SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 26, 1994
THE SOUTHERN COMPANY
(Exact name of registrant as specified in its charter)
Delaware 1-3526 58-0690070
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
64 Perimeter Center East, Atlanta, Georgia 30346
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (404) 393-0650
N/A
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On January 26, 1994, The Southern Company (the "Company")
entered into a Purchase Contract covering the issue and sale of
2,800,000 additional shares of its common stock, par value $5 per
share. Said common stock was registered under the Securities Act
of 1933, as amended, pursuant to the Company's shelf registration
statement (Registration Statement No. 33-51433).
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) Exhibits.
1 Form of Proposal for Purchase of The Southern
Company Common Stock, dated January 26, 1994,
between the Company and the Purchaser named
therein, with Purchase Contract attached
thereto.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
Date: January 28, 1994 THE SOUTHERN COMPANY
By /s/Tommy Chisholm
Tommy Chisholm
Secretary
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Exhibit 1
FORM OF PROPOSAL
For Purchase of
THE SOUTHERN COMPANY COMMON STOCK
Dated: January 26, 1994
THE SOUTHERN COMPANY
c/o Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Dear Sirs:
Referring to the terms and conditions dated January 19, 1994
(the "Terms and Conditions") relating to proposals for the
purchase of common stock, par value $5 per share (the "Stock"),
of The Southern Company (the "Company"), and the notice dated the
date hereof (the "Notice") given by the Company pursuant thereto,
the persons, firms and corporations named in Exhibit A attached
hereto (the "Bidders") have submitted and confirm herewith the
following proposal for the purchase of 2,800,000 shares of the
Stock, as designated by the Company in the Notice (the
"Designated Number of Shares"):
1. The price to be paid to the Company for the Stock shall
be $42.8322 per share, each of the Bidders hereby offering,
severally and not jointly, to purchase from the Company, at said
price and upon the terms and conditions set forth in the form of
purchase contract attached hereto marked Exhibit B (the "Purchase
Contract"), the number of shares of the Stock set forth opposite
its name in Exhibit A attached hereto, or the number of shares of
the Stock to be set forth opposite its name in Exhibit A attached
hereto as provided in Section 3 of the Terms and Conditions,
which together aggregate the Designated Number of Shares.
Exhibit A attached hereto, when completed, is hereinafter and in
the Purchase Contract called "Exhibit A to the Form of Proposal".
2. In consideration of the agreement of the Company set
forth in the Terms and Conditions that, subject to the provisions
thereof, the Company will accept the proposal which results in
the "best bid" for the Stock, each of the Bidders agrees (a) that
the offer of such Bidder included in this proposal shall be
irrevocable until three hours after the time fixed for the
submission of proposals, unless sooner rejected by the Company;
(b) that, if this proposal shall be accepted in writing by the
Company, such Bidder, either in person or by the
Representative(s) on his behalf, will forthwith furnish to the
Company the information described in Section 6 of the Terms and
Conditions; and (c) that, if this proposal shall be so accepted
by the Company, the Purchase Contract shall thereupon become
effective without any separate execution thereof and shall
constitute the agreement between the Company and the Bidders and,
upon performance by the Bidders, and the Representative(s), of
their obligations under Sections 3, 4 and 6 of the Terms and
Conditions, all rights of the Company and of the Bidders shall be
determined solely in accordance with the terms thereof, subject,
however, to such modifications therein (including Exhibit A to
the Form of Proposal) as may be necessary and as are contemplated
by the Terms and Conditions.
3. This proposal must be accepted or rejected by the
Company in its entirety within three hours after the time fixed
for the submission thereof.
4. This proposal may be executed in any number of
counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
instrument.
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Each of the Bidders acknowledges receipt of a copy of the
prospectus in respect of the Stock furnished by the Company to
the Bidders pursuant to the last paragraph of Section 5 of the
Terms and Conditions.
Very truly yours,
LEHMAN BROTHERS INC.
By: /s/Rodger D. Elsas
Senior Vice President
On behalf of and as Representative(s) of the
persons, firms and corporations named in
Exhibit A hereto.
LEHMAN BROTHERS INC.
