Exhibit 1(b)
NEW CENTURY ENERGIES, INC.
COMMON STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT - DIRECT SALES
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"
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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
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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
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(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
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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., 0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, 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.
NEW CENTURY ENERGIES, INC.
PURCHASE AGREEMENT
COMMON STOCK
New Century Energies, Inc.
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
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:
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Payment for the Shares shall be
made in the following funds:
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The "time of purchase" shall be:
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The place(s) at which the Shares
shall be delivered and sold shall be:
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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.
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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
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Title:
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[Purchaser Name]
By
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Title:
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The foregoing Purchase Agreement
is hereby confirmed as of the date
first above written
NEW CENTURY ENERGIES, INC.
By
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Title:
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SCHEDULE A
Address and
Name of Purchasers Telcopier Number Number of Shares
Total ________________
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