As filed with the Securities and Exchange Commission on November 17, 1997
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
NEW CENTURY ENERGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-1334327
(State of Incorporation) (IRS Employer Identification No.)
1225 17th Street
Denver, Colorado 80202
(303) 571-7511
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Richard C. Kelly
Executive Vice President and Chief Financial Officer
New Century Energies, Inc.
1225 17th Street
Denver, Colorado 80202
(303) 571-7511
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copies to:
Gary W. Wolf, Esq.
Cahill Gordon & Reindel
Eighty Pine Street
New York, NY 10005-1702
(212) 701-3000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ______
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Each Class of Amount to Be Proposed Maximum Proposed Maximum Aggregate Amount of Registration
Securities to Be Registered Registered Offering Price Per Share(1) Offering Price(1) Fee (1)
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<S> <C> <C> <C> <C>
Common Stock ($1 par value) 9,000,000 shares $42.3125 $380,812,500 $115,398
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Preferred Stock Purchase
Rights(2) 9,000,000 N/A N/A N/A
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</TABLE>
(1) The proposed maximum offering price per share and in the aggregate have
been estimated solely for the purposes of computing the registration fee.
Pursuant to Rule 457(c), the registration fee has been calculated based on
the average of the high and low prices for the Common Stock of New Century
Energies, Inc. on November 10 , 1997, as reported on the New York Stock
Exchange Composite Tape.
(2) Each share of Common Stock will have associated with it one right to
purchase one one-hundredth of a share of the Company's preferred stock at a
stipulated price in certain circumstances. No separate consideration will
be received for the Preferred Stock Purchase Rights.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
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<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 17, 1997
PROSPECTUS
9,000,000 Shares
COMMON STOCK
(par value $1.00 per share)
NEW CENTURY ENERGIES, INC.
----------
New Century Energies, Inc. (the "Company") intends to offer from time to
time up to 9,000,000 shares of its Common Stock, with the par value of one
dollar ($1.00) per share (the "Common Stock"). The Common Stock will be issued
in amounts, at prices and on terms to be determined at the time or times of
sale. Each share of Common Stock, including the shares offered hereby, has
associated with it one right to purchase one-hundredth of a share of the
Company's preferred stock at a stipulated price in certain circumstances
relating to changes in ownership of the Company under the Company's rights
agreement.
For each offering of the Common Stock for which this Prospectus is being
delivered, there will be an accompanying Prospectus Supplement (each, a
"Prospectus Supplement") that will set forth the initial public offering price
and the terms of offering of such Common Stock. The Common Stock may be sold by
the Company through underwriters or dealers, directly by the Company or through
agents for offering pursuant to the terms fixed at the time of sale. See "Plan
Of Distribution" herein.
The Common Stock is traded on the New York Stock Exchange ("NYSE") under
the NYSE symbol "NCE." The last reported sales price of the Common Stock as
reported by the NYSE Composite Tape on November 13, 1997 was $43-5/8 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
---------------
The date of this Prospectus is , 1997.
<PAGE>
AVAILABLE INFORMATION
New Century Energies, Inc. is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files with the Securities and Exchange Commission ("SEC") reports,
proxy statements, and other information, which are available for inspection and
copying at the public reference facilities maintained by the SEC at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the SEC's Regional Offices at 7
World Trade Center, Suite 1300, New York, New York 10048, and at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. (The Commission maintains a
site on the World Wide Web containing reports, proxy materials, information
statements and other items. The address is http://www.sec.gov.) Copies of such
material can be obtained from the SEC's Public Reference Room, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Copies of such material also
can be inspected at the office of the New York Stock Exchange, Inc. (the
"NYSE"), 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner of shares of the Company to whom a copy of this
Prospectus has been delivered, upon the written or oral request of such person,
a copy (without exhibits, except those specifically incorporated by reference)
of any and all of the documents referred to below which have been or may be
incorporated in this Prospectus by reference. Requests for such documents should
be directed to Corporate Secretary, New Century Energies, Inc., 1225 17th
Street, Denver, Colorado 80202 (Tel: (303) 571-7511).
The following documents, previously filed with the SEC pursuant to the
Exchange Act, are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996 (File No. 33-64951);
2. The description of the Company's Common Stock contained in the
Registration Statement on Form 8-B dated April 24, 1997 (as amended by Form
8-B/A dated May 9, 1997), incorporated by reference from the Joint Proxy
Statement/Prospectus and Registration Statement on Form S-4 of the Company
(File No. 33-64951);
3. The description of the preferred stock purchase rights associated
with each share of Common Stock contained in the Registration Statement on
Form 8-A dated June 23, 1997 of the Company;
4. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997 (File No. 1-12927);
5. The Company's Current Reports on Form 8-K dated July 2, 1997 and
August 1, 1997 (two reports dated August 1, one reporting consummation of
the Merger (as defined herein) and containing supplemental financial
statements and the other reporting the effectiveness of the Company's
rights agreement);
6. Public Service Company of Colorado's Annual Report on Form 10-K and
10-K/A for the year ended December 31, 1996 (File No. 1-3280);
7. Southwestern Public Service Company's Annual Report on Form 10-K
for the twelve months ended August 31, 1996 (File No. 1-3789);
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<PAGE>
8. Southwestern Public Service Company's Transition Report on Form
10-K for the transition period from September 1, 1996 to December 31, 1996
(File No. 1-3789);
9. Public Service Company of Colorado's Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1997, June 30, 1997 and September 30, 1997
(File No. 1-3280);
10. Southwestern Public Service Company's Quarterly Reports on Form
10-Q for the quarters ended November 30, 1996, February 28, 1997, March 31,
1997, June 30, 1997 and September 30, 1997 (File No. 1-3789);
11. Public Service Company of Colorado's Current Reports on Form 8-K
dated February 24, 1997, April 1, 1997 (as amended by Form 8-K/A filed June
13, 1997) and July 2, 1997 (two reports dated July 2) (File No. 1-3280);
and
12. Southwestern Public Service Company's Current Reports on Form 8-K
dated February 7, 1997, February 24, 1997, April 22, 1997 and June 30, 1997
(File No. 1-3789).
All documents filed by the Company with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering of the securities offered hereby, shall be deemed to
be incorporated by reference herein and to be part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in a Prospectus Supplement or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY
The Company, a Delaware corporation formed on August 21, 1995, is a
registered public utility holding company under the Public Utility Holding
Company Act of 1935, as amended. The Company, Public Service Company of Colorado
("PSCo") and Southwestern Public Service Company ("SPS") entered into an
Agreement and Plan of Reorganization dated August 22, 1995, as amended December
8, 1995, providing for a business combination as peer firms involving PSCo and
SPS in a "merger of equals" transaction (the "Merger"). The Merger became
effective on August 1, 1997. As a result of the Merger, the Company owns all of
the outstanding shares of common stock of three public utility companies, PSCo,
SPS and Cheyenne Light, Fuel and Power Company. The Company also owns several
non-utility subsidiaries. The principal executive offices of the Company are
located at 1225 17th Street, Denver, Colorado 80202.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Common Stock for
general corporate purposes, including to retire debt and to make capital
contributions to its subsidiaries. If the Company uses any proceeds to make a
capital contribution to a subsidiary, such subsidiary will use such proceeds to
retire debt and for general corporate purposes.
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<PAGE>
PRICE RANGE OF COMMON STOCK AND
DIVIDEND INFORMATION
Since the Merger, the shares of Common Stock of the Company have been
traded on the NYSE under the symbol "NCE". The following table sets forth the
reported high and low sale prices for the Common Stock for the periods
indicated.
Period High Low
1997
Third Quarter (from August 4, 1997)... $43-1/4 $39
Fourth Quarter (to November 13, 1997)... $43-5/8 $40-1/4
The last reported sale price for the Common Stock on the NYSE on November
13, 1997 was $43-5/8 per share.
During the third quarter of 1997, the Board of Directors of the Company
approved a $0.58 per share dividend on the Common Stock payable to shareholders
on November 15, 1997. The Company's common stock dividend level is dependent
upon the Company's results of operations, financial position, cash flows and
other factors. The Board of Directors of the Company will continue to evaluate
the common stock dividend on a quarterly basis.
PLAN OF DISTRIBUTION
The Company may sell the Common Stock in any of three ways: (i) directly to
one or more purchasers; (ii) through agents; or (iii) through underwriters or
dealers. The Prospectus Supplement relating to each offering of Common Stock
will set forth the terms of the offering of such Common Stock, including the
name or names of any such agents, underwriters or dealers, the purchase price of
such Common Stock and the net proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters' compensation,
the initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in any sale of Common Stock, such Common Stock
will be acquired by such underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Such Common Stock may be offered to the public either
through underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Unless otherwise set forth in the Prospectus
Supplement relating to a sale of Common Stock, the obligations of any
underwriter or underwriters to purchase such Common Stock will be subject to
certain conditions precedent and such underwriter or underwriters will be
obligated to purchase all of such Common Stock if any shares are purchased,
except that, in certain cases involving a default by one or more underwriters,
less than all of such Common Stock may be purchased. Only underwriters named in
a Prospectus Supplement are deemed to be underwriters in connection with the
Common Stock offered thereby.
