SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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:
In the Matter of :
: CERTIFICATE
New Century Energies, Inc. :
: OF
File No. 70-8787 :
: NOTIFICATION
(Public Utility Holding Company :
Act of 1935) :
:
:
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This Certificate of Notification is filed by New Century Energies, Inc.
("NCE"), a Delaware corporation, in connection with the following transactions
proposed in NCE's Form U-1 Application-Declaration, as amended (the
"Application-Declaration"), and authorized by the order of the Securities and
Exchange Commission (the "Commission") dated August 1, 1997 (the "Order"), in
this file:
(i) the merger of PSCo Merger Corp. ("PSC Sub") with and into Public
Service Company of Colorado ("PSCo") and the merger of SPS Merger
Corp. ("SPS Sub") with and into Southwestern Public Service Company
("SPS"), and the resulting acquisition of ownership by NCE of all
issued and outstanding shares of common stock of PSCo and SPS;
(ii) the issuance of NCE Common Stock in connection with such mergers
pursuant to the Merger Agreement;
(iii)the acquisition by NCE of all of the issued and outstanding shares of
common stock of (a) NC Enterprises, Inc. ("NC Enterprises"), to serve
as a subholding company for certain of the NCE system's non-utility
companies and interests, (b) New Century Services, Inc. ("NC
Services"), to serve as the service company for the NCE system, (c)
Cheyenne Light, Fuel and Power Company ("Cheyenne"), a public utility
company and formerly a wholly-owned subsidiary of PSCo, and (d)
WestGas Interstate, Inc. ("WGI"), a former wholly-owned subsidiary of
PSCo engaged in the gas transportation business; and
(iv) the direct acquisition by NC Enterprises of the common stock of e
prime, inc., Quixx Corporation, Util-
<PAGE>
ity Engineering Corporation and Natural Fuels Corporation, and the
indirect acquisition by NC Enterprises of the subsidiaries of those
companies, pursuant to the realignment of certain of the NCE system's
non-utility companies and interests under NC Enterprises as a
subholding company.
Filed herewith are conformed copies of the final opinions of counsel
indexed as Exhibit F-2 to the Application-Declaration. Capitalized terms used
herein without definition have the meanings ascribed to them in the
Application-Declaration.
1. On August 1, 1997, articles of merger were duly and validly filed with
the Secretary of State of the State of Colorado, thereby merging PSC Sub with
and into PSCo, and articles of merger were duly and validly filed with the State
Corporation Commission of the State of New Mexico, thereby merging SPS Sub with
and into SPS. As a result of such mergers, PSCo and SPS became subsidiaries of
NCE.
2. On August 1, 1997, PSCo paid a dividend to NCE consisting of all issued
and outstanding shares of capital stock of Cheyenne and WestGas.
3. On August 1, 1997, each of PSCo and SPS paid a dividend to NCE
consisting of all shares of common stock of NC Services held by each of them,
constituting all the issued and outstanding shares of capital stock of NC
Services.
4. On August 1, 1997, ownership of the issued and outstanding shares of
capital stock of e prime, inc. and Natural Fuels Corporation, formerly
subsidiaries of PSCo, were transferred to NC Enterprises.
5. On August 1, 1997, the issued and outstading shares of capital stock of
Quixx Corporation and Utility Engineering Corporation were transferred by SPS to
NC Enterprises in return for promissory notes of NC Enterprises in amounts equal
to the fair value of the transferred subsidiaries.
6. Upon the consummation of the mergers of PSC Sub into PSCo and SPS Sub
into SPS on August 1, 1997, in accordance with the Merger Agreement, each issued
and outstanding share of PSCo Common Stock was converted into the right to
receive one share of NCE Common Stock, and each issued and outstanding share of
SPS Common Stock was converted into the right to receive .95 of one share of NCE
Common Stock.
7. On August 1, 1997, NC Services entered into individual service
agreements (in the form of Exhibits B-2.1, B-
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2.2 and B-3 to the Application-Declaration) with NCE and various of its direct
and indirect subsidiaries.
8. The transactions described in paragraphs 1 through 7 have been carried
out in accordance with the terms and conditions of, and for the purposes
requested in, the Application-Declaration, and in accordance with the terms and
conditions of the Order.
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S I G N A T U R E
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, as amended, the undersigned company has duly caused this document to be
signed on its behalf by the undersigned thereunto duly authorized.
New Century Energies, Inc.
