As filed with the Securities and Exchange Commission on October 30, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SOUTHERN ENERGY, INC.
(Exact name of registrant as specified in its charter)
Delaware 58-2056305
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1155 Perimeter Center West, Suite 100 30338
Atlanta, Georgia (Zip Code)
(Address of principal executive offices)
SOUTHERN ENERGY OMNIBUS INCENTIVE COMPENSATION PLAN
SOUTHERN ENERGY EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Raymond D. Hill
Chief Financial Officer
Southern Energy, Inc.
1155 Perimeter Center West, Suite 100
Atlanta, Georgia 30338
(Name and address of agent for service)
(770) 821-7000
(Telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all
orders, notices and communications to:
John T. W. Mercer
Troutman Sanders LLP
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================ =================== ===================== ===================== ===================
Amount Proposed Proposed Amount of
Title of Each Class of to be Maximum Maximum Registration
Securities to be Registered Registered (1) Offering Price Aggregate Fee
per Share Offering Price
------------------------------------------------ ------------------- --------------------- --------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share to be 8,895,815 shares $17.27 $153,630,725.00 $40,558.51
issued under the Southern Energy Omnibus
Incentive Compensation Plan (2)
------------------------------------------------ ------------------- --------------------- --------------------- -------------------
Common Stock, par value $0.01 per share to be 23,104,185 shares $24.125 $557,388,463.10 $147,150.55
issued under the Southern Energy Omnibus
Incentive Compensation Plan( 3)
------------------------------------------------ ------------------- --------------------- --------------------- -------------------
Common Stock, par value $0.01 per share 4,000,000 shares $24.125 $96,500,000.00 $25,476.00
Southern Energy Employee Stock Purchase Plan
(4)
================================================ =================== ===================== ===================== ===================
Total 36,000,000 shares -- $213,185.06
================================================ =================== ===================== ===================== ===================
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, the
registration statement covers an indeterminate number of additional shares
that may be offered and issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(2) Pursuant to Rule 457(h)(1) under the Securities Act, and solely for the
purpose of calculating the registration fee, the offering price for shares
subject to options that have been approved is estimated based upon the
weighted average of the various exercise prices for such shares, which is
$17.27 per share.
(3) Pursuant to Rule 457(h)(1) under the Securities Act, and solely for the
purpose of calculating the registration fee, the offering price for shares
subject to options that have not yet been approved is based upon the
average of the high and low prices reported on the New York Stock Exchange
of Southern Energy common stock on October 26, 2000.
(4) Pursuant to Rule 457(h)(1) under the Securities Act, and solely for the
purpose of calculating the registration fee, the offering price for shares
to be sold under the Southern Energy Employee Stock Purchase Plan is based
upon the average of the high and low prices reported on the New York Stock
Exchange of Southern Energy common stock on October 26, 2000.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
registration statement:
(a) The prospectus (the "Prospectus") filed by Southern Energy, Inc.
("Southern Energy" or the "registrant") with the Securities and
Exchange Commission (the "Commission") on September 27, 2000
pursuant to Rule 424(b) under the Securities Act of 1933, as
amended, (the "Securities Act"), with respect to Southern Energy's
registration statement on Form S-1 (Registration No. 333-35390).
(b) The description of the common stock contained in Southern Energy's
registration statement on Form 8-A filed with the Commission on
September 7, 2000.
(c) All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
in this registration statement and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein by reference modified or superseded such prior statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of Title 8 of the Delaware Code gives a corporation power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the person is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The same Section also gives a corporation power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Also, the Section states that, to the extent that a present
or former director or officer of a corporation has been successful on the merits
or otherwise in defense of any such action, suit or proceeding listed above, or
in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
Article NINTH of the Certificate of Incorporation of Southern Energy
provides that a director of Southern Energy shall not be liable to Southern
Energy or its stockholders for monetary damages for breach of fiduciary duty as
a director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation Law
as currently in effect or as the same may hereafter be amended. No amendment,
modification or repeal of Article NINTH shall adversely affect any right or
protection of a director with respect to events occurring prior to such
amendment, modification or repeal.
Section 6.4 of the By-Laws of Southern Energy provides that Southern
Energy (for purposes of this paragraph, the "Corporation") shall indemnify to
the full extent permitted by law any person made or threatened to be made a
party to any action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that such person or such person's
testator or intestate is or was a director or officer of the Corporation or
serves or served at the request of the Corporation any other enterprise as a
director or officer. Expenses, including attorneys' fees, incurred by any such
person in defending any such action, suit or proceeding shall be paid or
reimbursed by the Corporation promptly upon receipt by it of an undertaking of
or on behalf of such person to repay such amounts if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation. The rights provided to any person by Section 6.4 shall be
enforceable against the Corporation by such person who shall be presumed to have
relied upon it in serving or continuing to serve as a director or officer as
provided above. No amendment of Section 6.4 shall impair the rights of any
person arising at any time with respect to events occurring prior to such
amendment. For purposes of Section 6.4 and this paragraph, the term
"Corporation" includes any predecessor of the Corporation and any constituent
corporation (including any constituent of a constituent) absorbed by the
Corporation in a consolidation or merger; the term "other enterprise," shall
include any corporation, partnership, joint venture, trust or employee benefit
plan; service "at the request of the Corporation" shall include service as a
director, officer or employee of the Corporation which imposes duties on, or
involves services by, such director, officer or employee with respect to an
employee benefit plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan shall be deemed to
be indemnifiable expenses; and action by a person with respect to an employee
benefit plan which such person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be action not
opposed to the best interests of the Corporation.