If underwriters are used in any sale of Common Stock, the purchase
agreement in connection with such sale may provide for an option on the part of
the underwriters to purchase additional shares of such Common Stock within
thirty days of the execution of such purchase agreement, which option may be
exercised solely to cover overallotments. Any such overallotment option will be
disclosed in the Prospectus Supplement in connection with the Common Stock
offered thereby.
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<PAGE>
If an agent of the Company is used in any sale of Common Stock, such agent
will be named and any commission payable by the Company to such agent will be
set forth in the Prospectus Supplement relating to such Common Stock. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best effort basis for the period of its appointment.
The Common Stock offered hereby will be listed on the New York Stock
Exchange.
Any underwriters, dealers or agents participating in the distribution of
the Securities may be deemed to be underwriters, and any discount or commissions
received by them on the sale or resale of Securities may be deemed to be
underwriting discounts and commissions, under the Securities Act of 1933, as
amended (the "Securities Act"). Agents, underwriters and dealers may be entitled
under agreements entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act.
Agents and underwriters may be customers of, engaged in transactions with, or
perform services for, the Company or its affiliates in the ordinary course of
business.
LEGAL OPINIONS
Certain legal matters in connection with the shares of Common Stock offered
hereby are being passed upon for the Company by Cahill Gordon & Reindel (a
partnership including a professional corporation), New York, New York.
EXPERTS
The consolidated balance sheets of NCE and subsidiaries as of December 31,
1996 and 1995, and the related consolidated statements of income, shareholders'
equity and cash flows for each of the three years in the period ended December
31, 1996, included in NCE's Form 8-K dated August 1, 1997, which statements are
incorporated by reference in this registration statement, the balance sheets of
NCE as of December 31, 1996 and 1995, included in NCE's Annual Report on Form
10-K for the year ended December 31, 1996, which statements are incorporated by
reference in this registration statement, the consolidated balance sheets of
PSCo and its subsidiaries as of December 31, 1996 and 1995, and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the three years in the period ended December 31, 1996, and the related
financial statement schedule, included in PSCo's Annual Report on Form 10-K for
the year ended December 31, 1996, which statements and schedule are incorporated
by reference in this registration statement, and the balance sheet of NCE as of
October 31, 1995, which statement is included in the NCE Joint Proxy
Statement/Prospectus and Registration Statement on Form S-4, which statement is
incorporated by reference in this registration statement, have been audited by
Arthur Andersen LLP, independent public accountants, as set forth in their
reports with respect thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
With respect to the unaudited interim financial information of NCE for the
quarters ended March 31, 1997 and June 30, 1997, and the unaudited consolidated
condensed interim financial information of NCE and subsidiaries for the quarter
ended September 30, 1997, included in its Form 10-Qs, which information is
incorporated by reference in this registration statement, the unaudited
consolidated condensed interim financial information of PSCo and its
subsidiaries for the quarters ended March 31, 1997, June 30, 1997 and September
30, 1997, included in its Form 10-Qs, which information is incorporated by
reference in this registration statement and the unaudited consolidated
condensed interim financial information of SPS and its subsidiaries for the
quarters ended March 31, 1997, June 30, 1997 and September 30, 1997, included in
its Form 10-Qs, which information is incorporated by reference in this
registration statement, Arthur Andersen LLP has applied limited procedures in
accordance with professional standards for a review of that information.
However, their separate reports thereon state that they did not audit and they
do not express an opinion on that interim financial information. Accordingly,
the degree of reliance on their reports on that information should be
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<PAGE>
restricted in light of the limited nature of the review procedures applied. In
addition, the accountants are not subject to the liability provisions of Section
11 of the Securities Act of 1933 for their reports on the unaudited interim
financial information because those reports are not a "report" or a "part" of
the Registration Statement prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Act.
The consolidated financial statements of SPS incorporated in this
prospectus by reference from SPS's Annual Report on Form 10-K for the year ended
August 31, 1996 and from SPS's Transition Report on Form 10-K for the four
months ended December 31, 1996 have been audited by Deloitte & Touche LLP,
independent certified public accountants ("Deloitte & Touche") , as stated in
their reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
With respect to the unaudited interim financial information included in
SPS's Quarterly Reports on Form 10-Q for the quarters ended November 30, 1996
and February 28, 1997 that are incorporated herein by reference, Deloitte &
Touche applied limited procedures in accordance with professional standards for
reviews of such information. As stated in their reports that are included in
SPS's Quarterly Reports on Form 10-Q for the quarters ended November 30, 1996
and February 28, 1997 that are incorporated by reference herein, they did not
audit and they did not express an opinion on such interim financial information.
Accordingly, the degree of reliance of any of their reports on such information
should be restricted in light of the limited nature of the review procedures
applied. Deloitte & Touche are not subject to the liability provisions of
Section 11 of the Securities Act for any of their reports on such unaudited
interim financial information because those reports are not "reports" or a
"part" of the registration statement prepared or certified by an accountant
within the meaning of Sections 7 and 11 of the Securities Act.
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<TABLE>
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<S> <C>
============================================================= ======================================================
No person has been authorized to give any information or
to make any representation not contained in this Prospectus
and, if given or made, such information or representation must
not be relied upon as having been authorized by the Company.
This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the
securities offered hereby or any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful NEW CENTURY ENERGIES, INC.
to make such offer in such jurisdiction. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof. Common Stock
(par value $1.00 per share)
TABLE OF CONTENTS
---------------------
Page
PROSPECTUS
---------------------
Available Information....................... 2
Incorporation of Certain
Documents by Reference.................. 2
The Company................................. 3
Use of Proceeds............................. 3
Price Range of Common Stock
and Dividend Information................ 4
Plan of Distribution........................ 4
Legal Opinions.............................. 5
Experts..................................... 5
Dated: , 1997
============================================================= =========================================================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, incurred in connection with the sale of
Common Stock being registered (all amounts are estimated (on the assumption that
all shares will be sold in a single transaction), except the SEC registration
fee and the New York Stock Exchange listing fee). The Company will bear all
expenses incurred in connection with the sale of the Common Stock being
registered hereby.
SEC Registration Fee.................................. $ 115,398
New York Stock Exchange Listing Fee................... 61,800
Printing and engraving expenses....................... 20,000
Legal Fees and Expenses............................... 75,000
Accounting Fees and Expenses.......................... 30,000
Blue Sky Fees and Expenses............................ 5,000
Transfer Agent Fees................................... 10,000
Miscellaneous......................................... 100,000
==========
Total.......................................... $ 417,198
==========
Item 15. Indemnification of Officers and Directors.
Section 145 of the Delaware General Corporation Law (the "Delaware Act")
permits corporations organized thereunder to indemnify directors, officers,
employees and agents against liability under certain circumstances. The
Company's Restated Certificate of Incorporation (the "Company Charter") provides
for indemnification of directors, officers, employees and agents to the full
extent provided by the Delaware Act. The Company Charter states that the
indemnification provided therein shall not be deemed exclusive. The Company may
purchase and maintain insurance on behalf of itself and any director, officer,
employee or agent of the Company or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss,
whether or not the Company would have the power to indemnify such person against
such expense, liability or loss under the Delaware Act. Pursuant to Section
145(g) of the Delaware Act and the Company Charter, the Company maintains
directors' and officers' liability insurance coverage. The Company may also
enter into an indemnity agreement with any director, officer, employee or agent
of the Company or another corporation, partnership, joint venture, trust or
other enterprise, as long as the provisions of the agreement are not
impermissible under applicable law.
As permitted by Section 102(a) of the Delaware Act, the Company Charter
provides that no director shall be personally liable to the Company or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability: (i) for any breach of the directors' duty of loyalty to
the Company or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware Act (relating to certain unlawful distributions to
shareholders) or (iv) for any transaction from which the director derived an
improper personal benefit.
Item 16. Exhibits.
Reference is made to the Exhibit Index filed as a part of this Registration
Statement.
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<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement; and
(c) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
provided, however, that paragraphs 1(a) and 1(b) do not apply if the
information required to be included in such post-effective amendment is
contained in a periodic report filed by the Company pursuant to Section 13
or Section 15(d) of the Exchange Act and incorporated herein by reference.
2. That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
4. That, for purposes of determining any liability under the Securities Act,
each filing of an annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
undersigned pursuant to the provisions described under Item 15 above, or
otherwise, the undersigned have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the undersigned of expenses incurred or paid by
a director, officer or controlling person of the undersigned in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the undersigned will, unless in the opinion of its
counsel the matter has been settled by control-
II-2
<PAGE>
ling precedent, submit to a court of appropriate jurisdiction the question
of whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on November 14, 1997.
NEW CENTURY ENERGIES, INC.