3 WORLD FINANCIAL CENTER
NEW YORK, N.Y. 10285-1100
Address
Accepted:
THE SOUTHERN COMPANY
By: /s/W. L. Westbrook
Title: Financial Vice President
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EXHIBIT A
The names of the Bidders and the respective numbers of
shares of the Stock which they severally offer to purchase are as
follows:
Number of
Name Shares
Lehman Brothers Inc. 2,800,000
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EXHIBIT B
THE SOUTHERN COMPANY
PURCHASE CONTRACT
For Purchase of Common Stock of the Company
AGREEMENT made between THE SOUTHERN COMPANY, a corporation
organized and existing under the laws of the State of Delaware
(the "Company"), party of the first part, and the several
persons, firms and corporations (the "Purchasers") named as
Bidders in Exhibit A to the Form of Proposal to which this
agreement is attached as Exhibit B (the "Form of Proposal"),
parties of the second part,
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell the
Designated Number of Shares (as defined in the Form of Proposal)
of its authorized but unissued common stock, par value $5 per
share (the "Stock"); and
WHEREAS, the Purchasers have authorized the person or
persons signing the Form of Proposal (the "Representative") to
execute the Form of Proposal on behalf of the respective
Purchasers and to act for the respective Purchasers in the manner
provided in this agreement; and
WHEREAS, the Company has prepared and filed, in accordance
with the provisions of the Securities Act of 1933, as amended
(the "Securities Act"), with the Securities and Exchange
Commission (the "Commission"), a registration statement and
prospectus relating to the Stock, and such registration statement
has become effective (such registration statement, as it became
effective, including the exhibits thereto and all documents
incorporated by reference in the prospectus at such time pursuant
to Item 12 of Form S-3, being herein called the "Registration
Statement"); and
WHEREAS, the prospectus referred to in the last paragraph of
the Form of Proposal (such prospectus, including all documents
incorporated therein by reference pursuant to Item 12 of Form S-3
as of the time of the acceptance of the Form of Proposal, being
herein called the "Bidding Prospectus") is to be supplemented by
a prospectus supplement (the "Prospectus Supplement"), including
certain information relating to the Purchasers and the price and
terms of offering (the Bidding Prospectus as supplemented by the
Prospectus Supplement being herein called the "Prospectus").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, it is agreed between the
parties as follows:
1. Purchase and Sale: Upon the basis of the warranties
and representations and on the terms and subject to the
conditions herein set forth, the Company agrees to sell to the
respective Purchasers, severally and not jointly, and the
respective Purchasers, severally and not jointly, agree to
purchase from the Company, at the price specified in paragraph 1
of the Form of Proposal, the respective numbers of shares of the
Stock set opposite their names in Exhibit A to the Form of
Proposal, which together aggregate the Designated Number of
Shares, which the Purchasers agree will be offered to the public.
2. Payment and Delivery: Payment for the Stock shall be
made to the Company or its order in federal funds or in other
funds which are, as shown by written evidence satisfactory to the
Company, immediately available in The City of New York at the
time of purchase, at the office of Reid & Priest, 40 West 57th
Street, New York, N.Y. (or at such other location as may be
agreed upon by the Representative and the Company), upon the
delivery of the Stock to the Representative for the respective
accounts of the Purchasers against receipt therefor
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signed by the Representative on behalf of itself and as agent for
the other Purchasers. Such payment and delivery shall be made at
10:00 a.m. New York time on the seventh day (which shall be a
full business day) after this agreement becomes effective (or on
such other day as may be agreed upon by the Representative and
the Company), unless postponed in accordance with the provisions
of Section 8 hereof. The time at which payment and delivery are
to be made is herein sometimes called the "time of purchase".
Initial delivery of the Stock shall be made in the form of
definitive engraved certificates which shall be issued in such
names and in such denominations as the Representative shall
designate in a letter to be delivered in duplicate to the
Company, at said office of Southern Company Services, Inc., not
later than 10:00 a.m. New York Time on the third business day
preceding the time of purchase or, if no such direction is
received, in the names of the respective Purchasers in
denominations selected by the Company. If the Representative
shall request that the Stock be registered in a name or names
other than that of the Purchaser agreeing to purchase such Stock,
such Purchaser shall pay any transfer taxes resulting from such
request. For the purpose of expediting the checking of the
certificates for the Stock by the Representative on behalf of the
Purchasers, the Company agrees to make such certificates
available to the Representative for such purpose at the office of
the Representative, at least 20 hours prior to the time of
purchase.
3. Conditions of Purchasers' Obligations: The several
obligations of the Purchasers hereunder are subject to the
accuracy of the warranties and representations on the part of the
Company herein set forth and to the following other conditions:
(a) That all legal proceedings to be taken in connection
with the issue and sale of the Stock and the legal opinion
provided for in Section 3(b)(1) herein shall be satisfactory in
form and substance to Reid & Priest, counsel for the Purchasers.
(b) That, at the time of purchase, the Representative shall
be furnished with the following opinions and letter and copies or
signed counterparts thereof for each of the Purchasers, with such
changes therein as may be agreed upon by the Company and the
Representative with the approval of Reid & Priest:
(1) Opinion of Troutman Sanders of Atlanta, Ga.,
counsel to the Company, substantially in the form attached
hereto as Exhibit 1.
(2) Opinion of Reid & Priest, of New York, N.Y.,
substantially in the form attached hereto as Exhibit 2.
