File No. 70-8399
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM U-1
APPLICATION OR DECLARATION
under
The Public Utility Holding Company Act of 1935
THE SOUTHERN COMPANY
64 Perimeter Center East
Atlanta, Georgia 30346
(Name of company or companies filing this statement
and addresses of principal executive offices)
THE SOUTHERN COMPANY
(Name of top registered holding company parent of each
applicant or declarant)
Tommy Chisholm, Secretary
The Southern Company
64 Perimeter Center East
Atlanta, Georgia 30346
(Names and addresses of agents for service)
The Commission is requested to mail signed copies of all orders,
notices and communications to:
W. L. Westbrook John F. Young
Financial Vice President Vice President
The Southern Company Southern Company Services,Inc.
64 Perimeter Center East One Wall Street, 42nd Floor
Atlanta, Georgia 30346 New York, New York 10005
John D. McLanahan, Esq
Troutman Sanders
5200 NationsBank Plaza
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
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INFORMATION REQUIRED
The foregoing Application-Declaration is hereby amended and
restated to read in its entirety as follows:
Item 1. Description of Proposed Transactions
1.1 The Southern Company ("Southern"), a registered holding
company under the Public Utility Holding Company Act of 1935, as
amended (the "Act"), proposes, from time to time through December
31, 2004, to issue up to 1,000,000 shares of its common stock,
par value $5.00 per share ("Common Stock"), pursuant to The
Southern Company Outside Directors Stock Plan (the "Plan"), as
described herein. The shares for which authorization is sought
herein will be newly issued shares which have been authorized but
unissued as of the date of the application.
The board of directors of Southern has adopted the Plan,
subject to stockholder approval. The purpose of the Plan is to
provide a mechanism for nonemployee directors of Southern to
automatically increase their ownership of Southern Common Stock
and thereby further align their interests with those of the
stockholders of Southern.
The Plan will be administered by the Compensation Committee
of the board of directors of Southern (the "Committee"). The
Committee will have the discretion to interpret the Plan,
including any ambiguities contained therein and, subject to its
provisions, to make all determinations necessary or desirable for
the Plan's administration.
The Plan provides that any member of the Board of Directors
of Southern who is not otherwise actively employed by Southern or
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any of its subsidiaries or affiliates shall receive a portion of
his or her annual retainer fee equal to $5,000 in unrestricted
Common Stock of Southern, with the remainder of such annual
retainer fee to be payable, in increments elected by the
director, in cash or in unrestricted Common Stock of Southern.
Annual retainer fees for directors of Southern are currently
$30,000.
Outside directors shall have a one-time opportunity,
pursuant to the Plan, to elect the portion of his or her
compensation in excess of $5,000 to be paid in Common Stock.
Such election shall be made on the form provided to the director
by the Committee, which form shall acknowledge that once made,
such election is irrevocable.
Any cash payments due to a nonemployee director as a result
of his or her election to receive a portion of his or her annual
retainer fee in cash will be paid in twelve (12) equal monthly
installments, with such payments being made on the first day of
each month.
Any Common Stock due to a nonemployee director will be paid
on a quarterly basis, with the first such quarterly distribution
being made on April 1 of each year and succeeding quarterly
distributions being made on July 1, September 1, and December 1
of each year. Notwithstanding the foregoing, for purposes of the
1994 calendar year, no stock distributions shall be made prior to
July 1, 1994; provided, however, that the stock distribution to
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be made on July 1, 1994 shall include both the April 1, 1994 and
July 1, 1994 quarterly distributions.
The amount of Common Stock to be distributed to a
nonemployee director pursuant to the Plan shall initially be
determined by first dividing the director's required and elected
dollar amount of Common Stock compensation under the Plan by four
(4) and then dividing such quarterly quotient by the market value
of the Common Stock on the date of distribution, with subsequent
distributions based on such quarterly quotient divided by the
market value of the Common Stock on the date of such subsequent
distributions. For purposes of valuing such Common Stock, the
term "market value" shall mean the average of the high and low
prices of the Common Stock, as published in the Wall Street
Journal in its report of New York Stock Exchange composite
transactions, on the date such market value is to be determined
(or the average of the high and low sale prices on the trading
day immediately preceding such date if the Common Stock is not
traded on the applicable valuation date).
The Plan currently complies with Rule 16b-3 under the
Securities Exchange Act of 1934, as amended, and may be wholly or
partially amended or otherwise modified, suspended or terminated
by the Board of Directors of Southern or by the Committee with
the approval of the Board of Directors; provided, however, that,
without the approval of the shareholders of Southern entitled to
vote thereon, no amendment may be made which would, absent such
shareholder approval, disqualify the Plan for coverage under Rule
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16b-3 under the Securities Exchange Act of 1934, as amended, as
that rule may be amended from time to time; and provided further
that the Plan may not be amended more than once every six (6)
months unless such amendment is made in order to comply with
changes to either the Internal Revenue Code of 1986, as amended,
or the Employee Retirement Income Security Act of 1974, as
amended, and the rules thereunder. Notwithstanding the
foregoing, no amendment or termination of the Plan will be
permitted where it would impair any rights to payments to which a
nonemployee director may be entitled prior to the effective date
of such amendment or termination.
Shares delivered by Southern to a director in accordance
with the Plan will be unrestricted shares of Common Stock.