By /s/ Richard C. Kelly
------------------------------------
Name: Richard C. Kelly
Title: Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Bill D. Helton * Chairman of the Board and Chief November 14, 1997
- ----------------------- Executive Officer (Principal
Name: Bill D. Helton Executive Officer)
/s/ Wayne H. Brunetti * Vice Chairman of the Board, November 14, 1997
- -------------------------- President, Chief Operating
Name: Wayne H. Brunetti Officer and Director
/s/ Richard C. Kelly Executive Vice President and November 14, 1997
- ------------------------- Chief Financial Officer
Name: Richard C. Kelly (Principal Financial Officer
and Principal Accounting
Officer)
/s/ C. Coney Burgess * Director November 14, 1997
- --------------------------
Name: C. Coney Burgess
- -------------------------- Director November , 1997
Name: Danny H. Conklin
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<PAGE>
Director November , 1997
- ------------------------------
Name: Giles M. Forbess
Director November , 1997
- ------------------------------
Name: Gayle L. Greer
Director November , 1997
- ------------------------------
Name: R. R. Hemminghaus
/s/ A. Barry Hirschfeld * Director November 14, 1997
- -----------------------------
Name: A. Barry Hirschfeld
- -------------------------------- Director November , 1997
Name: J. Howard Mock
/s/ Will F. Nicholson, Jr. * Director November 14, 1997
- --------------------------------
Name: Will F. Nicholson, Jr.
/s/ J. Michael Powers * Director November 14, 1997
- -------------------------------
Name: J. Michael Powers
- -------------------------------- Director November , 1997
Name: Rodney E. Slifer
/s/ W. Thomas Stephens * Director November 14, 1997
- ----------------------------
Name: W. Thomas Stephens
/s/ Robert G. Tointon * Director November 14, 1997
- ---------------------------
Name: Robert G. Tointon
*By: /s/ Richard C. Kelly
----------------------------
Name: Richard C. Kelly,
as attorney in fact
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
1(a) Form of Underwritten Purchase Agreement.
1(b) Form of Purchase Agreement--Direct Sales.
4(a) Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Annex VIII to Joint Proxy Statement/Prospectus and
Registration Statement on Form S-4 (File No. 33-64951)).
4(b) Restated Bylaws (incorporated by reference to Annex IX to
Joint Proxy Statement/Prospectus and Registration Statement
on Form S-4 (File No. 33-64951)).
4(c) Rights Agreement, dated as of August 1, 1997 between the Company and
The Bank of New York, as Rights Agent (incorporated by reference to
Exhibit 1 to the Company's Current Report on Form 8-K dated August 1,
1997).
5 Opinion of Counsel for the Registrant.
15(a) Letter of Arthur Andersen LLP on Unaudited Financial Information
of the Company.
15(b) Letter of Arthur Andersen LLP on Unaudited Financial Information of
PSCo.
15(c) Letter of Deloitte & Touche LLP on Unaudited Financial Information of
SPS.
15(d) Letter of Arthur Andersen LLP on Unaudited Financial Information of
SPS.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Deloitte & Touche LLP.
23(c) Consent of Counsel for the Registrant (included in Exhibit 5).
24 Powers of Attorney.
II-6
Exhibit 1(a)
NEW CENTURY ENERGIES, INC.
COMMON STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF UNDERWRITTEN PURCHASE AGREEMENT
<PAGE>
NEW CENTURY ENERGIES, INC.
STANDARD PURCHASE PROVISIONS -
COMMON STOCK
From time to time, New Century Energies, Inc., a corporation organized and
existing under the laws of the State of Delaware (the "Company") may enter into
purchase agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth herein
may be incorporated by reference in any such purchase agreement (the "Purchase
Agreement"). The Purchase Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as "this Agreement." The
term "Common Stock" shall mean the Common Stock, par value $1.00 per share, of
the Company and for each share of Common Stock shall include a right (the
"Rights") to purchase one one-hundredth of a share of preferred stock of the
Company issued under the Rights Agreement, dated August 1, 1997 between the
Company and The Bank of New York, as Rights Agent. Unless otherwise defined
herein, terms defined in the Purchase Agreement are used herein as therein
defined.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations of the Securities and
Exchange Commission thereunder (collectively called the "Act"), with the
Securities and Exchange Commission (the "Commission"), a registration statement
on Form S-3 (including a prospectus), relating to the Company's Common Stock,
which pursuant to Item 12 of Form S-3 incorporates by reference documents which
the Company has filed in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively called the "Exchange Act"). Such registration statement has been
declared effective by the Commission. Promptly upon the execution of this
Agreement, the Company will prepare a prospectus supplement relating to the
Common Stock to be sold by the Company pursuant to the applicable Purchase
Agreement (the "Prospectus Supplement"). The Company has furnished to you, for
use by the Underwriters (as defined herein) and dealers, copies of one or more
preliminary prospectuses and the documents so incorporated therein (each
thereof, including the documents so incorporated therein, is herein called the
"Preliminary Prospectus"). The terms Registration Statement and Prospectus shall
have the meanings ascribed to them in the Purchase Agreement.
1. Introductory. The Company proposes to issue and sell from time to time
Common Stock registered under the Regis-
<PAGE>
-2-
tration Statement. The shares of Common Stock referred to on Schedule A of the
Purchase Agreement are hereinafter referred to as the "Firm Shares." The
Purchase Agreement may provide for an additional number of shares of Common
Stock (the "Additional Shares") which number shall not exceed 15% of the number
of Firm Shares, which the purchasers may purchase on the terms and conditions
set forth in this Agreement for the sole purpose of covering over-allotments.
The Firm Shares and the Additional Shares, if any, are collectively referred to
as the "Purchased Shares." The firm or firms, as the case may be, which agree to
purchase the Purchased Shares are hereinafter referred to as the "Underwriters"
of the Purchased Shares. The terms "you" and "your" refer to those Underwriters
who sign the Purchase Agreement either on behalf of themselves only or on behalf
of themselves and as representatives of the several Underwriters named in
Schedule A thereto, as the case may be.
2. Delivery and Payment. The Company will deliver the certificates for the
Firm Shares to you in certificated form unless otherwise specified in the
Purchase Agreement for the accounts of the Underwriters at the place specified
in the Purchase Agreement, against payment of the purchase price by wire
transfer of immediately available funds (or as otherwise agreed to by the
parties and specified in this Agreement), at the time set forth in this
Agreement or at such other time not later than seven full business days
thereafter as you and the Company determine, such time being herein referred to
as the "time of purchase." Unless otherwise provided for in the Purchase
Agreement, any certificates for the Firm Shares so to be delivered will be in
such denominations and registered in such names as you request in writing not
later than 10:00 A.M.,* on the third business day prior to the time of purchase,
or, if no such request is received, in the names of the respective Underwriters
in the denominations agreed to be purchased by them pursuant to this Agreement.
For the purpose of expediting the checking of any certificates for the Firm
Shares, the Company agrees to make such certificates available to you at the
place specified in the Purchase Agreement registered in such names and
denominations as you shall have requested not later than 10:00 A.M. on the first
business day preceding the time of purchase.**
- ----------
* Times mentioned herein are New York City Time.
** As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
<PAGE>
-3-
If there are any Additional Shares, the Underwriters shall have the option
to purchase, severally and not jointly, from the Company, ratably in accordance
with the number of Firm Shares to be purchased by each of them (subject to such
adjustment as you shall determine to avoid fractional shares), all or a portion
of the Additional Shares, if any, as may be necessary to cover over-allotments
made in connection with the offering of the Firm Shares, at the same purchase
price per share to be paid by the Underwriters to the Company for the Firm
Shares, all subject to the terms and conditions set forth in this Agreement.
This option may be exercised at any time (but not more than once) on or before
the thirtieth day following the date hereof, by your written notice to the
Company. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being referred to as
the "Additional Closing Date"); provided, however, that the Additional Closing
Date shall not be earlier than the Closing Date nor earlier than the third
business day after the date on which the option shall have been exercised nor
later than the eighth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A to the Purchase Agreement
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares).
Payment of the purchase price for the Additional Shares, if any, shall be
made on the Additional Closing Date in the same manner and at the same office as
the payment for the Firm Shares. The Company agrees to make available to you for
inspection and packaging at the place set forth in the Purchase Agreement, at
least one full business day prior to the Additional Closing Date, any
certificates for the Additional Shares so to be delivered in good delivery form
and in such denominations and registered in such names as you shall have
requested, all such requests to have been made in writing at least three full
business days prior to the Additional Closing Date, or if no such request is
made, registered in the names of the several Underwriters as set forth in
Schedule A to the Purchase Agreement.
