslie S. Carter Assistant Vice ' President 03/04/4 8 - Pittsburgh, PA Eric K. Cheung - Assistant Vice President 12/09/54 Hong Kong
' homaa P. Collins Assistant Vice President 07/11/52 Pittsburgh, PA .
David H. Conklin , II Assistant Vice President 02/07/47 Los Angeles , CA Cynthia L. Corliss Assistant Vice President 04/22/57 Philadelphia , PA Robe rt P. Cox Assistant Vice President 02/16/51 Woodbury, NJ Robert G. Cramer Assistant Vice President 09/21/41 Camden, NJ
. Guy - E. Cunningham Assistant Vice Presioent 02/25/48 Wilmington, DE Mary A. Delco11o As sist an t Vice President 05/09/35 Wilmington, DE Szmuel J. DiFerdinando Assistant Vice President 01/14/38 Wilmington, DE
- D;vid M. Ernst Assistant Vice President 07/17/52 Reading, PA James W. Ev ere t t Assistant Vice President 07/20/48 Wilming ton , DE Mary Lou Flood Assistant Vice President 08/08/35 Bronx, NY Anne E. Freebery Assistant Vice President 07/02/30 New Castle , DE Edward W. Garrison, Jr. Assistant Vice President 11/20/46 Bryn Mawr , PA J. Bruce Geary Assistant Vice President 04/03/45 Philadel phia , PA Daryl E. Gebhart Assistart Vice President 05/11/48 Wilmington, DE Edward F. Gr zybowski Assistant Vice President 08/16/33 Wilmington, DE Ruth L. Guess ford Assistant Vice President 03/04/27 Elkton, MD Holly A. Hall Assistant Vice President 09/22/46 Br yn Mawr , PA Roger E. Hall Assistant Vice President 02/15/44 Norfolk, VA Etta A. Harper Assistant Vice President 05/30/27 Wilming ton , DE George S. Harrington As sis t ant Vice President 07/04/33 Le we s , DE Philip F. Hickman Assistant Vice President 02/14/44 N. Wildwood , NJ Patricia H. High Assistant Vice President 01/25/46 Washington , DC Nancy H. James As si s t an t Vice President 11/12/39 Philadelphia , PA Paul . E. King sley Assistant Vice President 11/26/27 Franklin, PA Victoria P. Konetski As sist ant Vice President 02/12/49 Wilmington, DE Bomas P. Laskaris Assistant Vice President 03/25/39 Wilmington, DE William R. Law Assistant Vice President 08/02/38 Wilmington , DE Allan C. Lynch , Jr. Assistant Vice President 10/14/48 Wilmington, DE 1 Robin A. ' Lynch As s i e t ant Vice President , 09/18/54 Albany, NY {
Gav P. Mahanna Assistant Vice President 10/07/39 Nashville , TN i C13rde E. Mense , Jr. Assistant Vice President 04/04/50 Lancaster, PA Eric. B. Morrison Assistant Vice President 09/11/40 New York, NY ,
Victor H. Murray, Jr . As s i s t an t Vice President 05/22/39 Selbyville , DE {
'homas P, Neale As s i s t an t Vice President 08/19/50 Ft . Belvoir , VA l Arthur J. O' Hare Assistant Vice President 12/14/35 Brookl yn, NY !
William J. O' Leary Assistant Vice President 08/24/38 Niagara Fall s , 'O?
John N. Page , Jr . Assistant Vice President 01/22/38 Montclair, NJ William A. Patty, Jr. Assistant Vice President 04/24/36 Cambridge, MA Lawrence'J. Peart As sis t ant Vice President 08/07/39 Wilmington, DE William S. Pennell Assistant Vice President 05/20/34 Wilmington , DE l Willlam D. Pet t igrew Assistant Vice President 06/01/36 Br yn Mawr , PA j I
)
i NAME TITLE DATE AND PLACE OF BIRTH
'*W'. Scott Pic kard ' As si s t ant Vice President 03/02/38 Plainfield , ~ NJ Rosa Piwinski- ' Assistant Vice 1 President 02/08/27 Wap per s ford ,
Gernany Maryu Ann Rich Assistant Vice President 01/26/47 Wilmington , DE William T.:Saunders Assistant Vice President 12/09/49 Roanoke, VA E. Maxine Shade Assistant Vice President 10/15/31 Lucky , PA Frcnce C. Shelton As sis t ant Vice President 10/01/44 Sebring, FL W. Scott Simonton Assistant Vice President 04/09/53 Wilmington, DE John A. Sitek Assistant Vice President 05/17/48 Wilmington, DE
-Jemts T. Skelly, III. Assistant Vice President- 01/29/45 Louisville , KY Pcul Smoker ' Assistant Vic e ' Pre s id ent 11/28/38 Lancaster, PA Alexcnder P, Tait As sist ant Vice1P resident 09/27/22 Wilmington, DE Frcncis J. Taylor, Jr. Assistant Vice President 01/31/40 West CFest er , PA .