By: /s/ Richard C. Kelly
--------------------------
Richard C. Kelly
Senior Vice President-
Finance, Treasurer and
Chief Financial Officer
Dated: August 11, 1997
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<PAGE>
EXHIBIT INDEX
Exhibit Transmission
Number Exhibit Method
1 Past-Tense Opinion of Patricia T. Smith Electronic
(Exhibit F-2 to the Application-Declaration)
2 Past-Tense Opinion of Cahill Gordon & Electronic
Reindel (Exhibit F-2 to the
Application-Declaration)
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EXHIBIT F-2
Public Service Company of Colorado
1225 Seventeenth Street
Denver, Colorado 80202
August 11, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: New Century Energies, Inc.
Form U-1 Application-Declaration
(File No. 70-8787)
Dear Sirs:
I refer to the Form U-1 Application-Declaration, as amended (the
"Application"), under the Public Utility Holding Company Act of 1935, as amended
(the "Act"), filed with the Securities and Exchange Commission (the
"Commission") by New Century Energies, Inc. ("NCE"), a Delaware corporation.
Capitalized terms used in this letter without definition have the meanings
ascribed to such terms in the Application.
The Application sought authorization and approval for a number of
transactions, including:
(i) the acquisition by NCE of all of the issued and outstanding common
stock of Public Service Company of Colorado ("PSCo") by means of the merger
of PSCo and PSCo Merger Corp., of Southwestern Public Service Company
("SPS") by means of the merger of SPS and SPS Merger Corp., of Cheyenne
Light, Fuel and Power Company ("Cheyenne") by the declaration of a dividend
of all the outstanding common stock of Cheyenne by PSCo to NCE, of PS
Colorado Credit Corporation ("PSCCC") by declaration of a dividend of all
PSCCC's outstanding common stock by PSCo to NCE and of West Gas Interstate,
Inc. ("WGI") by the declaration of a dividend of all WGI's outstanding
common stock by PSCo to NCE;
(ii) the establishment by NCE of a new subsidiary, New Century
Services, Inc. ("NC Services"), the Utility Service Agreement and the
Non-Utility Service Agreement as
<PAGE>
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a basis for NC Services to comply with Section 13 of the Act and the
Commission's rules thereunder;
(iii) the establishment by NCE of a new subsidiary, NC Enterprises,
Inc. ("NC Enterprises"), to serve as a holding company for certain of the
NCE system's non-utility interests, and the acquisition by NC Enterprises
of the stock and other voting equity of such non-utility interests
including (a) certain subsidiaries of PSCo by the declaration of a dividend
of their stock by PSCo to NCE and a subsequent capital contribution by NCE
to NC Enterprises and (b) all the subsidiaries of SPS through the sale by
SPS of all of their outstanding common stock to NC Enterprises in exchange
for debt; and
(iv) the issuance of NCE Common Stock to the shareholders of PSCo and
SPS in connection with the mergers described in clause (i) above
((i) through (iv) collectively, the "Transactions").
I have acted as counsel for NCE and PSCo in connection with the Application
and, as such counsel, I am familiar with the corporate proceedings taken by NCE,
PSCo, PSCo Merger Corp., NC Services and NC Enterprises in connection with the
Transactions as described in the Application.
I am familiar with or have reviewed those corporate records of NCE, PSCo,
PSCo Merger Corp., NC Services and NC Enterprises, certificates of public
officials, certificates of officers and representatives of NCE, PSCo, PSCo
Merger Corp., NC Services and NC Enterprises, and other documents as I have
deemed necessary to examine as a basis for the opinions hereinafter expressed.
In such review, I have assumed the genuineness of all signatures and the
authenticity of all documents submitted to me as originals and the conformity
with the originals of all documents submitted to me as copies. As to various
questions of fact material to such opinions I have, when relevant facts were not
independently established, relied upon certificates of officers of NCE, PSCo,
PSCo Merger Corp., NC Services and NC Enterprises and other appropriate persons
and statements contained in the Application and the exhibits thereto.
Based upon the foregoing and having regard to legal considerations which I
deem relevant, I am of the opinion that:
<PAGE>
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1. The laws of the states of Colorado and Wyoming applicable to the
proposed Transactions will have been complied with.
2. Each of NCE, NC Services and NC Enterprises is validly organized
and duly existing under the laws of the State of Delaware; PSCo is validly
organized and duly existing under the laws of the State of Colorado;
Cheyenne is validly organized and duly existing under the laws of the State
of Wyoming; PSCo Merger Corp. wasfollowing the validly organized and duly
existing under the laws of the State of Colorado and has been merged into
PSCo; and each non-utility company whose securities were acquired by NCE or
NC Enterprises from PSCo or its subsidiaries is validly organized and duly
existing under the laws of the respective state of incorporation.