<PAGE>
-4-
If the Additional Closing Date occurs after the Closing Date, then the
obligation of the Underwriters to purchase the Additional Shares shall be
conditioned upon receipt of supplemental opinions, certificates and letters
confirming as of the Additional Closing Date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
3. Certain Covenants of the Company. The Company agrees:
(a) As soon as possible after the execution and delivery of this
Agreement to file, or mail for filing, the Prospectus with the
Commission pursuant to its Rule 424 under the Act;
(b) To file no amendment or supplement to the Registration
Statement or Prospectus (other than a required filing under the
Exchange Act) subsequent to the execution of this Agreement and prior
to the time of purchase to which you object in writing;
(c) To furnish such proper information as may be required and
otherwise to cooperate in qualifying the Purchased Shares for sale
under the laws of such jurisdictions as you may designate; provided
that the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(d) To the extent not previously furnished to you, to furnish to
you two signed copies of the Registration Statement, as initially
filed with the Commission, of all amendments thereto, and of all
documents incorporated by reference therein (including unsigned copies
of all exhibits filed therewith, other than exhibits which have
previously been furnished to you), two signed copies of each consent
and certificate of independent accountants and of each other person
who by his profession gives authority to statements made by him and
who is named in the Registration Statement as having prepared,
certified or reviewed any part thereof, and to furnish to you
sufficient unsigned copies of the foregoing (other than exhibits,
including consents filed as exhibits, to the Regis-
<PAGE>
-5-
tration Statement) for distribution of a copy to you and to each of
the other Underwriters;
(e) To deliver to the Underwriters without charge in New York
City as soon as practicable after the execution and delivery of this
Agreement and thereafter from time to time to the Underwriters,
without charge, as many copies of the Prospectus in final form and any
documents incorporated by reference therein at or after the date
thereof (or as amended or supplemented, if the Company shall have made
any amendment or supplement after the effective date of the
Registration Statement) as you or the respective Underwriters may
reasonably request for the purposes contemplated by the Act;
(f) To advise you promptly (confirming such advice in writing) of
any official request made by the Commission for amendments to the
Registration Statement or Prospectus or for additional information
with respect thereto, or of official notice of institution of
proceedings for, or the entry of, a stop order suspending the
effectiveness of the Registration Statement and, if such order should
be entered by the Commission, to make every reasonable effort to
obtain the lifting or removal thereof as soon as possible, or of the
suspension of qualification of the Purchased Shares for offering or
sale in any jurisdiction or of the initiation or threatening of any
proceeding for any such purpose;
(g) To apply the net proceeds from the sale of the Purchased
Shares in the manner set forth in the Prospectus;
(h) To furnish to you during a period of five years from the time
of purchase (i) as soon as practicable after the end of each fiscal
year, a copy of its annual report to shareholders for such year, (ii)
from time to time, copies of any reports or other communications which
it shall file with the Commission or any governmental agency
substituted therefor under the Exchange Act or sent to its public
stockholders, or holders of the Purchased Shares, and (iii) such other
information as you may from time to time reasonably re-
<PAGE>
-6-
quest regarding the financial condition and operations of the Company;
(i) To furnish to any other Underwriter copies of such financial
statements, reports or other information referred to in the foregoing
subparagraphs (h)(i) and (ii) as such Underwriter may, from time to
time during the period you are entitled to receive them, request;
(j) To advise the Underwriters of the happening of any event
known to the Company within the time during which a prospectus
relating to the Purchased Shares is required to be delivered under the
Act which, in the judgment of the Company, would require the making of
any change in the Prospectus or any amended or supplemented Prospectus
or in the information incorporated by reference therein so that as
thereafter delivered to purchasers such Prospectus will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and on
request to prepare and furnish to the Underwriters and to dealers and
other persons designated by you such amendments or supplements
(including appropriate filings under the Exchange Act) to the
Prospectus as may be necessary to reflect any such change, provided
that the Company shall be so obligated only so long as the Company is
notified of unsold allotments (failure by the Underwriters to so
notify the Company cancels the Company's obligation under this Section
3(j));
(k) As soon as practicable, to make generally available to its
security holders an earnings statement (as contemplated by Rule 158
under the Act) covering a period of twelve months after the effective
date of the Registration Statement;
(l) to pay the fees and expenses of counsel for the Underwriters,
and to reimburse the Underwriters for their reasonable out-of-pocket
expenses incurred in contemplation of the performance of this
Agreement, in the event that the Purchased Shares are not delivered to
and taken up and paid for by the Underwriters hereunder for any
<PAGE>
-7-
reason whatsoever except the failure or refusal of any Underwriter to
take up and pay for Purchased Shares for some reason not permitted by
the terms of this Agreement, the Underwriters agreeing to pay the fees
and expenses of counsel for the Underwriters in any other event;
(m) To pay all expenses, fees and taxes (other than transfer
taxes and fees and disbursements of counsel for the Underwriters
except as set forth under 3(l) above or (iv) below) in connection with
(i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus and the Prospectus, any documents incorporated
by reference therein at or after the date thereof and any amendments
or supplements thereto, and the printing or reproduction and
furnishing of copies of each thereof to the Underwriters and to
dealers, (ii) the issue, sale and delivery of the Purchased Shares,
(iii) the printing or reproduction of this Agreement and the opinions
and letters referred to in Section 4(a) hereof, (iv) the qualification
of the Purchased Shares for sale under state laws as aforesaid,
including the reasonable legal fees and all filing fees and
disbursements of counsel for the Underwriters and all other filing
fees, and the printing or reproduction and furnishing of copies of the
"Blue Sky Survey" to the Underwriters and to dealers, and (v) the
performance of the Company's other obligations hereunder;
(n) To furnish to you as early as practicable prior to the time
of purchase, but no later than two business days prior thereto, a copy
of the latest available unaudited interim consolidated financial
statements, if any, of the Company which have been read by the
Company's independent public accountants as stated in their letter to
be furnished pursuant to Section 4(a) of this Agreement; and
(o) If a public offering of the Purchased Shares is to be made,
not to offer or sell any of its Common Stock prior to thirty days
after the time of purchase without your consent (except pursuant to
employee benefit or dividend reinvestment plans).
<PAGE>
-8-
4. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder to purchase and pay for the Firm Shares are subject to
the following conditions:
(a) That, at the time of purchase, you shall receive the signed
opinions of counsel for the Company and counsel for the Underwriters,
substantially in the forms heretofore furnished to you, addressed to
the Underwriters (with reproduced or conformed copies thereof for each
of the other underwriters); and that, at the time of purchase, you
shall receive the signed letters of the independent public accountants
of the Company, substantially in the form heretofore furnished to you
and in substance satisfactory to you addressed to the Underwriters
(with reproduced or conformed copies thereof for each of the other
underwriters);
(b) That, prior to the time of purchase, no stop order with
respect to the effectiveness of the Registration Statement shall have
been issued under the Act by the Commission and at such time of
purchase no proceedings therefor shall be pending or threatened;
(c) That, at the time the Registration Statement became
effective, the Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and that at the time of purchase the Prospectus shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, other than any statement contained in, or
any matter omitted from, the Registration Statement or the Prospectus
in reliance upon, and in conformity with, information furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use with reference to such Underwriter in the
Registration Statement or Prospectus;
<PAGE>
-9-
(d) That, subsequent to the respective dates as of which
information is given in the Registration Statement and in the
Prospectus, at the time the Prospectus is first filed, or mailed for
filing, pursuant to Rule 424 under the Act, and prior to the time of
purchase, in your opinion no material adverse change, or any
development involving a prospective material adverse change, in the
condition of the Company, financial or otherwise, shall have taken
place (other than as referred to in or contemplated by the
Registration Statement and Prospectus as of such time);
(e) That, at the time of purchase, the Company shall have
performed all of its obligations under this Agreement which are to be
performed by the terms hereof at or before the time of purchase; and
(f) That, if a public offering of the Purchase Shares is to be
made, since the date of this Agreement and prior to the time of
purchase, there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Act (other than as referred to in or contemplated by the
Registration Statement and the Prospectus as of such time);
(g) That the Company shall, at the time of purchase, deliver to
you (with reproduced or conformed copies thereof for each of the other
Underwriters) a signed certificate of two of its executive officers
stating that, subsequent to the respective dates as of which
information is given in the Registration Statement and in the
Prospectus, at the time the Prospectus is first filed, or mailed for
filing, pursuant to Rule 424 under the Act, and prior to the time of
purchase, no material adverse change, or any development involving a
prospective material adverse change, in the condition of the Company,
financial or otherwise, shall have taken place (other than as referred
to
<PAGE>
-10-
in or contemplated by the Registration Statement and Prospectus as of
such time) and also covering the matters set forth in (c) and (e) of
this Section 4.
(h) That, at the time of purchase, the New York Stock Exchange
shall have approved for listing upon official notice of issuance, the
Purchased Shares.
5. Termination of Agreement. The obligations of the several Underwriters
hereunder shall be subject to termination in your absolute discretion, if, at
any time prior to the time of purchase, trading in securities on the New York
Stock Exchange shall have been suspended (other than a temporary suspension to
provide for an orderly market) or minimum prices shall have been established on
the New York Stock Exchange, or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if after the
execution of this Agreement the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment, to make it
impracticable to market the Firm Shares or the Additional Shares, as the case
may be.