Roger P. Thompson Assistant Vice Presidcac 09/17/51 Wilmington, DE Cail W. Trench' Assistant Vice President 08/20/45 Wilmington, DE George W. Trivits Assistant Vice President 04/14/30 Stanton, DE' Barbara A. Ubert i As sist ant Vice President - 04/28/53 Philadelphia, PA P. C. Van Sant As sistant Vice President 08/13/27 Marsha11 ton, DE Jam:s A. Wad sworth As sis t ant Vice President 12/16/45 Toronto, Canada Robert R. Walsh Assistant Vice President 11/04/27 .Wilmington, DE W. Jcmes.Whittaker Assistant Vice President 06/04/45 Creenwood MA Richcrd K. ' Wilhide As sis t ant Vice President 07/22/50 Hagerstown, 'iD Robert A. Wimble Assistant Vice President 08/30/32 Wilmington, DE Jossph L. -Yacyshyn As sis t ant Vice President 08/17/51 Chester, PA William W. Young Assistant Vice President 05/29/43 Cleveland, OH Bernsrd J. Taylor, II Chairman of the Board & Director 11/10/25 Philadelphia, PA George P. Bissell, Jr. Honorary Chairman & Director 05/29/17 Wilmington, DE l Director David B. - Bolin 12/23/23 Heflin, LA Robert H. Bolling, Jr. Director- 06/29/26 Baltimore, MD John E. Burris . Director 08/05/20 Lincoln, DE Edwstd W. Cooch , Jr . Director 03/22/20 Wilmington, DE
' Chnries S. Crompton ,' Jr . Director 12/30/36 Wilmington, DE William R. Deele y Director 07/27/22 Mt. Vernon , OH Edward B. duPont Director 03/12/34 Wilmington, DE Irenee duPont , Jr. Director 01/08/20 Wilmington, DE Georg.e P. Edmond s Director 12/20/05 Boston, MA Robert C. Forney Director 03/13/27 Chicago, IL A. Samuel Gray Director 08/28/34 West Chester , PA Charles J. Harring ton Director 08/15/11 duPont , WA Barnard B. Is aac son Director 07/12/17 Brooklyn, NY Andrew B. Kirkpatrick Director 01/16/29 Ashville, NC W. Frederick Laird Director 07/15/19 London , OR Chsries B. Mc Coy Director 04/16/09 Gakland, CA Hugh E. Miller Director 07/04/35 Franklin, PA Joseph M, Moran Director 07/23/29 Dent sville , MD John R. Ryan Director 08/23/17 Duluth , MN Thomas P. Sweeney Director 09/26/36 Salt Lake City, UT M:ry Jornlin Theisen Director 01/25/27 Minneapolis, MN i
and that each of said individuals, except each individual, if any, whose name is followed by an asterisk (*), is a citizen of the United States by virtue of birth in the United States, birth abroad of U. S. citizen parents , by naturalization, by naturalization during minority through the naturalization of a parent , by marriage (if a woman) to a U. S. citizen prior to September 22, 1922, or as otherwise authorized by law, and that none of said individuals whose name is
- foll'oved.by en asterisk indicating citizenship of a country other then the United States, is
'thi President or.other Chief Executive Of ficer or Chairman of the Board of Directors or a Director of the Corporation;
- 4. That I have access to the stock books and records of the Corporation; that said stock .