3. The shares of NCE Common Stock issued in connection with the
proposed Transactions have been validly issued and are fully paid and
nonassessable, and the holders thereof are entitled to the rights and
privileges appertaining thereto set forth in the Restated Certificate of
Incorporation of NCE. The shares of common stock of PSCo issued to NCE in
connection with the merger of PSCo Merger Corp. with and into PSCo have
been validly issued and are fully paid and nonassessable, and NCE, as the
holder thereof, is entitled to the rights and privileges appertaining
thereto set forth in the Certificate of Incorporation of PSCo. The shares
of common stock of NC Enterprises and NC Services issued to NCE in
connection with the establishment of NC Enterprises and NC Services as
subsidiaries of NCE, respectively, have been validly issued and are fully
paid and nonassessable, and NCE, as the holder thereof, is entitled to the
rights and privileges appertaining thereto set forth in the instrument of
incorporation of each of NC Enterprises and NC Services. The shares of
common stock acquired by NC Enterprises from PSCo or its subsidiaries as a
holding company for certain non-utility subsidiary companies of the NCE
System have been validly issued and are fully paid and nonassessable, and
NC Enterprises or NCE, as the case may be, as the respective holders
thereof, are entitled to the rights and privileges appertaining thereto set
forth in the respective charters and other governing documents of such
companies.
4. NCE has legally acquired (a) the shares of common stock of PSCo
that were issued to NCE in connection
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with the merger of PSCo Merger Corp. with and into PSCo, (b) the shares of
common stock of Cheyenne by means of a dividend by PSCo of all of the stock
of Cheyenne to NCE, (c) the shares of stock of West Gas Interstate, Inc. by
means of a dividend by PSCo of all of its stock to NCE, and (d) the shares
of NC Enterprises and NC Services that were issued to NCE in connection
with the organization of NC Enterprises and NC Services, as the case may
be. NC Enterprises has legally acquired the shares of stock of the
subsidiary companies of PSCo or its subsidiaries for which it will serve as
a holding company.
5. The consummation of the proposed Transactions will not violate the
legal rights of the holders of any securities issued by NCE, NC Services,
NC Enterprises, or PSCo or its subsidiaries.
6. The Transactions have been carried out in accordance with the
Application.
I have acted as counsel for NCE and PSCo in connection with the Application
and, accordingly, this opinion is limited to actions taken by NCE, PSCo (and its
subsidiaries prior to the Transactions), PSCo Merger Corp., NC Services, and NC
Enterprises in connection with the Transactions as described in the Application.
With respect to compliance with all other applicable state laws, the corporate
proceedings of any other parties to the Transactions, including the issuance,
sale, or acquisition of securities by such parties, or the absence of the
violation of the legal rights of the holders of securities of such parties, I
refer tot he opinion of Cahill Gordon & Reindel filed concurrently herewith.
I hereby consent to the use of this opinion as an exhibit to the
Application.
Very truly yours,
Patricia T. Smith
EXHIBIT F-2
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
August 11, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: New Century Energies, Inc.
Form U-1 Application-Declaration
(File No. 70-8787)
Dear Sirs:
We refer to the Form U-1 Application-Declaration, as amended (the
"Application"), under the Public Utility Holding Company Act of 1935, as amended
(the "Act"), filed with the Securities and Exchange Commission (the
"Commission") by New Century Energies, Inc. ("NCE"), a Delaware corporation.
Capitalized terms used in this letter without definition have the meanings
ascribed to such terms in the Application.
The Application sought authorization and approval for a number of
transactions, including:
(i) the acquisition by NCE of all of the issued and outstanding common
stock of Public Service Company of Colorado ("PSCo") by means of the merger
of PSCo and PSCo Merger Corp., of Southwestern Public Service Company
("SPS) by means of the merger of SPS and SPS Merger Corp., of Cheyenne
Light, Fuel and Power Company ("Cheyenne") by the declaration of a dividend
of all the outstanding common stock of Cheyenne by PSCo to NCE, of PS
Colorado Credit Corporation ("PSCCC") by the declaration of a dividend of
all PSCCC's outstanding common stock by PSCo to NCE and of West Gas
Interstate, Inc. ("WGI") by the declaration of a dividend of all WGI's
outstanding common stock by PSCo to NCE;
(ii) the acquisition by NCE of all of the issued and outstanding
common stock of New Century Services, Inc. ("NC Services"), the Utility
Service Agreement and the Non-Utility Service Agreement as a basis for NC
Services
<PAGE>
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to comply with Section 13 of the Act and the Commission's rules thereunder;
(iii) the establishment by NCE of a new subsidiary, NC Enterprises,
Inc. ("NC Enterprises"), to serve as a holding company for certain of the
NCE system's non-utility interests, and the acquisition by NC Enterprises
of the stock and other voting equity of such non-utility interests
including (a) certain subsidiaries of PSCo by the declaration of a dividend
of their stock by PSCo to NCE and a subsequent capital contribution by NCE
to NC Enterprises and (b) all the subsidiaries of SPS through the sale by
SPS of all of their outstanding common stock to NC Enterprises in exchange
for debt; and
(iv) the issuance of NCE Common Stock to the shareholders of PSCo and
SPS in connection with the mergers described in clause (i) above;
((i) through (iv) collectively, the "Transactions").