If you elect to terminate this Agreement as provided in this Section 5, the
Company and each other Underwriter shall be notified promptly in writing or by
telephone, confirmed in writing.
If the sale to the Underwriters of the Firm Shares as herein contemplated
is not carried out by the Underwriters for any reason permitted hereunder or if
such sale is not carried out because the Company shall be unable to comply with
any of the terms thereof, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections 3(l),
3(m), 7(b) and 9 hereof), and the Underwriters shall be under no obligation or
liability to the Company (except to the extent provided in Sections 8(b) and 9
hereof) or to one another under this Agreement.
6. Increase in Underwriters' Commitments. If any Underwriter shall default
in its obligation to take up and pay for the Firm Shares or the Additional
Shares, as the case may be, to be purchased by it hereunder and if the number of
Firm
<PAGE>
-11-
Shares or Additional Shares, as the case may be, which all Underwriters so
defaulting shall have so failed to take up and pay for does not exceed 10% of
the total number of Firm Shares or Additional Shares, as the case may be, the
non-defaulting Underwriters shall take up and pay for (in addition to the number
of Firm Shares or Additional Shares, as the case may be, they are obligated to
purchase pursuant to this Agreement) the number of Firm Shares or Additional
Shares, as the case may be, agreed to be purchased by all such defaulting
Underwriters, as herein provided. Such Firm Shares or Additional Shares, as the
case may be, shall be taken up and paid for by such non-defaulting Underwriter
or Underwriters in such number as you may designate with the consent of each
Underwriter so designated or, in the event no such designation is made, such
Firm Shares or Additional Shares, as the case may be, shall be taken up and paid
for by all non-defaulting Underwriters pro rata in proportion to the number of
Firm Shares set opposite the names of all such nondefaulting Underwriters in
Schedule A to the Purchase Agreement.
Without relieving any defaulting Underwriter of its obligations hereunder,
the Company agrees with the non-defaulting Underwriters that it will not sell
any Firm Shares or Additional Shares, as the case may be, hereunder unless all
of the Firm Shares or Additional Shares, as the case may be, are purchased by
the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new underwriter or underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you will have the right to postpone the
time of purchase for a period of not exceeding five business days in order that
necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement will refer to and include
any underwriter substituted under this Section 6 with like effect as if such
substituted underwriter had originally been named in Schedule A to the Purchase
Agreement.
7. Warranties and Representations of and Indemnity by the Company. (a) The
Company warrants and represents that, when the Registration Statement became
effective, the Registration Statement complied in all material respects, and,
when the Prospectus is first filed, or mailed for filing, pursuant to
<PAGE>
-12-
Rule 424 under the Act, the Prospectus will comply in all material respects with
the provisions of the Act, and that neither will contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that the Company makes no warranty or representation with respect to any
statement contained in, or any matter omitted from, the Registration Statement
or the Prospectus in reliance upon and in conformity with information furnished
in writing by or on behalf of any Underwriter through you to the Company
expressly for use with reference to the Underwriter in the Registration
Statement or Prospectus. The Company also warrants and represents that the
documents incorporated by reference in the Prospectus comply in all material
respects with the requirements of the Exchange Act and any additional documents
deemed to be incorporated by reference in the Prospectus will, when they are
filed with the Commission, comply in all material respects with the requirements
of the Exchange Act, and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein, or necessary to
make the statements therein, in the light of the circumstances under which they
are made, not misleading.
(b) The Company agrees to indemnify and hold harmless each Underwriter, and
any person who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any loss, expense,
liability or claim (including the reasonable fees and expenses of counsel and
other reasonable expenses in connection with investigating, defending or
settling any such claim) which arises out of or is based upon any alleged untrue
statement of a material fact in the Registration Statement, any prospectus
contained in the Registration Statement at the time it became effective or the
Prospectus, or any related preliminary prospectus, or arises out of or is based
upon any alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements made therein not misleading. The
foregoing shall not cover any such loss, expense, liability or claim, however,
which arises out of or is based upon any alleged untrue statement of a material
fact contained in, and in conformity with information furnished in writing by or
on behalf of such Underwriter through you to the Company expressly for use with
reference to the Underwriter in, any such documents or arises out of or is based
upon any alleged omission to state a material fact in connection with such
information required to be stated in any such documents or necessary to make
such information not misleading.
<PAGE>
-13-
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such action
and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses. Such Underwriter or controlling
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of such counsel
shall have been authorized in writing by the Company in connection with the
defense of such action or the Company shall not have employed counsel to have
charge of the defense of such action or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the Company (in
which case the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses of one counsel (in addition to local counsel) for all
indemnified parties selected by you shall be borne by the Company. Anything in
this paragraph to the contrary notwithstanding, the Company shall not be liable
for any settlement of any such claim or action effected without its written
consent. The Company's indemnity agreement contained in this Section 7(b) and
its warranties and representations contained in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or controlling person, and shall survive any termination of this
Agreement or the issuance and delivery of the Purchased Shares. The Company
agrees promptly to notify the Underwriters of the commencement of any litigation
or proceedings against the Company or any of its officers or directors in
connection with the issue and sale of the Shares or with such Registration
Statement or Prospectus.
8. Warranties and Representations of and Indemnity by Underwriters. (a)
Each Underwriter warrants and represents that the information furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use with reference to such Underwriter in the Registration Statement at the
time it became effective or the Prospectus, or any related preliminary
prospectus does not contain an untrue statement of a material fact and does not
omit to state a material fact in connection with such information required to be
stated in the Registration Statement at the time it became effective or the
Prospectus, or any related preliminary prospec-
<PAGE>
-14-
tus or necessary to make such information not misleading. Each Underwriter, in
addition to other information furnished by such Underwriter or on its behalf
through you to the Company in writing expressly for use with reference to such
Underwriter in the Registration Statement and Prospectus, hereby furnishes to
the Company in writing expressly for use with reference to such Underwriter the
statements with respect to the terms of offering of the Purchased Shares by the
Underwriters set forth on the cover page of the Prospectus Supplement and under
"underwriting" therein.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and its officers from and against any loss, expense,
liability or claim (including the reasonable fees and expenses of counsel and
other reasonable expenses in connection with investigating, defending or
settling any such claim) which arises out of or is based upon any alleged untrue
statement of a material fact contained in, and in conformity with information
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use with reference to such Underwriter in, the
Registration Statement, any prospectus contained in the Registration Statement
at the time it became effective or the Prospectus, or any related preliminary
prospectus, or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be stated in such
documents or necessary to make such information not misleading.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing or by telephone, confirmed in writing, of the institution
of such action and such Underwriter shall assume the defense of such action,
including the employment of counsel and payment of expenses. The Company or such
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the Company
or such person unless the employment of such counsel shall have been authorized
in writing by such Underwriter in connection with the defense of such action or
such Underwriter shall not have employed counsel to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of
<PAGE>
-15-
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses for all indemnified parties of one counsel (in
addition to local counsel) selected by the Company shall be borne by such
Underwriter. Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of such Underwriter. The indemnity
agreement on the part of each Underwriter contained in this Section 8(b) shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or such person, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. Each Underwriter agrees
promptly to notify the Company of the commencement of any litigation or
proceedings against such Underwriter in connection with the issue and sale of
the Purchased Shares or with such Registration Statement or Prospectus.
9. Contribution. If the indemnification provided for in Section 7(b) or
8(b) above is unavailable in respect of any losses, expenses, liabilities or
claims referred to therein, then the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities and expenses
except to the extent that contribution is not permitted under the Act or the
Exchange Act. In determining the amount of contribution to which the respective
parties are entitled, there shall be considered the relative benefits received
by each party from the offering of the Purchased Shares (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and the Underwriters and such controlling persons
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters and
such controlling persons were treated as one entity for such purpose).
Notwithstanding the provisions of this Section 9, no indemnifying Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Purchased Shares underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter otherwise has been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudu-
<PAGE>
-16-
lent misrepresentation. The contribution agreement contained in this Section 9
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Underwriter or the Company or any of its officers or directors
or any controlling person and shall survive any termination of this Agreement or
the issuance and delivery of the Purchased Shares.
10. Notices. All statements, requests, notices and agreements shall be in
writing or by facsimile and, if to the Underwriters, shall be sufficient in all
respects if delivered or sent by registered mail to the address furnished in
writing for the purpose of such statements, requests, notices and agreements
hereunder, and, if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the Company at New Century Energies,
Inc., 1225 17th Street, Denver, Colorado 80202, Attention: Chief Financial
Officer.
11. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this agreement.
12. The Agreement herein set forth has been and is made solely for the
benefit of the Underwriters and the controlling persons, directors and officers
referred to in Section 8 hereof, and their respective successors, assigns,
executors and administrators, and no other person shall acquire or have any
right under or by virtue of this Agreement. Nothing in this Agreement is
intended or shall be construed to give to any other person, firm or corporation
(including, without limitation, any purchaser of the Purchased Shares from an
Underwriter or any subsequent holder thereof) any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Shares from any Underwriter or
any subsequent holder thereof.
13. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
<PAGE>
NEW CENTURY ENERGIES, INC.
PURCHASE AGREEMENT
COMMON STOCK
New Century Energies, Inc.
1225 17th Street
Denver, Colorado 80202
Dear Sirs:
Referring to the Common Stock, par value $1.00 per share, of New Century
Energies, Inc. (the "Company") covered by the registration statement on Form S-3
(No. 333- ), such registration statement including (i) the prospectus included
therein, dated , 199__ in the form first filed under Rule 424 and any additional
prospectus supplements relating to the Common Stock filed under Rule 424 (such
prospectus as so supplemented, including each document incorporated by reference
therein is hereinafter called the "Prospectus") and (ii) all documents filed as
part thereof or incorporated by reference therein, is hereinafter called the
"Registration Statement," on the basis of the representations, warranties and
agreements contained in this Agreement, but subject to the terms and conditions
herein set forth, the purchaser or purchasers named in Schedule A hereto (the
"Underwriters") agree to purchase, severally, and the Company agrees to sell to
the Underwriters, severally, the respective number of shares of Common Stock
having the terms described below (the "Purchased Shares") set forth opposite the
name of each Underwriter on Schedule A hereto.
The price at which the Purchased Shares shall be purchased from the Company
by the Underwriters shall be $_____ per share. The initial public offering price
shall be $__ per share. The number of Purchased Shares constituting Firm Shares
shall be ______ and the number of Purchased Shares constituting Additional
Shares shall be __________. The Purchased Shares will be offered by the
Underwriters as set forth in the Prospectus relating to such Purchased Shares.
The Purchased Shares shall be
delivered in the following form:
-------------------------
<PAGE>
-2-
Payment for the Shares shall be
made in the following funds:
-------------------------
The "time of purchase" shall be:
------------------------
[The place at which the Shares
may be checked and packaged
shall be:
------------------------]
The place(s) at which the
Shares shall be delivered and
sold shall be:
-------------------------
Other terms: _________________________
Notices to Underwriters shall be sent to the following addresses or
telecopier number(s):
If we are acting as Representative(s) for the several Underwriters named in
Schedule A hereto, we represent that we are authorized to act for such several
Underwriters in connection with the transactions contemplated in this Agreement,
and that, if there are more than one of us, any action under this Agreement
taken by any of us will be binding upon all the Underwriters.
All of the provisions contained in the document entitled "New Century
Energies, Inc. Standard Purchase Provisions - Common Stock," a copy of which has
been previously furnished to us, are hereby incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein.
<PAGE>
-3-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Underwriters in
accordance with its terms.
Yours very truly,
[Firm Name]
By
-----------------------------------
Title:
-----------------------------
[Firm Name]
By
-----------------------------------
Title:
-----------------------------
Acting on behalf of and as
Representative(s) of the
several Underwriters named
in Schedule A hereto.*
The foregoing Purchase Agreement
is hereby confirmed as of the
date first above written
NEW CENTURY ENERGIES, INC.
By
- -----------------------------------
Title:
-----------------------------
- ----------
* To be deleted if the Purchase Agreement is not executed by one or more
Underwriters acting as Representative(s) of the Underwriters for purposes
of this Agreement.
<PAGE>
SCHEDULE A
Number
of
Name of Underwriters Firm Shares
- -------------------- -----------
Total ------------
------------
Exhibit 1(b)
NEW CENTURY ENERGIES, INC.
COMMON STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT - DIRECT SALES
<PAGE>
NEW CENTURY ENERGIES, INC.
STANDARD PURCHASE PROVISIONS -
COMMON STOCK
From time to time, New Century Energies, Inc., a corporation organized and
existing under the laws of the State of Delaware (the "Company") may enter into
purchase agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth herein
may be incorporated by reference in any such purchase agreement (the "Purchase
Agreement"). The Purchase Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as "this Agreement." The
term "Common Stock" shall mean the Common Stock, par value $1.00 per share, of
the Company and for each share of Common Stock shall include a right (the
"Rights") to purchase one one-hundredth of a share of preferred stock of the
Company issued under the Rights Agreement, dated as of August 1, 1997 between
the Company and The Bank of New York, as Rights Agent. Unless otherwise defined
herein, terms defined in the Purchase Agreement are used herein as therein
defined.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations of the Securities and
Exchange Commission thereunder (collectively called the "Act"), with the
Securities and Exchange Commission (the "Commission"), a registration statement
on Form S-3 (including a prospectus), relating to the Company's Common Stock,
which pursuant to Item 12 of Form S-3 incorporates by reference documents which
the Company has filed in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively called the "Exchange Act"). Such registration statement has been
declared effective by the Commission. Promptly upon the execution of this
Agreement, the Company will prepare a prospectus supplement relating to the
Common Stock to be sold by the Company pursuant to the applicable Purchase
Agreement (the "Prospectus Supplement"). The terms Registration Statement and
Prospectus shall have the meanings ascribed to them in the Purchase Agreement.
1. Introductory. The Company proposes to issue and sell from time to time
Common Stock registered under the Registration Statement. The shares of Common
Stock referred to on Schedule A of the Purchase Agreement are hereinafter
referred to as the "Shares," and the Purchaser or Purchasers, as the case may
be, which agree to purchase the same are hereinafter referred to as the
"Purchasers" of the Shares. The terms "you"
<PAGE>
-2-
and "your" refer to those Purchasers who sign the Purchase Agreement.
2. Delivery and Payment. The Company will deliver the Shares to the
Purchasers at the place specified in the Purchase Agreement, in certificated
form unless otherwise specified in the Purchase Agreement, against payment of
the purchase price by wire transfer of immediately available funds (or as
otherwise agreed to by the parties and specified in this Purchase Agreement), at
the time set forth in this Agreement or at such other time not later than seven
full business days thereafter as you and the Company determine, such time being
herein referred to as the "time of purchase." Unless otherwise provided for in
the Purchase Agreement, any certificates for the Shares so to be delivered will
be registered in the names of the respective Purchasers in the denominations
agreed to be purchased by them pursuant to this Agreement.
3. Certain Covenants of the Company. The Company agrees:
(a) As soon as possible after the execution and delivery of this
Agreement to file, or mail for filing, the Prospectus with the Commission
pursuant to its Rule 424 under the Act;
(b) To file no amendment or supplement to the Registration Statement
or Prospectus (other than a required filing under the Exchange Act)
subsequent to the execution of this Agreement and prior to the time of
purchase to which you object in writing;
(c) To advise you promptly (confirming such advice in writing) of any
official request made by the Commission for amendments to the Registration
Statement or Prospectus or for additional information with respect thereto,
or of official notice of institution of proceedings for, or the entry of, a
stop order suspending the effectiveness of the Registration Statement and,
if such order should be entered by the Commission, to make every reasonable
effort to obtain the lifting or removal thereof as soon as possible;
(d) To pay all expenses, fees and taxes (other than transfer taxes and
fees and disbursements of counsel for the Purchasers) in connection
<PAGE>
-3-
with (i) the preparation and filing of the Registration Statement, the
Prospectus, any documents incorporated by reference therein at or after the
date thereof and any amendments or supplements thereto, (ii) the issue,
sale and delivery of the Shares and (iii) the performance of the Company's
other obligations hereunder.
4. Conditions of Purchasers' Obligations. The several obligations of the
Purchasers hereunder are subject to the following conditions:
(a) That, at the time of purchase, you shall receive the signed
opinion of counsel for the Company, substantially in the form heretofore
furnished to you, addressed to the Purchasers;
(b) That, prior to the time of purchase, no stop order with respect to
the effectiveness of the Registration Statement shall have been issued
under the Act by the Commission and at such time of purchase no proceedings
therefor shall be pending or threatened;
(c) That, at the time the Registration Statement became effective, the
Registration Statement did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and that at the
time of purchase the Prospectus shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(d) That the Company shall have performed all of its obligations under
this Agreement which are to be performed by the terms hereof at or before
the time of purchase;
(e) That the warranties and representations made by the Company in
Section 5 shall be true and correct in all material respects at the date of
this Agreement and at the time of purchase; and
<PAGE>
-4-
(f) That, at the time of purchase, the New York State Exchange shall
have approved the Shares for listing upon official notice of issuance.
5. Warranties and Representations of the Company. The Company warrants and
represents that:
(a) this Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as may be limited
by applicable laws or equitable principles and except as enforcement hereof
may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws relating to or affecting creditors' rights generally or
by general equitable principles;
(b) when the Registration Statement became effective, the Registration
Statement complied in all material respects, and, when the Prospectus is
first filed, or mailed for filing, pursuant to Rule 424 under the Act, the
Prospectus will comply in all material respects with the provisions of the
Act, and that neither will contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(c) the documents incorporated by reference in the Prospectus comply
in all material respects with the requirements of the Exchange Act and any
additional documents deemed to be incorporated by reference in the
Prospectus will, when they are filed with the Commission, comply in all
material respects with the requirements of the Exchange Act, and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein, or necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading;
(d) upon the sale of the Shares to each Purchaser in accordance with
the terms of this Agreement, the Shares purchased by such Purchaser will
<PAGE>
-5-
be legally issued, fully paid and non-assessable; and
(e) The Rights issued with respect to the Shares to be purchased by
each Purchaser have been validly issued.
