-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SWp3+h3OXrJ6GHOsNYrUv32DVXcvFFsdUhkmA0+j/Ir0iESW4TshqawYEAVVYrhE fFrOWfqs6HzBxiopsORwyA== 0000950162-97-000562.txt : 19970812 0000950162-97-000562.hdr.sgml : 19970812 ACCESSION NUMBER: 0000950162-97-000562 CONFORMED SUBMISSION TYPE: 35-CERT PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970811 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW CENTURY ENERGIES INC CENTRAL INDEX KEY: 0001004858 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 841334327 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 35-CERT SEC ACT: 1935 Act SEC FILE NUMBER: 070-08787 FILM NUMBER: 97655823 BUSINESS ADDRESS: STREET 1: 1225 17TH ST CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 3032948989 MAIL ADDRESS: STREET 1: 1225 17TH ST CITY: DENVER STATE: CO ZIP: 80202 35-CERT 1 CERTIFICATE OF NOTIFICATION SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 - -----------------------------------x : In the Matter of : : CERTIFICATE New Century Energies, Inc. : : OF File No. 70-8787 : : NOTIFICATION (Public Utility Holding Company : Act of 1935) : : : - -----------------------------------x This Certificate of Notification is filed by New Century Energies, Inc. ("NCE"), a Delaware corporation, in connection with the following transactions proposed in NCE's Form U-1 Application-Declaration, as amended (the "Application-Declaration"), and authorized by the order of the Securities and Exchange Commission (the "Commission") dated August 1, 1997 (the "Order"), in this file: (i) the merger of PSCo Merger Corp. ("PSC Sub") with and into Public Service Company of Colorado ("PSCo") and the merger of SPS Merger Corp. ("SPS Sub") with and into Southwestern Public Service Company ("SPS"), and the resulting acquisition of ownership by NCE of all issued and outstanding shares of common stock of PSCo and SPS; (ii) the issuance of NCE Common Stock in connection with such mergers pursuant to the Merger Agreement; (iii)the acquisition by NCE of all of the issued and outstanding shares of common stock of (a) NC Enterprises, Inc. ("NC Enterprises"), to serve as a subholding company for certain of the NCE system's non-utility companies and interests, (b) New Century Services, Inc. ("NC Services"), to serve as the service company for the NCE system, (c) Cheyenne Light, Fuel and Power Company ("Cheyenne"), a public utility company and formerly a wholly-owned subsidiary of PSCo, and (d) WestGas Interstate, Inc. ("WGI"), a former wholly-owned subsidiary of PSCo engaged in the gas transportation business; and (iv) the direct acquisition by NC Enterprises of the common stock of e prime, inc., Quixx Corporation, Util- ity Engineering Corporation and Natural Fuels Corporation, and the indirect acquisition by NC Enterprises of the subsidiaries of those companies, pursuant to the realignment of certain of the NCE system's non-utility companies and interests under NC Enterprises as a subholding company. Filed herewith are conformed copies of the final opinions of counsel indexed as Exhibit F-2 to the Application-Declaration. Capitalized terms used herein without definition have the meanings ascribed to them in the Application-Declaration. 1. On August 1, 1997, articles of merger were duly and validly filed with the Secretary of State of the State of Colorado, thereby merging PSC Sub with and into PSCo, and articles of merger were duly and validly filed with the State Corporation Commission of the State of New Mexico, thereby merging SPS Sub with and into SPS. As a result of such mergers, PSCo and SPS became subsidiaries of NCE. 2. On August 1, 1997, PSCo paid a dividend to NCE consisting of all issued and outstanding shares of capital stock of Cheyenne and WestGas. 3. On August 1, 1997, each of PSCo and SPS paid a dividend to NCE consisting of all shares of common stock of NC Services held by each of them, constituting all the issued and outstanding shares of capital stock of NC Services. 4. On August 1, 1997, ownership of the issued and outstanding shares of capital stock of e prime, inc. and Natural Fuels Corporation, formerly subsidiaries of PSCo, were transferred to NC Enterprises. 5. On August 1, 1997, the issued and outstading shares of capital stock of Quixx Corporation and Utility Engineering Corporation were transferred by SPS to NC Enterprises in return for promissory notes of NC Enterprises in amounts equal to the fair value of the transferred subsidiaries. 6. Upon the consummation of the mergers of PSC Sub into PSCo and SPS Sub into SPS on August 1, 1997, in accordance with the Merger Agreement, each issued and outstanding share of PSCo Common Stock was converted into the right to receive one share of NCE Common Stock, and each issued and outstanding share of SPS Common Stock was converted into the right to receive .95 of one share of NCE Common Stock. 7. On August 1, 1997, NC Services entered into individual service agreements (in the form of Exhibits B-2.1, B- -2- 2.2 and B-3 to the Application-Declaration) with NCE and various of its direct and indirect subsidiaries. 