(3) Letter dated the date of payment and delivery from
Arthur Andersen & Co. to the effect that: (A) they are
independent public accountants with respect to the Company
within the meaning of the Securities Act and the applicable
published rules and regulations thereunder; (B) in their
opinion, the financial statements and schedules audited by
them and incorporated by reference in the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the related published rules and regulations; (C)
they have performed certain limited procedures through a
specified date not more than five business days prior to the
date of such letter, namely (i) reading the minute books of
the Company; (ii) reading the unaudited financial
statements, if any, of the Company incorporated in the
Prospectus and agreeing the amounts therein with the
Company's accounting records; (iii) making inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters regarding whether the
unaudited financial statements, if any, incorporated in the
Prospectus (a) are in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
incorporated in the Prospectus and (b) comply as to form in
all material respects with the applicable accounting
requirements of the Exchange Act and the related published
rules and regulations; (iv) reading the unaudited amounts
for Operating Revenues, Consolidated Net Income and Earnings
Per
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Share of Common Stock set forth in the Prospectus, which
amounts shall include such amounts for the latest period
subsequent to that covered by the financial statements
incorporated by reference in the Prospectus for which such
amounts are available at the time this agreement becomes
effective; (v) reading the unaudited financial statements
from which the amounts described in (iv) were derived and
agreeing the amounts therein to the Company's accounting
records; (vi) making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding whether (a) the unaudited amounts referred
to in (iv) above and the unaudited financial statements
referred to in (v) above are stated on a basis substantially
consistent with that of the corresponding audited amounts
included or incorporated by reference in the Prospectus and
(b) as of a specified date not more than five business days
prior to the date of delivery of such letter, there has been
any change in the capital stock or long-term debt of the
Company or any decrease in net assets as compared with
amounts shown in the latest audited balance sheet
incorporated in the Prospectus, except in each case for
changes or decreases which (I) the Prospectus discloses have
occurred or may occur, (II) are occasioned by the
declaration of dividends, (III) are occasioned by draw-downs
or regularly scheduled payments under existing pollution
control financing arrangements or nuclear fuel and other
capitalized lease agreements, (IV) are occasioned by the
purchase or redemption of bonds or stock to satisfy
mandatory or optional redemption provisions relating
thereto, or (V) are disclosed in such letter; (vii) reading
the unaudited amounts for Operating Revenues, Consolidated
Net Income and Earnings Per Share of Common Stock for any
period subsequent to those set forth in (iv) above, which if
available shall be set forth in such letter; (viii) reading
the unaudited financial statements from which the amounts
described in (vii) above were derived and which will be
attached to such letter and agreeing the amounts therein to
the Company's accounting records; and (ix) making inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters regarding whether the
unaudited amounts referred to in (vii) above and the
unaudited financial statements referred to in (viii) above
are stated on a basis substantially consistent with that of
the corresponding audited amounts included or incorporated
by reference in the Prospectus; and (D) reporting their
findings as a result of performing the limited procedures
set forth in (C) above. It is understood that the foregoing
procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and
they would not necessarily reveal matters of significance
with respect to the comments made in such letter, and
accordingly that Arthur Andersen & Co. make no
representations as to the sufficiency of such procedures for
the several Purchasers' purposes.
(c) That no amendment or supplement, including the
Prospectus Supplement, to the registration statement or
prospectus relating to the Stock filed subsequent to the time
this agreement becomes effective (including any filing made by
the Company pursuant to Section 13 or 14 of the Exchange Act)
shall be unsatisfactory in form to Reid & Priest or shall contain
information (other than with respect to an amendment or
supplement relating solely to the activity of any Purchaser or
Purchasers) which, in the reasonable judgment of the
Representative, shall materially impair the marketability of the
Stock.
(d) That, at or before 8 p.m. New York Time on the first
business day after the date this agreement becomes effective, or
at such later time and date as the Representative may from time
to time consent to in writing or by telephone, confirmed in
writing, there shall be in effect an appropriate order of the
Commission under the Public Utility Holding Company Act of 1935,
as amended, necessary to permit the issuance and sale of the
Stock; and 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 Securities Act by the Commission
or proceedings therefor initiated or threatened.
(e) That, prior to the time of purchase, there shall have
been no material adverse change in the business, properties or
financial condition of the Company or of the Company and its
subsidiaries consolidated from that set forth in or contemplated
by the Prospectus, and that the Company shall, at the time of
purchase, have delivered to the Representative a certificate to
such effect of an executive officer of the Company. For the
purposes of this condition, the sale by the Company of, or its
failure to sell, any issue of other securities shall not be
deemed to be such a change.
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(f) That the Company shall have performed such of its
obligations under this agreement as are to be performed at or
before the time of purchase by the terms hereof.