6. Notices. All statements, requests, notices and agreements shall be in
writing or by facsimile and, if to the Purchasers, shall be sufficient in all
respects if delivered or sent by registered mail to the address furnished in
writing for the purpose of such statements, requests, notices and agreements
hereunder, and, if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the Company at New Century Energies,
Inc., 1225 17th Street, Denver, Colorado 80202, Attention: Chief Financial
Officer.
7. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this agreement.
8. The Agreement herein set forth has been and is made solely for the
benefit of the Purchasers and their respective successors, assigns, executors
and administrators, and no other person shall acquire or have any right under or
by virtue of this Agreement. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation (including, without
limitation, any subsequent holder of the Shares) any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained.
The term "successor" as used in this Agreement shall not include any
subsequent holder of any Shares.
9. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
<PAGE>
NEW CENTURY ENERGIES, INC.
PURCHASE AGREEMENT
COMMON STOCK
New Century Energies, Inc.
1225 17th Street
Denver, Colorado 80202
Dear Sirs:
Referring to the Common Stock, par value $1.00 per share, of New Century
Energies, Inc. (the "Company") covered by the registration statement on Form S-3
(No. 333- ), such registration statement including (i) the prospectus included
therein, dated , 199__ in the form first filed under Rule 424 and any additional
prospectus supplements relating to the Common Stock filed under Rule 424 (such
prospectus as so supplemented, including each document incorporated by reference
therein is hereinafter called the "Prospectus") and (ii) all documents filed as
part thereof or incorporated by reference therein, is hereinafter called the
"Registration Statement," on the basis of the representations, warranties and
agreements contained in this Agreement, but subject to the terms and conditions
herein set forth, the purchaser or purchasers named in Schedule A hereto (the
"Purchasers") agree to purchase, severally and not jointly, and the Company
agrees to sell to the Purchasers, severally and not jointly, the respective
number of shares of Common Stock having the terms described below (the "Shares")
set forth opposite the name of each Purchaser on Schedule A hereto.
The Company and each Purchaser agree that the sale of the Shares by the
Company and purchase of the Shares by such Purchaser is not contingent upon the
sale of Shares to and the purchase of Shares by any other Purchaser of Shares
hereunder.
The price at which the Shares shall be purchased from the Company by the
Purchaser shall be $_____ per share.
The Shares shall be delivered
in the following form:
-------------------------
Payment for the Shares shall be
made in the following funds:
-------------------------
The "time of purchase" shall be:
-------------------------
<PAGE>
-2-
The place(s) at which the Shares
shall be delivered and sold shall be:
-------------------------
Other terms: _________________________
Notices to each Purchaser shall be sent to the addresses or telecopier
number set forth next to its name on Schedule A hereto.
All of the provisions contained in the document entitled "New Century
Energies, Inc. Standard Purchase Provisions - Common Stock," a copy of which has
been previously furnished to each of the undersigned, are hereby incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
Each Purchaser hereby represents and warrants to the Company that (i) this
Purchase Agreement has been duly authorized, executed and delivered by the
Purchaser and constitutes a valid and legally binding obligation of the
Purchaser enforceable in accordance with its terms, except as may be limited by
applicable laws or equitable principles and except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles and (ii) the Purchaser is a "qualified institutional buyer"
as such term is defined in Rule 144A under the Act or affiliate thereof. Each
Purchaser agrees to pay its own fees and expenses in connection with its
purchase of the Shares hereunder.
<PAGE>
-3-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and each of the Purchasers listed
below in accordance with its terms.
Yours very truly,
[Purchaser Name]
By
-------------------------------------
Title:
------------------------------
[Purchaser Name]
By
-------------------------------------
Title:
------------------------------
The foregoing Purchase Agreement
is hereby confirmed as of the date
first above written
NEW CENTURY ENERGIES, INC.
By
-------------------------------------
Title:
------------------------------
<PAGE>
SCHEDULE A
Address and
Name of Purchasers Telcopier Number Number of Shares
Total ________________
----------------
EXHIBIT 5
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005
November 17, 1997
New Century Energies, Inc.
1225 17th Street
Denver, Colorado 80202
Re: New Century Energies, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for New Century Energies, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), with
respect to 9,000,000 shares of Common Stock, with a par value of one dollar
($1.00) per share, of the Company (the "Common Stock") and the related Preferred
Stock Purchase Rights (the "Rights").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Company and such other documents, certificates and corporate or other records as
we have deemed necessary or appropriate as a basis for the opinion 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.
We advise you that, in our opinion:
1. Assuming the Registration Statement had been declared effective and the
Board of Directors has adopted the appropriate resolutions, upon the issuance of
Common Stock and receipt by the Company of the consideration therefor, the
shares of Common Stock so issued will be legally issued, fully paid and
non-assessable.
2. The issuance of the Rights has been validly authorized by all necessary
corporate action on the part of the Company and, when issued in accordance with
the Rights Agreement, dated as of August 1, 1997 between the Company and The
Bank of New York, as Rights Agent, will be validly issued.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the
incorporation by reference of this opinion and consent as exhibits to any
registration statement filed in accordance with Rule 462(b) under the Act
relating to a sale of the Common Stock.
Very truly yours,
/s/ Cahill Gordon & Reindel
EXHIBIT 15(a)
LETTER ON UNAUDITED FINANCIAL INFORMATION
November 14, 1997
New Century Energies, Inc.:
We are aware that New Century Energies, Inc. has incorporated by reference in
this Registration Statement (Form S-3, File No. 333-______) pertaining to the
registration of New Century Energies, Inc. common stock, its Form 10-Qs for the
quarters ended March 31, 1997, June 30, 1997 and September 30, 1997, which
include our reports dated May 12, 1997, August 8, 1997 and November 10, 1997,
respectively, covering the unaudited consolidated condensed financial statements
contained therein. Pursuant to Regulation C of the Securities Act of 1933, these
reports are not considered a part of the Registration Statement prepared or
certified by our Firm or reports prepared or certified by our Firm within the
meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ Arthur Andersen LLP
EXHIBIT 15(b)
LETTER ON UNAUDITED FINANCIAL INFORMATION
November 14, 1997
Public Service Company of Colorado:
We are aware that Public Service Company of Colorado has incorporated by
reference in this Registration Statement (Form S-3, File No. 333-_____)
pertaining to the registration of New Century Energies, Inc. common stock, its
Form 10-Qs for the quarters ended March 31, 1997, June 30, 1997 and September
30, 1997, which include our reports dated May 12, 1997, August 8, 1997 and
November 10, 1997, respectively, covering the unaudited consolidated condensed
financial statements contained therein. Pursuant to Regulation C of the
Securities Act of 1933, those reports are not considered a part of the
Registration Statement prepared or certified by our Firm or reports prepared or
certified by our Firm within the meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ Arthur Andersen LLP
EXHIBIT 15(c)
LETTER ON UNAUDITED FINANCIAL INFORMATION
New Century Energies, Inc.:
We have reviewed, in accordance with standards established by the American
Institute of Certified Public Accountants, the unaudited condensed consolidated
interim financial information of Southwestern Public Service Company for the
periods ended November 30, 1996 and 1995, and February 28, 1997 and February 29,
1996, as indicated in our reports dated January 10, 1997, and April 11, 1997,
respectively; because we did not perform an audit, we expressed no opinion on
that information.
We are aware that our reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the quarters ended November 30, 1996, and
February 28, 1997, respectively, are being used in this Registration Statement.
We also are aware that the aforementioned reports, pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or reports prepared or
certified by an accountant within the meaning of Sections 7 and 11 of the Act.
/s/ Deloitte & Touche LLP
Dallas, Texas
November 17, 1997
EXHIBIT 15(d)
LETTER ON UNAUDITED FINANCIAL INFORMATION
November 14, 1997
Southwestern Public Service Company:
We are aware that Southwestern Public Service Company has incorporated by
reference in this Registration Statement (Form S-3, File No. 333-_____)
pertaining to the registration of New Century Energies, Inc. common stock, its
Form 10-Qs for the quarters ended March 31, 1997, June 30, 1997 and September
30, 1997, which include our reports dated June 5, 1997, August 8, 1997 and
November 10, 1997, respectively, covering the unaudited consolidated condensed
financial statements contained therein. Pursuant to Regulation C of the
Securities Act of 1933, those reports are not considered a part of the
Registration Statement prepared or certified by our Firm or reports prepared or
certified by our Firm within the meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ Arthur Andersen LLP
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated August 1, 1997,
included in the New Century Energies, Inc. Form 8-K as of August 1, 1997 for the
year ended December 31, 1996, our report dated February 6, 1997, included in the
New Century Energies, Inc. Form 10-K for the year ended December 31, 1996, our
report dated February 24, 1997, included in the Public Service Company of
Colorado Form 10-K for the year ended December 31, 1996, and to the use in this
registration statement of our report dated December 11, 1995, included in the
NCE Joint Proxy Statement/Prospectus and Registration Statement on Form S-4,
covering the balance sheet of New Century Energies, Inc. as of October 31, 1995,
and to all references to our Firm included in this registration statement.