All of Southern Energy's directors and officers will be covered by
insurance policies against certain liabilities for actions taken in their
capacities as such, including liabilities under the Securities Act of 1933, as
amended.
Between the initial public offering of Southern Energy's common stock
and the distribution of Southern Energy's common stock by Southern Company, the
directors and officers of Southern Energy will be insured by the Southern
Company directors and officers liability insurance program. Upon the
distribution of Southern Energy's common stock by Southern Company, Southern
Energy will effect a separate insurance program for its directors and officers
and Southern Company will retain its current program for its respective
directors and officers. Any historic liabilities of the Southern Energy
directors and officers arising from wrongful acts prior to distribution shall
remain insured by the Southern Company directors and officers liability
insurance program.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
4.1 Restated Certificate of Incorporation of Southern
Energy (incorporated by reference to Exhibit 3.1 to
Southern Energy's registration statement on Form S-1
(No. 333-35390))
4.2 Bylaws of Southern Energy (incorporated by reference to
Exhibit 3.2 to Southern Energy's registration statement on
Form S-1 (No. 333-35390))
4.3 Specimen Stock Certificate (incorporated by reference to
Exhibit 4.1 to Southern Energy's registration statement on
Form S-1 (No. 333-35390))
4.4 Southern Energy Omnibus Incentive Compensation Plan
(incorporated by reference to Exhibit 10.10 to
Southern Energy's registration statement on Form S-1
(No. 333-35390))
4.5 Southern Energy Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.9 to Southern Energy's registration
statement on Form S-1 (No. 333-35390))
5 Opinion of Troutman Sanders LLP, counsel to Southern Energy.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of KPMG Deutsche Treuhand-Gesellschaft.
23.3 Consent of PricewaterhouseCoopers.
23.4 The consent of Troutman Sanders LLP is contained in Exhibit 5.
24 Powers of Attorney (included on the signature page to this
registration statement)
Exhibits listed above which have heretofore been filed with the
Securities and Exchange Commission and which were designated as noted above are
hereby incorporated herein by reference and made a part hereof with the same
effect as if filed herewith.
Item 9. Undertakings.
(a) Undertaking related to Rule 415 offering:
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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) 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 and 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 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) 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 (a)(1)(i) and (a)
(1)(ii) do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3 and the information required to
be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, 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.
(b) Undertaking relating to filings incorporating subsequent
Securities Exchange Act of 1934 documents by reference:
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) 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.
(c) Undertaking relating filing of registration statement on Form S-8:
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant 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
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
<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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on October 27, 2000.
SOUTHERN ENERGY, INC.
By: /s/ S. Marce Fuller
S. Marce Fuller
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Southern Energy, Inc.,
hereby severally constitute and appoint S. Marce Fuller, President and Chief
Executive Officer, Raymond D. Hill, Executive Vice President and Chief Financial
Officer, Douglas L. Miller, Senior Vice President and General Counsel, and
Elizabeth B. Chandler, Vice President and Secretary, and each of then singly,
our true and lawful attorneys with full power to them, and each of them singly,
to sign for us and in our names in the capacities indicated below, the
registration statement on Form S-8 filed herewith and any and all pre-effective
and post-effective amendments to said registration statement, and generally to
do all such things in our names and on our behalf in our capacities as officers
and directors to enable Southern Energy, Inc. to comply with the provisions of
the Securities Act of 1933, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys or any of them, to said registration statement and any and
all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ S. Marce Fuller President, Chief Executive Officer Oct. 27, 2000
------------------- and Director (Principal Executive Officer)
S. Marce Fuller
/s/ Raymond D. Hill Executive Vice President and Oct. 27, 2000
------------------- Chief Financial Officer
Raymond D. Hill (Principal Financial Officer)
/s/ James A. Ward Senior Vice President, Finance and Oct. 27, 2000
----------------- Accounting (Principal Accounting Officer)
James A. Ward
/s/ A.D. Correll Director Oct. 27, 2000
----------------
A .D. Correll
/s/ A.W. Dahlberg Director Oct. 27, 2000
-----------------
A. W. Dahlberg
/s/ Elmer B. Harris Director Oct. 27, 2000
-------------------
Elmer B. Harris
/s/ William M. Hjerpe Director Oct. 27, 2000
---------------------
William M. Hjerpe
/s/ David J. Lesar Director Oct. 27, 2000
------------------
David J. Lesar
/s/ W. L. Westbrook Director Oct. 27, 2000
-------------------
W. L. Westbrook