4. Conditions of Company's Obligations: The obligations
of the Company to sell and deliver the Stock are subject to the
following conditions:
(a) That no stop order with respect to the effectiveness of
the Registration Statement shall have been issued under the
Securities Act by the Commission prior to the time of purchase;
and that no proceedings therefor shall have been initiated or
threatened at the time of purchase; and
(b) That, at the time of purchase, an appropriate order of
the Commission under the Public Utility Holding Company Act of
1935, as amended, shall be in effect permitting the issue and
sale of the Stock on the terms and conditions herein and in the
Registration Statement set forth or contemplated and containing
no provision unacceptable to the Company by reason of the fact
that it is materially adverse to the Company (it being understood
that no such order in effect as of the date of this agreement
contains any such unacceptable provision).
In the event that any of the conditions specified in this
Section 4 shall not have been fulfilled, this agreement may be
terminated by the Company upon mailing or delivering written
notice of such termination to the Representative prior to the
time of purchase. Any such termination shall be without
liability of any party to any other party except as otherwise
provided in Section 5(j) hereof.
5. Certain Covenants of the Company: In further
consideration of the agreements of the Purchasers herein
contained, the Company covenants as follows:
(a) As soon as practicable after this agreement becomes
effective, and in any event within the time prescribed by Rule
424 under the Securities Act, to file the Prospectus Supplement
with the Commission and to advise the Representative of such
filing and to confirm such advice in writing.
(b) As soon as the Company is advised thereof, to advise
the Representative and confirm the advice in writing of any
request made by the Commission for amendments to the Registration
Statement or Prospectus, including any amendment to any of the
documents incorporated therein by reference pursuant to Item 12
of Form S-3, or of the issue of a stop order suspending the
effectiveness of the Registration Statement or of the initiation
or threat of any proceedings for that purpose and, if such a stop
order should be issued by the Commission, to make every
reasonable effort to obtain the lifting or removal thereof as
soon as possible.
(c) To deliver to each of the Purchasers, without charge,
as soon as practicable on or after the date this agreement
becomes effective, and from time to time thereafter during such
period of time (not exceeding nine months) after this agreement
becomes effective as the Purchasers are required by law to
deliver a prospectus, as many copies of the Prospectus (as
supplemented or amended if the Company shall have made any
supplements or amendments thereto) as the Representative may
reasonably request; and, in case any Purchaser is required to
deliver a prospectus after the expiration of nine months after
this agreement becomes effective, to furnish to the
Representative, upon request, at the expense of such Purchaser, a
reasonable quantity of a supplemental prospectus or of
supplements to the Prospectus complying with Section 10(a)(3) of
the Securities Act.
(d) During such period of time after this agreement becomes
effective as the Purchasers are required by law to deliver a
prospectus, to file timely all documents required to be filed
with the Commission pursuant to Section 13 or 14 of the Exchange
Act.
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(e) To furnish to the Representative, or if such
Representative consists of two or more persons to one of such
persons, one copy, certified by an officer of the Company, of the
registration statement as initially filed with the Commission,
all amendments thereto and all documents incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 as of
the time of purchase (in each case, exclusive of exhibits), and
to furnish to the Representative sufficient plain copies of said
registration statement and all amendments thereto (exclusive of
exhibits) for distribution of two each, and all said documents
incorporated therein as of the time of purchase (exclusive of
exhibits) for distribution of one each, to the other Purchasers.
(f) In the event that the Purchasers constitute
"underwriters" within the meaning of Section 2(11) of the
Securities Act, then, for such period of time (not exceeding nine
months) after this agreement becomes effective as they are
required by law to deliver a prospectus, if any event shall have
occurred as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, forthwith to amend or
supplement the Prospectus by either (i) preparing and furnishing,
at its own expense, to the Purchasers and to dealers (whose names
and addresses are furnished to the Company by the Representative)
to whom Stock may have been sold by the Representative on behalf
of the Purchasers and, upon request, to any other dealers making
such request, either amendments to the Prospectus or supplements
thereto, or (ii) making an appropriate filing pursuant to Section
13 or 14 of the Exchange Act which would supplement or amend the
Prospectus, so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading.
(g) To make generally available to the Company's security
holders, as soon as practicable, an earning statement (which need
not be audited) covering a period of at least twelve months
beginning with the first day of the month immediately following
the effective date of the Registration Statement as defined in
Rule 158(c) under the Securities Act, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities
Act.
(h) To use its best efforts to qualify the Stock for offer
and sale under the securities or blue sky laws of such
jurisdictions as the Representative may designate within six
months after the date this agreement becomes effective and to pay
filing fees and disbursements in connection therewith in an
amount not exceeding $3,500 in the aggregate (including filing
fees and disbursements paid and incurred prior to the date
hereof), provided, however, that the Company shall not be
required to qualify as a foreign corporation or to file a consent
to service of process or to file annual reports or to comply with
any other requirements deemed by the Company to be unduly
burdensome.