Denver, Colorado
November 14, 1997 /s/ Arthur Andersen LLP
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
New Century Energies, Inc. on Form S-3 of our report dated October 10, 1996,
appearing in the Annual Report on Form 10-K of Southwestern Public Service
Company for the year ended August 31, 1996 and our reports dated February 28,
1997, appearing in the Transition Report on Form 10-K of Southwestern Public
Service Company for the four months ended December 31, 1996 and appearing in the
Current Report on Form 8-K of New Century Energies, Inc. dated August 1, 1997
and to the reference to us as experts.
/s/ Deloitte & Touche LLP
Dallas, Texas
November 17, 1997
EXHIBIT 24
The undersigned, Bill D. Helton, a Director of New Century Energies, Inc.
("NCE"), a Delaware corporation, in connection with any filing by NCE with the
Securities and Exchange commission under the Securities Act of 1933, as amended,
of a registration statement to register NCE's Common Stock, $1 par value, hereby
constitutes and appoints Bill D. Helton, Wayne H. Brunetti, Richard C. Kelly,
and James D. Steinhilper, 1225 17th Street, Denver, Colorado, and each of them
as attorney-in-fact, with full power of substitution and resubstitution in the
premises, for him and in his name, place, and stead to sign with or without the
other in any capacities and file any registration statement and any amendments
and other documents related thereto, granting unto each attorney-in-fact full
power and authority to do and perform any act necessary to be done in and about
the premises as fully to all intents and purposes as he might or could do in
person, hereby ratifying the acts of each attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 6th day
of November, 1997.
/s/ Bill D. Helton
------------------------------
Bill D. Helton
<PAGE>
The undersigned, Wayne H. Brunetti, a Director of New Century Energies,
Inc. ("NCE"), a Delaware corporation, in connection with any filing by NCE with
the Securities and Exchange commission under the Securities Act of 1933, as
amended, of a registration statement to register NCE's Common Stock, $1 par
value, hereby constitutes and appoints Bill D. Helton, Wayne H. Brunetti,
Richard C. Kelly, and James D. Steinhilper, 1225 17th Street, Denver, Colorado,
and each of them as attorney-in-fact, with full power of substitution and
resubstitution in the premises, for him and in his name, place, and stead to
sign with or without the other in any capacities and file any registration
statement and any amendments and other documents related thereto, granting unto
each attorney-in-fact full power and authority to do and perform any act
necessary to be done in and about the premises as fully to all intents and
purposes as he might or could do in person, hereby ratifying the acts of each
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 5th day
of November, 1997.
/s/ Wayne H. Brunetti
------------------------------
Wayne H. Brunetti
<PAGE>
The undersigned, C. Coney Burgess, a Director of New Century Energies, Inc.
("NCE"), a Delaware corporation, in connection with any filing by NCE with the
Securities and Exchange commission under the Securities Act of 1933, as amended,
of a registration statement to register NCE's Common Stock, $1 par value, hereby
constitutes and appoints Bill D. Helton, Wayne H. Brunetti, Richard C. Kelly,
and James D. Steinhilper, 1225 17th Street, Denver, Colorado, and each of them
as attorney-in-fact, with full power of substitution and resubstitution in the
premises, for him and in his name, place, and stead to sign with or without the
other in any capacities and file any registration statement and any amendments
and other documents related thereto, granting unto each attorney-in-fact full
power and authority to do and perform any act necessary to be done in and about
the premises as fully to all intents and purposes as he might or could do in
person, hereby ratifying the acts of each attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of November, 1997.
/s/ C. Coney Burgess
------------------------------
C. Coney Burgess
<PAGE>
The undersigned, A. Barry Hirschfeld, a Director of New Century Energies,
Inc. ("NCE"), a Delaware corporation, in connection with any filing by NCE with
the Securities and Exchange commission under the Securities Act of 1933, as
amended, of a registration statement to register NCE's Common Stock, $1 par
value, hereby constitutes and appoints Bill D. Helton, Wayne H. Brunetti,
Richard C. Kelly, and James D. Steinhilper, 1225 17th Street, Denver, Colorado,
and each of them as attorney-in-fact, with full power of substitution and
resubstitution in the premises, for him and in his name, place, and stead to
sign with or without the other in any capacities and file any registration
statement and any amendments and other documents related thereto, granting unto
each attorney-in-fact full power and authority to do and perform any act
necessary to be done in and about the premises as fully to all intents and
purposes as he might or could do in person, hereby ratifying the acts of each
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of November, 1997.
/s/ A. Barry Hirschfeld
------------------------------
A. Barry Hirschfeld
<PAGE>
The undersigned, Will F. Nicholson, Jr., a Director of New Century
Energies, Inc. ("NCE"), a Delaware corporation, in connection with any filing by
NCE with the Securities and Exchange commission under the Securities Act of
1933, as amended, of a registration statement to register NCE's Common Stock, $1
par value, hereby constitutes and appoints Bill D. Helton, Wayne H. Brunetti,
Richard C. Kelly, and James D. Steinhilper, 1225 17th Street, Denver, Colorado,
and each of them as attorney-in-fact, with full power of substitution and
resubstitution in the premises, for him and in his name, place, and stead to
sign with or without the other in any capacities and file any registration
statement and any amendments and other documents related thereto, granting unto
each attorney-in-fact full power and authority to do and perform any act
necessary to be done in and about the premises as fully to all intents and
purposes as he might or could do in person, hereby ratifying the acts of each
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of November, 1997.
/s/ Will F. Nicholson, Jr.
------------------------------
Will F. Nicholson, Jr.
<PAGE>
The undersigned, J. Michael Powers, a Director of New Century Energies,
Inc. ("NCE"), a Delaware corporation, in connection with any filing by NCE with
the Securities and Exchange commission under the Securities Act of 1933, as
amended, of a registration statement to register NCE's Common Stock, $1 par
value, hereby constitutes and appoints Bill D. Helton, Wayne H. Brunetti,
Richard C. Kelly, and James D. Steinhilper, 1225 17th Street, Denver, Colorado,
and each of them as attorney-in-fact, with full power of substitution and
resubstitution in the premises, for him and in his name, place, and stead to
sign with or without the other in any capacities and file any registration
statement and any amendments and other documents related thereto, granting unto
each attorney-in-fact full power and authority to do and perform any act
necessary to be done in and about the premises as fully to all intents and
purposes as he might or could do in person, hereby ratifying the acts of each
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 11th day
of November, 1997.
/s/ J. Michael Powers
------------------------------
J. Michael Powers
<PAGE>
The undersigned, W. Thomas Stephens, a Director of New Century Energies,
Inc. ("NCE"), a Delaware corporation, in connection with any filing by NCE with
the Securities and Exchange commission under the Securities Act of 1933, as
amended, of a registration statement to register NCE's Common Stock, $1 par
value, hereby constitutes and appoints Bill D. Helton, Wayne H. Brunetti,
Richard C. Kelly, and James D. Steinhilper, 1225 17th Street, Denver, Colorado,
and each of them as attorney-in-fact, with full power of substitution and
resubstitution in the premises, for him and in his name, place, and stead to
sign with or without the other in any capacities and file any registration
statement and any amendments and other documents related thereto, granting unto
each attorney-in-fact full power and authority to do and perform any act
necessary to be done in and about the premises as fully to all intents and
purposes as he might or could do in person, hereby ratifying the acts of each
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 12th day
of November, 1997.
/s/ W. Thomas Stephens
------------------------------
W. Thomas Stephens
<PAGE>
The undersigned, Robert G. Tointon, a Director of New Century Energies,
Inc. ("NCE"), a Delaware corporation, in connection with any filing by NCE with
the Securities and Exchange commission under the Securities Act of 1933, as
amended, of a registration statement to register NCE's Common Stock, $1 par
value, hereby constitutes and appoints Bill D. Helton, Wayne H. Brunetti,
Richard C. Kelly, and James D. Steinhilper, 1225 17th Street, Denver, Colorado,
and each of them as attorney-in-fact, with full power of substitution and
resubstitution in the premises, for him and in his name, place, and stead to
sign with or without the other in any capacities and file any registration
statement and any amendments and other documents related thereto, granting unto
each attorney-in-fact full power and authority to do and perform any act
necessary to be done in and about the premises as fully to all intents and
purposes as he might or could do in person, hereby ratifying the acts of each
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 6th day
of November, 1997.
/s/ Robert G. Tointon
------------------------------
Robert G. Tointon