8. The transactions described in paragraphs 1 through 7 have been carried out in accordance with the terms and conditions of, and for the purposes requested in, the Application-Declaration, and in accordance with the terms and conditions of the Order. -3- S I G N A T U R E Pursuant to the requirements of the Public Utility Holding Company Act of 1935, as amended, the undersigned company has duly caused this document to be signed on its behalf by the undersigned thereunto duly authorized. New Century Energies, Inc. By: /s/ Richard C. Kelly -------------------------- Richard C. Kelly Senior Vice President- Finance, Treasurer and Chief Financial Officer Dated: August 11, 1997 -4- EXHIBIT INDEX Exhibit Transmission Number Exhibit Method 1 Past-Tense Opinion of Patricia T. Smith Electronic (Exhibit F-2 to the Application-Declaration) 2 Past-Tense Opinion of Cahill Gordon & Electronic Reindel (Exhibit F-2 to the Application-Declaration) -5- EX-1 2 PAST-TENSE OPINION OF PATRICIA T. SMITH EXHIBIT F-2 Public Service Company of Colorado 1225 Seventeenth Street Denver, Colorado 80202 August 11, 1997 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: New Century Energies, Inc. Form U-1 Application-Declaration (File No. 70-8787) Dear Sirs: I refer to the Form U-1 Application-Declaration, as amended (the "Application"), under the Public Utility Holding Company Act of 1935, as amended (the "Act"), filed with the Securities and Exchange Commission (the "Commission") by New Century Energies, Inc. ("NCE"), a Delaware corporation. Capitalized terms used in this letter without definition have the meanings ascribed to such terms in the Application. The Application sought authorization and approval for a number of transactions, including: (i) the acquisition by NCE of all of the issued and outstanding common stock of Public Service Company of Colorado ("PSCo") by means of the merger of PSCo and PSCo Merger Corp., of Southwestern Public Service Company ("SPS") by means of the merger of SPS and SPS Merger Corp., of Cheyenne Light, Fuel and Power Company ("Cheyenne") by the declaration of a dividend of all the outstanding common stock of Cheyenne by PSCo to NCE, of PS Colorado Credit Corporation ("PSCCC") by declaration of a dividend of all PSCCC's outstanding common stock by PSCo to NCE and of West Gas Interstate, Inc. ("WGI") by the declaration of a dividend of all WGI's outstanding common stock by PSCo to NCE; (ii) the establishment by NCE of a new subsidiary, New Century Services, Inc. ("NC Services"), the Utility Service Agreement and the Non-Utility Service Agreement as -2- a basis for NC Services to comply with Section 13 of the Act and the Commission's rules thereunder; (iii) the establishment by NCE of a new subsidiary, NC Enterprises, Inc. ("NC Enterprises"), to serve as a holding company for certain of the NCE system's non-utility interests, and the acquisition by NC Enterprises of the stock and other voting equity of such non-utility interests including (a) certain subsidiaries of PSCo by the declaration of a dividend of their stock by PSCo to NCE and a subsequent capital contribution by NCE to NC Enterprises and (b) all the subsidiaries of SPS through the sale by SPS of all of their outstanding common stock to NC Enterprises in exchange for debt; and (iv) the issuance of NCE Common Stock to the shareholders of PSCo and SPS in connection with the mergers described in clause (i) above ((i) through (iv) collectively, the "Transactions"). I have acted as counsel for NCE and PSCo in connection with the Application and, as such counsel, I am familiar with the corporate proceedings taken by NCE, PSCo, PSCo Merger Corp., NC Services and NC Enterprises in connection with the Transactions as described in the Application. I am familiar with or have reviewed those corporate records of NCE, PSCo, PSCo Merger Corp., NC Services and NC Enterprises, certificates of public officials, certificates of officers and representatives of NCE, PSCo, PSCo Merger Corp., NC Services and NC Enterprises, and other documents as I have deemed necessary to examine as a basis for the opinions hereinafter expressed. In such review, I have assumed the genuineness of all signatures and the authenticity of all documents submitted to me as originals and the conformity with the originals of all documents submitted to me as copies. As to various questions of fact material to such opinions I have, when relevant facts were not independently established, relied upon certificates of officers of NCE, PSCo, PSCo Merger Corp., NC Services and NC Enterprises and other appropriate persons and statements contained in the Application and the exhibits thereto. Based upon the foregoing and having regard to legal considerations which I deem relevant, I am of the opinion that: -3- 1. The laws of the states of Colorado and Wyoming applicable to the proposed Transactions will have been complied with. 2. Each of NCE, NC Services and NC Enterprises is validly organized and duly existing under the laws of the State of Delaware; PSCo is validly organized and duly existing under the laws of the State of Colorado; Cheyenne is validly organized and duly existing under the laws of the State of Wyoming; PSCo Merger Corp. wasfollowing the validly organized and duly existing under the laws of the State of Colorado and has been merged into PSCo; and each non-utility company whose securities were acquired by NCE or NC Enterprises from PSCo or its subsidiaries is validly organized and duly existing under the laws of the respective state of incorporation. 