(i) To pay all expenses, fees and taxes (other than
transfer taxes) in connection with (1) the preparation and filing
of the Registration Statement and Prospectus, (2) the issue and
delivery of the Stock to the Purchasers, and (3) the furnishing
of the opinions, letter and certificate referred to in Section 3
hereof, except that the Company shall be required to pay the fees
and disbursements (other than disbursements referred to in
paragraph (h) of this Section 5) of Reid & Priest only in an
event provided in paragraph (j) of this Section 5, the Purchasers
hereby agreeing to pay such fees and disbursements in any other
event and, if such fees should be less than the amount stated by
such counsel to the Representative, to repay to the Company the
amount of any reduction.
(j) If the Purchasers shall not take up and pay for the
Stock due to the failure of the Company to comply with any of the
conditions specified in Section 3 hereof, or if this agreement
shall be terminated in accordance with the provisions of Section
4, 8 or 9 hereof, to pay the reasonable fees and disbursements of
Reid & Priest, and, if the Purchasers shall not take up and pay
for the Stock due to the failure of the Company to comply with
any of the conditions specified in Section 3 hereof, or if this
agreement shall be terminated in accordance with the provisions
of Section 4 hereof, to reimburse the Purchasers for their
reasonable out-of-pocket expenses, in an amount not exceeding a
total of $10,000, incurred in connection with the financing
contemplated by this agreement.
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(k) At or before the time of purchase, to effect the
listing, upon official notice of issuance, of the Stock on the
New York Stock Exchange.
(l) On and after the date this agreement becomes effective
and through the time of purchase, without the prior written
consent of the Representative, not to issue or sell any of its
common stock (other than the Stock and other than pursuant to the
Company's Dividend Reinvestment and Stock Purchase Plan, Employee
Savings Plan, Employee Stock Ownership Plan or Executive Stock
Option Plan).
6. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the
Purchasers that:
(i) The Registration Statement has become and is
effective under the Securities Act, and no proceedings for a
stop order with respect thereto are pending before or, to
the knowledge of the Company, threatened by the Commission;
the Registration Statement, when it became effective, did
not 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 and
the Bidding Prospectus, on said date, did not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; when the Prospectus Supplement is filed with
the Commission, and at the time of purchase, the
Registration Statement and the Prospectus, as they may be
amended or supplemented, will comply, or be deemed to
comply, in all material respects with the provisions of the
Securities Act and the rules and regulations of the
Commission thereunder, the Registration Statement, as it may
be amended or supplemented, will not contain any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein not
misleading, and the Prospectus, as it may be amended or
supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading,
and all documents incorporated therein by reference pursuant
to Item 12 of Form S-3 as of such dates complied or will
comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations
of the Commission thereunder, and, on said dates, when read
together with the Prospectus, or the Prospectus as it may be
otherwise amended or supplemented, 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 were made, not misleading,
except that the Company makes no warranty or representation
to any Purchaser with respect to any statements or omissions
made in reliance upon and in conformity with information
furnished in writing to the Company by, or through the
Representative on behalf of, any Purchaser for use in the
Registration Statement or the Prospectus.
(ii) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of this agreement will not violate any of the terms,
conditions or provisions of, or constitute a default under,
the Certificate of Incorporation or by-laws, as amended, of
the Company or any indenture or other contract or agreement
to which the Company is now a party or any order of any
court or administrative agency entered in any proceedings to
which the Company is now or was a party.