We have acted as special counsel for NCE and SPS in connection with the
Application and, as such counsel, we are familiar with the corporate proceedings
taken by NCE, SPS, SPS Merger Corp., NC Services and NC Enterprises in
connection with the Transactions as described in the Application.
We have examined originals, or copies certified to our satisfaction, of
such corporate records of NCE, SPS, SPS Merger Corp., NC Services and NC
Enterprises, certificates of public officials, certificates of officers and
representatives of NCE, SPS, SPS Merger Corp., NC Services and NC Enterprises,
and other documents as we have deemed necessary to examine as a basis for the
opinions hereinafter expressed. In such examination we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity with the originals of all documents submitted
to us as copies. As to various questions of fact material to such opinions we
have, when relevant facts were not independently established, relied upon
certificates of officers of NCE, SPS, SPS Merger Corp., NC Services and NC
Enterprises and other appropriate persons and statements contained in the
Application and the exhibits thereto.
Based upon the foregoing and having regard to legal considerations which we
deem relevant, we are of the opinion that:
<PAGE>
-3-
1. The laws of the states of New Mexico, Texas and Kansas applicable
to the proposed Transactions have been complied with.
2. Each of NCE, NC Services and NC Enterprises is validly organized
and duly existing under the laws of the State of Delaware; SPS is validly
organized and duly existing under the laws of the State of New Mexico; SPS
Merger Corp. was validly organized and duly existing under the laws of the
State of New Mexico and has been merged into SPS; and each non-utility
company whose securities were acquired by NC Enterprises from SPS is
validly organized and duly existing under the laws of their respective
states of incorporation.
3. The shares of NCE Common Stock issued in connection with the
proposed Transactions have been validly issued and are fully paid and
nonassessable, and the holders thereof are entitled to the rights and
privileges appertaining thereto set forth in the Restated Certificate of
Incorporation of NCE. The shares of common stock of SPS issued to NCE in
connection with the merger of SPS Merger Corp. with and into SPS have been
validly issued and are fully paid and nonassessable, and NCE, as the holder
thereof, is entitled to the rights and privileges appertaining thereto set
forth in the Restated Articles of Incorporation of SPS. The shares of
common stock of NC Enterprises and NC Services issued to NCE in connection
with the establishment of NC Enterprises and NC Services as subsidiaries of
NCE, respectively, have been validly issued and are fully paid and
nonassessable, and NCE, as the holder thereof, is entitled to the rights
and privileges appertaining thereto set forth in the instrument of
incorporation of each of NC Enterprises and NC Services. The shares of
common stock acquired by NC Enterprises from SPS as a holding company for
certain non-utility subsidiary companies of the NCE system have been
validly issued and are fully paid and nonassessable, and NC Enterprises, as
the holder thereof, is entitled to the rights and privileges appertaining
thereto set forth in the respective charters and other governing documents
of such companies.
4. NCE has legally acquired (a) the shares of common stock of SPS that
were issued to NCE in connection with the merger of SPS Merger Corp. with
and into SPS, and (b) the shares of NC Enterprises and NC Services that
were issued to NCE in connection with the Transactions. NC Enterprises has
legally acquired the shares of stock of the
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subsidiary companies of SPS for which it serves as a holding company.
5. The consummation of the proposed Transactions will not violate the
legal rights of the holders of any securities issued by NCE, NC Services,
NC Enterprises or SPS or its subsidiaries.
6. The Transactions have been carried out in accordance with the
Application.
We have acted as special counsel for NCE and SPS in connection with the
Application and, accordingly, this opinion is limited to actions taken by NCE,
SPS (and its subsidiaries prior to the Transactions), SPS Merger Corp., NC
Services and NC Enterprises in connection with the Transactions as described in
the Application. With respect to compliance with all other applicable state
laws, the corporate proceedings of any other parties to the Transactions,
including the issuance, sale or acquisition of securities by such parties, or
the absence of the violation of the legal rights of the holders of securities of
such parties, we refer to the opinion of Patricia T. Smith filed concurrently
herewith.
We hereby consent to the use of this opinion as an exhibit to the
Application.
Very truly yours,
Cahill Gordon & Reindel
