Exhibit 1(a)
NEW CENTURY ENERGIES, INC.
COMMON STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF UNDERWRITTEN PURCHASE AGREEMENT
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-
-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.
-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.
-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-
-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-
-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
-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).
-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;
-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
-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
-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
-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.
-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-
-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
-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-
-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., 0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, 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.
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
"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:
-------------------------
-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.
-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.
SCHEDULE A
Number
of
Name of Underwriters Firm Shares
-------------------- -----------
Total ------------
------------