(b) The Company agrees to indemnify and hold harmless each
of the Purchasers and each person, if any, who controls any such
Purchaser within the meaning of Section 15 of the Securities Act,
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or otherwise, and to reimburse the Purchasers
and such controlling person or persons, if any, for any legal or
other expenses incurred by them in connection with defending any
actions, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any alleged untrue
statement of a material fact contained in a preliminary
prospectus (if used prior to the effective date of the
registration statement), or in the Bidding Prospectus (if used
prior to the date this agreement becomes effective), or in the
Registration Statement,
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or in the Prospectus or, if the Company shall furnish to the
Purchasers any amendments or any supplements thereto, or shall
make any filings pursuant to Section 13 or 14 of the Exchange Act
which are incorporated therein by reference, in the Prospectus as
so amended or supplemented (provided that, if such Prospectus or
such Prospectus as amended or supplemented is used after the
expiration of the period of time specified in Section 5(f)
hereof, it shall contain such amendments or supplements as the
Company deems necessary to comply with Section 10(a)(3) of the
Securities Act), or arise out of or are based upon any alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such
alleged untrue statement or omission which was made in such
Registration Statement or Prospectus in reliance upon and in
conformity with information furnished in writing to the Company
by, or through the Representative on behalf of, any Purchaser for
use therein, and except that this indemnity with respect to a
preliminary prospectus and the Bidding Prospectus, and with
respect to the Prospectus if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit
of any Purchaser (or of any person controlling such Purchaser) on
account of any losses, claims, damages, liabilities or actions
arising from the sale of Stock to any person if a copy of the
Prospectus (exclusive of documents incorporated therein by
reference pursuant to Item 12 of Form S-3), as the same may then
be amended or supplemented, shall not have been sent or given by
or on behalf of such Purchaser to such person with or prior to
the written confirmation of the sale involved. Each Purchaser
agrees, within 10 days after the receipt by it of notice of the
commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company
on account of its agreement contained in this Section 6(b), to
notify the Company in writing of the commencement thereof, but
the omission of such Purchaser so to notify the Company of any
such action shall not release the Company from any liability
which it may have to such Purchaser or to such controlling person
otherwise than on account of the indemnity agreement contained in
this Section 6(b). In case any such action shall be brought
against any Purchaser or any such person controlling such
Purchaser and such Purchaser shall notify the Company of the
commencement thereof, as above provided, the Company shall be
entitled to participate in (and, to the extent that it shall
wish, including the selection of counsel, to direct) the defense
thereof at its own expense. In case the Company elects to direct
such defense and select such counsel, any Purchaser or
controlling person shall have the right to employ its own
counsel, but, in any such case, the fees and expenses of such
counsel shall be at the expense of such Purchaser or controlling
person unless the employment of such counsel has been authorized
in writing by the Company in connection with defending such
action.
The Company's indemnity agreement contained in this Section
6(b), and its covenants, 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
Purchaser or controlling person, and shall survive the delivery
of and payment for the Stock hereunder.
The Company agrees promptly to notify the Representative of
the commencement of any litigation or proceedings against the
Company or any of its officers or directors in connection with
the sale of the Stock or with a preliminary prospectus, the
Bidding Prospectus, Registration Statement or Prospectus.
7. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents to the Company,
its directors and such of its officers as shall have signed the
Registration Statement, and to each other Purchaser that the
information furnished in writing to the Company by, or through
the Representative on behalf of, such Purchaser for use in the
Registration Statement or the 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 therein or necessary to make such information not
misleading.
(b) Each Purchaser agrees to indemnify and hold harmless
the Company, its directors and such of its officers as shall have
signed the Registration Statement, and each other Purchaser and
each person, if any, who controls the Company or any such other
Purchaser within the meaning of Section 15 of the Securities Act,
to the
11
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same extent and upon the same terms as the indemnity agreement of
the Company set forth in Section 6(b) hereof, but only with
respect to alleged untrue statements or omissions made in the
Registration Statement or the Prospectus, or the Prospectus as
amended and supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by, or through
the Representative on behalf of, such Purchaser for use therein.
The indemnity agreement on the part of each Purchaser
contained in this Section 7(b), and the warranties and
representations of such Purchaser contained in this agreement,
shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or other
Purchaser or controlling person, and shall survive the delivery
of and payment for the Stock hereunder.
Each Purchaser agrees promptly to notify the Company and
each other Purchaser of the commencement of any litigation or
proceedings against such Purchaser in connection with the sale of
the Stock or with a preliminary prospectus, the Bidding
Prospectus, Registration Statement or Prospectus.
8. Substitution of Purchasers: If any Purchaser under
this agreement shall fail or refuse (whether for some reason
sufficient to justify, in accordance with the terms hereof, the
termination of its obligations to purchase or otherwise) to
purchase the number of shares of the Stock which it has agreed to
purchase, the Company shall immediately notify the
Representative, and the Representative may, within 24 hours of
receipt of such notice, procure some other responsible party or
parties satisfactory to the Company, who may include one or more
of the remaining Purchasers, to purchase or agree to purchase
such number of shares of the Stock on the terms herein set forth;
and, if the Representative shall fail to procure a satisfactory
party or parties to purchase or agree to purchase such number of
shares of the Stock on such terms within such period after the
receipt of such notice, then the Company shall be entitled to an
additional period of 24 hours within which to procure another
party or parties to purchase or agree to purchase such number of
shares of the Stock on the terms herein set forth. In any such
case, either the Representative or the Company shall have the
right to postpone the time of purchase for a period not to exceed
five full business days from the date determined as provided in
Section 2 hereof, in order that the necessary changes in the
Registration Statement and Prospectus and any other documents and
arrangements may be effected. If the Representative shall fail
to procure a satisfactory party or parties to purchase or agree
to purchase such number of shares of the Stock, and if the
Company also does not procure another party or parties to
purchase or agree to purchase such number of shares of the Stock,
as above provided, then this agreement shall terminate. In the
event of any such termination, the Company shall not be under any
liability to any Purchaser (except to the extent, if any,
provided in Section 5(j) hereof), nor shall any Purchaser (other
than a Purchaser who shall have failed or refused to purchase
Stock without some reason sufficient to justify, in accordance
with the terms hereof, its termination of its obligations
hereunder) be under any liability to the Company.
