SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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In the Matter of :
CERTIFICATE
New Century Energies, Inc. :
OF
File No. 70-9005 :
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 its Form U-1
Application/Declaration (File No. 70-9005), as amended, filed under the Public
Utility Holding Company Act of 1935, as amended (the "Act"), requesting
authority, among other things, to implement a stockholders rights plan (the
"Plan") and enter into a related Rights Agreement between NCE and The Bank of
New York, as Agent, dated as of August 1, 1997 (the "Agreement"). Pursuant to
the Plan, the board of directors of NCE declared a dividend distribution of one
right ("Right") for each outstanding share of common stock, $1.00 par value per
share, of NCE ("Common Stock") to stockholders of record at the close of
business on July 31, 1997. In addition, each holder of a share of Common Stock
issued after the record date is similarly entitled to receive one Right for each
such share. Each Right initially (i) entitles the holder to purchase from NCE
one one-hundredth of a share of Series A Junior Participating Preferred Stock
(the "Preferred Stock") at a price of $100, subject to adjustment, (ii) is
evidenced by the certificates for shares of Common Stock and (iii) is only
transferable with the Common Stock. A certificate of designation setting forth
the voting power, designation, preferences, rights and qualifications of the
Preferred Stock was filed in Delaware on August 1, 1997.
The Rights Agreement, as executed, is incorporated as an Exhibit hereto.
The foregoing transactions as described above and in the
Application-Declaration have been carried out in accordance with the terms and
conditions of and for the purposes represented by the Application-Declaration,
and the Order issued by the Securities and Exchange Commission with respect
thereto on August 1, 1997.
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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 8, 1997
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EXHIBIT INDEX
Exhibit Transmission
Number Exhibit Method
1 Past-Tense Opinion of Counsel (Exhibit F-2 Electronic
to the Application-Declaration)
2 Rights Agreement between NCE and The Bank of By Reference
New York dated as of August 1, 1997 which is
filed as an Exhibit to NCE's Current Report
on Form 8-K dated August 1, 1997 (File
No. 1-12927) and incorporated herein by
reference
August 8, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: New Century Energies, Inc.
SEC File Number 70-9005
Dear Sirs:
We have acted as counsel for New Century Energies, Inc., a Delaware
corporation ("NCE"), in connection with its Form U-1 Application/Declaration
(File No. 70-9005), as amended ("Declaration"), filed with the Securities and
Exchange Commission ("SEC") with respect to the proposed transactions described
therein ("Transactions"). In the Declaration authority was requested for NCE to
implement a stockholder rights plan ("Plan") and to enter a related Rights
Agreement ("Rights Agreement") with The Bank of New York, as agent. An Order was
issued by the Commission with respect to the Transactions on August 1, 1997.
Pursuant to the Plan, the board of directors of NCE declared a dividend
distribution of one right ("Right") for each outstanding share of common stock,
$1.00 par value per share, of NCE ("Common Stock") to stockholders of record at
the close of business on July 31, 1997. In addition, each holder of a share of
Common Stock issued after the record date is similarly entitled to receive one
Right for each such share. Each Right initially (i) entitles the holder to
purchase from NCE one one-hundredth of a share of Series A Junior Participating
Preferred Stock ("Preferred Stock") at a price of $100, subject to adjustment,
(ii) is evidenced by the certificates for
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shares of Common Stock and (iii) is only transferable with the Common Stock. A
certificate of designation setting forth the voting power, designation,
preferences, rights and qualifications of the Preferred Stock ("Certificate of
Designation") was filed in Delaware on August 1, 1997.
Separate certificates evidencing the Rights would be issued to such holders
of Common Stock a specified time after (i) a person or affiliated group acquires
the ownership of 10% or more of the voting power of the outstanding voting
securities of NCE or (ii) the announcement of a tender offer or exchange offer
(incipient or already begun) which would result in a person owning 10% or more
of such voting power. Once a person obtains beneficial ownership of 10% or more
of the voting power of the outstanding voting securities of NCE, the holder of a
Right (except such 10% or more holder or its successors and assigns) would be
able to receive, upon exercise, Common Stock or other assets having a value
equal to two times the purchase price of the Right then in effect.
Alternatively, the NCE board has the option to exchange the outstanding Rights
for shares of Common Stock at an exchange ratio of one share of Common Stock per
Right. The terms and conditions of the Plan are as described in more detail in
the Declaration.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of NCE
and such other documents, certificates and corporate or other records as we have
deemed necessary or appropriate as a basis for the opinions set forth herein. In
our examination, we have assumed the genuineness of all signatures, the legal
capacity of all persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of documents submitted to us as
certified or photostatic copies and the authenticity of the originals of such
copies.
Based on the foregoing, and subject to the assumptions and conditions set
forth herein, and having regard to legal considerations which we deem relevant,
we are of the opinion that:
1 . No state commission has jurisdiction over the Transactions;
2 . NCE is validly organized and duly existing;
3 . The Rights issued to holders of record on July 31, 1997 have been,
and Rights thereafter issued in accordance with the Rights Agreement in
connection with subsequent issuances of newly authorized Common Stock will
be, validly issued and the holders of the Rights will be entitled to the
rights and privileges appertaining thereto set forth in the Rights
Agreement;
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4 . The shares of Preferred Stock when issued pursuant to the Plan
will be validly issued, fully paid and nonassessable, and the holders of
such shares will be entitled to the rights and privileges appertaining
thereto set forth in the certificate of incorporation of NCE, as amended by
the Certificate of Designation;
5 . The shares of Common Stock, when issued pursuant to the Plan will
be validly issued, fully paid and nonassessable, and the holders of such
shares will be entitled to the rights and privileges appertaining thereto
set forth in the certificate of incorporation of NCE;
6 . All state laws applicable to the Transactions have been complied
with; however, we express no opinion as to need to comply with state blue
sky laws;
7 . The consummation of the Transactions will not violate the legal
rights of the holders of any securities issued by NCE or any associate
company thereof;
8 . The Transactions have been carried out in accordance with the
Declaration.
We hereby consent to the use of this opinion in connection with the
Declaration.
Very truly yours,
/s/ Cahill Gordon & Reindel