3. The shares of NCE Common Stock issued in connection with the proposed Transactions have been validly issued and are fully paid and nonassessable, and the holders thereof are entitled to the rights and privileges appertaining thereto set forth in the Restated Certificate of Incorporation of NCE. The shares of common stock of PSCo issued to NCE in connection with the merger of PSCo Merger Corp. with and into PSCo have been validly issued and are fully paid and nonassessable, and NCE, as the holder thereof, is entitled to the rights and privileges appertaining thereto set forth in the Certificate of Incorporation of PSCo. The shares of common stock of NC Enterprises and NC Services issued to NCE in connection with the establishment of NC Enterprises and NC Services as subsidiaries of NCE, respectively, have been validly issued and are fully paid and nonassessable, and NCE, as the holder thereof, is entitled to the rights and privileges appertaining thereto set forth in the instrument of incorporation of each of NC Enterprises and NC Services. The shares of common stock acquired by NC Enterprises from PSCo or its subsidiaries as a holding company for certain non-utility subsidiary companies of the NCE System have been validly issued and are fully paid and nonassessable, and NC Enterprises or NCE, as the case may be, as the respective holders thereof, are entitled to the rights and privileges appertaining thereto set forth in the respective charters and other governing documents of such companies. 4. NCE has legally acquired (a) the shares of common stock of PSCo that were issued to NCE in connection -4- with the merger of PSCo Merger Corp. with and into PSCo, (b) the shares of common stock of Cheyenne by means of a dividend by PSCo of all of the stock of Cheyenne to NCE, (c) the shares of stock of West Gas Interstate, Inc. by means of a dividend by PSCo of all of its stock to NCE, and (d) the shares of NC Enterprises and NC Services that were issued to NCE in connection with the organization of NC Enterprises and NC Services, as the case may be. NC Enterprises has legally acquired the shares of stock of the subsidiary companies of PSCo or its subsidiaries for which it will serve as a holding company. 5. The consummation of the proposed Transactions will not violate the legal rights of the holders of any securities issued by NCE, NC Services, NC Enterprises, or PSCo or its subsidiaries. 6. The Transactions have been carried out in accordance with the Application. I have acted as counsel for NCE and PSCo in connection with the Application and, accordingly, this opinion is limited to actions taken by NCE, PSCo (and its subsidiaries prior to the Transactions), PSCo Merger Corp., NC Services, and NC Enterprises in connection with the Transactions as described in the Application. With respect to compliance with all other applicable state laws, the corporate proceedings of any other parties to the Transactions, including the issuance, sale, or acquisition of securities by such parties, or the absence of the violation of the legal rights of the holders of securities of such parties, I refer tot he opinion of Cahill Gordon & Reindel filed concurrently herewith. I hereby consent to the use of this opinion as an exhibit to the Application. Very truly yours, Patricia T. Smith EX-2 3 PAST-TENSE OPINION OF CAHILL GORDON & REINDEL EXHIBIT F-2 Cahill Gordon & Reindel 80 Pine Street New York, New York 10005 August 11, 1997 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: New Century Energies, Inc. Form U-1 Application-Declaration (File No. 70-8787) Dear Sirs: We refer to the Form U-1 Application-Declaration, as amended (the "Application"), under the Public Utility Holding Company Act of 1935, as amended (the "Act"), filed with the Securities and Exchange Commission (the "Commission") by New Century Energies, Inc. ("NCE"), a Delaware corporation. Capitalized terms used in this letter without definition have the meanings ascribed to such terms in the Application. The Application sought authorization and approval for a number of transactions, including: (i) the acquisition by NCE of all of the issued and outstanding common stock of Public Service Company of Colorado ("PSCo") by means of the merger of PSCo and PSCo Merger Corp., of Southwestern Public Service Company ("SPS) by means of the merger of SPS and SPS Merger Corp., of Cheyenne Light, Fuel and Power Company ("Cheyenne") by the declaration of a dividend of all the outstanding common stock of Cheyenne by PSCo to NCE, of PS Colorado Credit Corporation ("PSCCC") by the declaration of a dividend of all PSCCC's outstanding common stock by PSCo to NCE and of West Gas Interstate, Inc. ("WGI") by the declaration of a dividend of all WGI's outstanding common stock by PSCo to NCE; (ii) the acquisition by NCE of all of the issued and outstanding common stock of New Century Services, Inc. ("NC Services"), the Utility Service Agreement and the Non-Utility Service Agreement as a basis for NC Services -2- to comply with Section 13 of the Act and the Commission's rules thereunder; (iii) the establishment by NCE of a new subsidiary, NC Enterprises, Inc. ("NC Enterprises"), to serve as a holding company for certain of the NCE system's non-utility interests, and the acquisition by NC Enterprises of the stock and other voting equity of such non-utility interests including (a) certain subsidiaries of PSCo by the declaration of a dividend of their stock by PSCo to NCE and a subsequent capital contribution by NCE to NC Enterprises and (b) all the subsidiaries of SPS through the sale by SPS of all of their outstanding common stock to NC Enterprises in exchange for debt; and (iv) the issuance of NCE Common Stock to the shareholders of PSCo and SPS in connection with the mergers described in clause (i) above; ((i) through (iv) collectively, the "Transactions"). We have acted as special counsel for NCE and SPS in connection with the Application and, as such counsel, we are familiar with the corporate proceedings taken by NCE, SPS, SPS Merger Corp., NC Services and NC Enterprises in connection with the Transactions as described in the Application. We have examined originals, or copies certified to our satisfaction, of such corporate records of NCE, SPS, SPS Merger Corp., NC Services and NC Enterprises, certificates of public officials, certificates of officers and representatives of NCE, SPS, SPS Merger Corp., NC Services and NC Enterprises, and other documents as we have deemed necessary to examine as a basis for the opinions hereinafter expressed. In such examination we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. As to various questions of fact material to such opinions we have, when relevant facts were not independently established, relied upon certificates of officers of NCE, SPS, SPS Merger Corp., NC Services and NC Enterprises and other appropriate persons and statements contained in the Application and the exhibits thereto. Based upon the foregoing and having regard to legal considerations which we deem relevant, we are of the opinion that: -3- 1. The laws of the states of New Mexico, Texas and Kansas applicable to the proposed Transactions have been complied with. 2. Each of NCE, NC Services and NC Enterprises is validly organized and duly existing under the laws of the State of Delaware; SPS is validly organized and duly existing under the laws of the State of New Mexico; SPS Merger Corp. was validly organized and duly existing under the laws of the State of New Mexico and has been merged into SPS; and each non-utility company whose securities were acquired by NC Enterprises from SPS is validly organized and duly existing under the laws of their respective states of incorporation. 3. The shares of NCE Common Stock issued in connection with the proposed Transactions have been validly issued and are fully paid and nonassessable, and the holders thereof are entitled to the rights and privileges appertaining thereto set forth in the Restated Certificate of Incorporation of NCE. The shares of common stock of SPS issued to NCE in connection with the merger of SPS Merger Corp. with and into SPS have been validly issued and are fully paid and nonassessable, and NCE, as the holder thereof, is entitled to the rights and privileges appertaining thereto set forth in the Restated Articles of Incorporation of SPS. The shares of common stock of NC Enterprises and NC Services issued to NCE in connection with the establishment of NC Enterprises and NC Services as subsidiaries of NCE, respectively, have been validly issued and are fully paid and nonassessable, and NCE, as the holder thereof, is entitled to the rights and privileges appertaining thereto set forth in the instrument of incorporation of each of NC Enterprises and NC Services. The shares of common stock acquired by NC Enterprises from SPS as a holding company for certain non-utility subsidiary companies of the NCE system have been validly issued and are fully paid and nonassessable, and NC Enterprises, as the holder thereof, is entitled to the rights and privileges appertaining thereto set forth in the respective charters and other governing documents of such companies. 4. NCE has legally acquired (a) the shares of common stock of SPS that were issued to NCE in connection with the merger of SPS Merger Corp. with and into SPS, and (b) the shares of NC Enterprises and NC Services that were issued to NCE in connection with the Transactions. NC Enterprises has legally acquired the shares of stock of the -4- subsidiary companies of SPS for which it serves as a holding company. 5. The consummation of the proposed Transactions will not violate the legal rights of the holders of any securities issued by NCE, NC Services, NC Enterprises or SPS or its subsidiaries. 6. The Transactions have been carried out in accordance with the Application. We have acted as special counsel for NCE and SPS in connection with the Application and, accordingly, this opinion is limited to actions taken by NCE, SPS (and its subsidiaries prior to the Transactions), SPS Merger Corp., NC Services and NC Enterprises in connection with the Transactions as described in the Application. With respect to compliance with all other applicable state laws, the corporate proceedings of any other parties to the Transactions, including the issuance, sale or acquisition of securities by such parties, or the absence of the violation of the legal rights of the holders of securities of such parties, we refer to the opinion of Patricia T. Smith filed concurrently herewith. We hereby consent to the use of this opinion as an exhibit to the Application. Very truly yours, Cahill Gordon & Reindel -----END PRIVACY-ENHANCED MESSAGE-----