9. Termination of Agreement: This agreement may be
terminated any time prior to the time of purchase by the
Representative with the consent of Purchasers who have agreed to
purchase in the aggregate 50% or more of the Designated Number of
Shares of the Stock, if, after this agreement becomes effective
and prior to the time of purchase, (i) trading in securities on
the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been
generally established on the New York Stock Exchange by the
Commission or by the New York Stock Exchange, (iii) a general
banking moratorium shall have been declared by federal or New
York State authorities or (iv) there shall have occurred any
outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by the United States
Congress or any other substantial national or international
calamity or emergency affecting the United States, in any such
case provided for in clauses (i) through (iv) with the result
that, in the reasonable judgment of the Representative, the
marketability of the Stock shall have been materially impaired.
If the Representative elects to terminate this agreement, as
provided in this Section 9, the Company and each other Purchaser
shall be notified promptly by the Representative by telephone,
confirmed in writing. If this agreement shall not be carried out
by any Purchaser for any reason permitted hereunder, or if the
sale of the Stock to the Purchasers as herein contemplated shall
not be carried out because the Company is not able to comply with
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<PAGE>
the terms hereof, the Company shall not be under any obligation
under this agreement and shall not be liable to any Purchaser or
to any member of any selling group for the loss of anticipated
profits from the transactions contemplated by this agreement
(except that the Company shall remain liable to the extent
provided in Section 5(j) hereof), and the Purchasers (other than
a defaulting Purchaser) shall be under no liability to the
Company nor be under any liability under this agreement to one
another.
10. Notices: All notices hereunder shall, unless otherwise
expressly permitted, be in writing and be delivered at or mailed
to the following addresses: if to the Purchasers or the
Representative, to the Representative at the address set forth
following its signature in the Form of Proposal, and, if to the
Company, to the Company, attention of Tommy Chisholm, Secretary,
64 Perimeter Center East, Atlanta, Georgia 30346.
11. Parties in Interest: The agreement herein set forth
has been and is made solely for the benefit of the Purchasers and
the Company, its directors and such of its officers as shall have
signed the Registration Statement, and the controlling persons,
if any, referred to in Sections 6 and 7 hereof, and their
respective successors, assigns, executors and administrators,
and, subject to the provisions of Section 8 hereof, no other
person shall acquire or have any right under or by virtue of this
agreement.
12. Definitions of Certain Terms: If there be two or more
persons, firms or corporations named in Exhibit A to the Form of
Proposal, the term "Purchasers", as used herein, shall be deemed
to mean the several persons, firms or corporations so named
(including any substitute purchaser or purchasers as permitted by
Section 8 hereof and the Representative hereinafter mentioned, if
so named), and the term "Representative", as used herein, shall
be deemed to mean the person or persons designated as
representative or representatives of the Purchasers by, or in the
manner authorized by, the Purchasers, who, by signing the Form of
Proposal, represent that it or they have been authorized by the
Purchasers to execute the Form of Proposal on their behalf and to
act for them in the manner herein provided. In the event that
all the Purchasers execute the Form of Proposal and no one or
more of them are designated to act as representative or
representatives, then the term "Representative" shall be deemed
to mean all the persons signing the Form of Proposal. If the
Representative consists of more than one person, the
Representative may act by any one thereof. All obligations of
the Purchasers hereunder are several and not joint. If there
shall be only one person, firm or corporation named in Exhibit A
to the Form of Proposal, the term "Purchasers" and the term
"Representative", as used herein, shall mean such person, firm or
corporation.
13 <PAGE>
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EXHIBIT 1
[LETTERHEAD OF TROUTMAN SANDERS]
[Date]
and the other several Purchasers
under Purchase Contract effective
__________, ____, between The
Southern Company and said Purchasers
(the "Purchase Contract") for the
purchase of ______ shares of its common
stock, par value $5 per share (the "Stock")
Ladies and Gentlemen:
We have acted as counsel to The Southern Company (the
"Company") in connection with the purchase by you of the Stock
pursuant to the Purchase Contract.
We have examined the Registration Statement on Form S-3
(File No. 33-_____) filed by the Company under the Securities Act
of 1933, as amended (the "Act"), as it became effective under the
Act (the "Registration Statement") and the Company's prospectus
dated __________, ____, as supplemented by the prospectus
supplement dated __________, ____ (the "Prospectus"), filed by
the Company pursuant to Rule 424(b) of the rules and regulations
of the Securities and Exchange Commission (the "Commission")
under the Act, which pursuant to Form S-3 incorporates by
reference or is deemed to incorporate by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended
December 31, ____, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended __________, ____, __________,
____, and __________, ____, and the Current Reports on Form 8-K
of the Company dated __________, ____, __________, ____ and
__________, ____ (the "Exchange Act Documents"). In addition, we
have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates for the Stock, of which we have examined a
specimen), and upon originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records,
agreements, documents and other instruments and such certificates
or comparable documents of public officials and of officers and
representatives of the Company, and have made such other and
further investigations, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth. In giving
this opinion, we have relied upon a certificate of the Transfer
Agent and Registrar as to the countersignature and registration
of the certificates for the Stock.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the
originals of such latter documents.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we hereby advise you that in our
opinion:
(a) The Company is a corporation duly organized and
existing under the laws of the State of Delaware.