Southern intends to file with the Securities and Exchange
Commission a Registration Statement on Form S-8 for purposes of
registering under the Securities Act of 1933, as amended, the
shares of Common Stock to be issued pursuant to the Plan.
Pursuant to prior authorization, shares delivered to a
director in accordance with the Plan may also be acquired on the
open market.
1.2 Southern further proposes to submit the Plan for
consideration and action by its stockholders at the annual
meeting of such stockholders to be held on May 25, 1994, and in
connection therewith, to solicit proxies from its stockholders.
Such proxy material will be mailed to Southern's shareholders on
or about April 11, 1994. The material to be used in connection
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with such solicitation in respect of the Plan will be
substantially as set forth in Exhibits G-1, G-2 and G-3 hereto.
Approval of the Plan requires the affirmative vote of the
holders of a majority of the shares of Common Stock represented
in person or by proxy at the annual meeting.
Item 2. Fees, Commissions and Expenses
The estimated fees and expenses paid or incurred, or to be
paid or incurred, directly or indirectly, in connection with the
proposed transactions including costs associated with the
solicitation of proxies are as follows:
Form U-1 Filing Fee $ 2,000
Legal Fees 25,000
Printing 80,000
Postage and Mailing 225,000
Services of Southern Company
Services, Inc. (includes
transfer agent and tabulation
expenses) 55,000
Miscellaneous 5,000
Total $ 392,000
Item 3. Applicable Statutory Provisions
Sections 6(a), 7 and 12(e) of the Act and Rules 23, 24,
50(a)(5), 62 and 65 are or may be applicable to the proposed
transactions.
To the extent that Rule 50 may be applicable to the
proposed transactions, Southern hereby requests an exception from
the requirements thereof pursuant to paragraph (a)(5). It is
submitted that compliance with such requirements is not
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appropriate under the circumstances to aid the Commission (in
carrying out the provisions of Section 7 of the Act) to determine
whether the fees, commissions or other remuneration to be paid
directly or indirectly in connection with the issue, sale or
distribution of securities are reasonable, or whether any term or
condition of such issue or sale is detrimental to the public
interest or the interest of investors or consumers.
Item 4. Regulatory Approval
No state commission and no federal commission (other than
the Securities and Exchange Commission) has jurisdiction over the
proposed transactions.
Item 5. Procedure
In order to give Southern sufficient time for the
preparation and mailing of the proxy solicitation material to its
stockholders prior to the annual meeting to be held on May 25,
1994, Southern hereby requests that the Commission issue an order
as soon as practicable, pursuant to Rule 62(d) under the Act,
permitting the solicitation of proxies proposed herein. Southern
further hereby requests that the Commission issue its order with
respect to the Plan as soon as the rules allow.
Southern hereby waives a recommended decision by a hearing
officer or other responsible officer of the Commission, consents
that the Division of Investment Management may assist in the
preparation of the Commissions's decision and/or order in this
matter, unless such Division opposes the transactions proposed
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herein, and requests that there be no 30-day waiting period
between the issuance of the Commission's order and the date on
which it is to become effective.
Southern hereby requests that it be permitted to file
certificates of notification on a quarterly basis, within 30 days
after the end of each calendar quarter.
Item 6. Exhibits and Financial Statements
(a) Exhibits
A-1 - The Southern Company Outside Directors Stock
Plan. (To be filed by amendment.)
A-2 - Composite Certificate of Incorporation of
Southern reflecting all amendments to date.
(Designated in Registration No. 33-3546 as
Exhibit 4(a), in Certificate of
Notification, File No. 70-7341, as Exhibit
A, and in Certificate of Notification, File
No. 70-8181, as Exhibit A.)
A-3 - By-Laws of Southern as amended effective
October 21, 1991 and presently in effect.
(Designated in Form U-1, File No. 70-8181,
as Exhibit A-2.)
B - None.
C - Registration Statement of Southern on Form
S-8 with respect to the Plan. (To be filed
by amendment.)
D - None.
E - None.
F - Opinion of Troutman Sanders. (Previously
filed)
G-1 - Draft of notice of annual meeting of
stockholders. (Previously filed)
G-2 - Draft of statement relating to the Plan to
be included in the proxy statement for the
annual meeting. (Previously filed)
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G-3 - Draft of form of proxy for the annual
meeting. (Previously filed)
H - Form of Notice and Order permitting the
solicitation of proxies. (Previously filed)
Exhibits heretofore filed with the Securities and Exchange
Commission and designated as set forth above are hereby
incorporated herein by reference and made a part hereof with the
same effect as if filed herewith.
(b) Financial Statements.
Financial statements are omitted since they are not deemed
relevant or necessary for a proper disposition of the proposed
transactions by the Commission.
Item 7. Information as to Environmental Effects
a) In light of the nature of the proposed transactions as
described in Item 1 hereof, the Commission's action in this
matter will not constitute any major federal action significantly
affecting the quality of the human environment.
b) No other federal agency has prepared or is preparing
an environmental impact statement with regard to the proposed
transactions.
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SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
amendment to be signed on its behalf by the undersigned thereunto
duly authorized.
Dated: April 7, 1994 THE SOUTHERN COMPANY
By: /s/Tommy Chisholm
Tommy Chisholm
Secretary
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