l I books and records have been examined and disclose that , as of August 17, 1987 (a) tho corpo-rction had issued and outstanding 17,683,130 shares of comon stock, the only class or series of the stock of the corporation issued and outstanding, owned of record by 5,492 stockholders, L said number of stockholders' representing the ownership of the entire issued and outstanding
- stock of the Corporation, (b) that no stockholder owned of record as of said date five parcentum (5%) or more of the issued and outstanding Conanon Stock of the Corporation except l that Cede & Co. a nominee partnership utilized by Depository Trust Company, a corporation I organized and existing under the laws of the State of New York, on behalf of its customer I
~ brokarage firms and banks , owned of record but not beneficially in excess of '5% of the issued and outstanding shares of Comon Stock and that on the basis of data furnished to the Corporation by Depository Trust Company, arid customers of said Depository Trust Company, no single beneficial owner whose securities are registered in the name of Cede & Co. owned in i
l excess of 5% of the Common Stock of the Corporation, (c) that the registered addresses of 5,488 -
f owners of record of.17,676,870 shares of the issued and outstanding voting stock of the l Corporation are shown on the stock books and records of the Corporation as being within the United States , said 17,676,870 shares being ninety-nine and ninety-six one hundredths percentum (99.96%) of the total number of shares of said stock, and (d) that as of August 27, 1987, Siebel Capital Management Inc. , a California corporation *a'ood Island , 4th floor, 80 E.
Sir Francis Drake Boulevard, Larkspur, California, a registered investment advisor ("Siebel"), ,
1 owned beneficially for purposes of the Securities Exchange Act , 950,450 shares or 5.4% of the l
I~
issued and outstanding Comon Stock of the Corporation, and that the U.S. citizenship of Siebel for the purpose of coastwise trade is af firmed on the basis of the following data furnished to J the Corporation by Siebel: Siebel does not represent any single investor with respect to as much as five percentum (5%) of the Comon Stock of the Corporation, all of the officers and 3 directors of Siebel as of July 17, 1987 were citizens of the United States by virtue of birth
a
'in th2 Unitsd States, birth cbroed by United States citizen parents or as otherwise authorizad '
'by law and all the issued and outstanding stock of Siebel was _ owned of record by Equitee f l
l Fincncial Group, Inc ., a California corporation ("Equitec"); and that the U.S. Citizenship of _ l l
Equitee for the purpose of coastwise trade is af firmed o'n the basis of the following data furnished to the Corporation by Equitec : as of August 5, 1987 all of the officers and l
directors of Equitec were citizens of the United States by virtue of birth in the United States , birth abroad by United States citizen parents or as otherwise authorized by law, the registered addresses of owners of record of ninety-nine and ninety-three one hundredthe percentum (99.93%) of all of the issued and outstanding common stock of Equitec (the only outstanding class of stock) were shown on the stock books and records of Equitec as being within the United States , and no stockholder owned of record five percentum (5%) or more of the issued and outstanding stock of Equitec except as follows: (i) Marsden S. Cason, Chief Executive Of ficer of Equitec, and Kenneth E. Nitzberg, President of Equitec , citizens of the .
United States , each owned of record and beneficially in excess of five percentum (5%) of the j outstanding common stock of Equitec and (ii) Cede & Co., a nominee partnership utilized by Depository Trust Company, a corporation organized and existing under the laws of the State of Naw York, on behal f of its customer brokerage firms and banks , owned of record but not beneficially in excess of five percentum (5%) of the issued and outstanding common stock of Equitec , but no single beneficial owner whose securities are registered in the name of Cede &
Co. owned in excess of 5% of the issued and outstanding common stock of Equitec; and there have been no changes since August 27, 1987 in the foregoing data relating to Equitec , except for possible changes in stock ownership, however such changes have not caused the percentage of owners of record with United States registered addresses to fall below the requisite 95%;
- 5. There have been no changes since August 17, 1987, except for possible changes in stock ownership; however, such changes have not caused the percentage of stockholders with U.S.
registered addresses to fall below the requisite 95%.
- 6. That 75% of the interest in said Corporation as established by the data herein before
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set forth, is owned by citizens of the United States; that the title to 75% of the stock of said Corporatio3 is vested in citizens of the United States free from any trust or fiduciary
.t obligation in . favor of .any person not ' a citizen of- the United States; that such ' proportion of
't. th2 voting; powar of.'said Corporation is vested in citizens of the United States ; thet through no contract or., understanding is it so' arranged that more. than 25% of the voting ' power of said
'. corporation may be exercised, directly or indirectly, in behalf of any person who is not a' citizen of the United States; and that by no means whatsoever is any interest in said corpo .
ration in -excess of 25% conferred upon' or - permit ted to be exercised by any person who' is not a l citizen of. the United States; and l.
- 7. . Th a t affiant has carefully examined this af fidavit and asserts that all of.the state-ments .and representations contained herein are true to the best of his knowledge, in format ion and. belief.
DATED: August 31,_1987
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'seph M. Moran
- Senior Vice President Subscribed and sworn to before me, a Notary Public in and for the State and County aforesaid this thirty-first day of August , 1987.
AAk f.A Notarf Publi:
My commission expires: /0hD