(b) The Stock has been duly authorized by the Company and,
upon payment and delivery in accordance with the Purchase
Contract, will be validly issued, fully paid and nonassessable by
the Company.
<PAGE>
<PAGE>
(c) The terms of the Stock conform as to legal matters to
the description thereof and to the statements in regard thereto
contained in the Prospectus under the caption "Description of
Common Stock".
(d) The Registration Statement has become and is effective
under the Act, and no proceedings for a stop order with respect
thereto are pending before or, to our knowledge, threatened by
the Commission; the Commission has issued and, to our knowledge,
there is in effect an appropriate order under the Public Utility
Holding Company Act of 1935, as amended, with respect to the
issuance and sale of the Stock; such order is sufficient for the
issuance and sale of the Stock; the issuance and sale of the
Stock are in conformity with the terms of such order; and no
other approval or consent of any governmental body (other than in
connection or in compliance with the provisions of the securities
or "Blue Sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and sale of the
Stock or the carrying out by the Company of the provisions of the
Purchase Contract.
(e) The Purchase Contract has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company, subject to any
principles of public policy limiting the right to enforce the
indemnification provisions contained therein, and except as may
be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, and general principles of equity.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included in
the Registration Statement, the Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to
the extent set forth in paragraph (c) above and in the Prospectus
in the third paragraph under the caption "Legal Opinions and
Experts". In the course of the preparation by the Company of the
Registration Statement, the Prospectus and the Exchange Act
Documents, we participated in conferences with certain officers
and employees of the Company and with representatives of Arthur
Andersen & Co. Based upon our examination of the Registration
Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the
Registration Statement, the Prospectus and the Exchange Act
Documents and our participation in the conferences referred to
above, (i) we are of the opinion that the Registration Statement,
as of its effective date, and the Prospectus, as of __________,
____, complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations
of the Commission thereunder and that the Exchange Act Documents,
as of their respective dates of filing with the Commission,
complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, except that in each
case we express no opinion as to the financial statements or
other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Prospectus or the
Exchange Act Documents, and (ii) we have no reason to believe
that the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we
express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents.
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law
of the State of Georgia and the federal law of the United States
and, to the extent set forth herein, the general corporate law of
the State of Delaware.
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<PAGE>
This opinion is rendered to you in connection with the above
described transactions. This opinion may not be relied upon by
you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation without our prior written
consent.
Very truly yours,
TROUTMAN SANDERS
3
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EXHIBIT 2
[LETTERHEAD OF REID & PRIEST]
[Date]
and the other several Purchasers
under Purchase Contract effective
__________, ____, between The
Southern Company and said Purchasers
(the "Purchase Contract") for the
purchase of ______ shares of its common
stock, par value $5 per share (the "Stock")
Ladies and Gentlemen:
We have acted as your counsel in connection with the
purchase by you from The Southern Company (the "Company") of the
Stock pursuant to the Purchase Contract.
We have examined the Registration Statement on Form S-3
(File No. 33-_____) filed by the Company under the Securities Act
of 1933, as amended (the "Act"), as it became effective under the
Act (the "Registration Statement") and the Company's prospectus
dated __________, ____, as supplemented by the prospectus
supplement dated __________, ____ (the "Prospectus"), filed by
the Company pursuant to Rule 424(b) of the rules and regulations
of the Securities and Exchange Commission (the "Commission")
under the Act, which pursuant to Form S-3 incorporates by
reference or is deemed to incorporate by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended
December 31, ____, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended __________, ____, __________, ____
and __________, ____ and the Current Reports on Form 8-K of the
Company dated __________, ____, __________, ____ and __________,
____ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters of
fact upon, the documents delivered to you at the closing (except
the certificates representing the Stock, of which we have
examined a specimen), and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the
originals of such latter documents.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we hereby advise you that in our
opinion:
(a) The Company is a corporation duly organized and
existing under the laws of the State of Delaware.
(b) The Stock has been duly authorized by the Company and,
upon payment and delivery in accordance with the Purchase
Contract, will be validly issued, fully paid and nonassessable by
the Company.
(c) The terms of the Stock conform as to legal matters to
the description thereof and to the statements in regard thereto
contained in the Prospectus under the caption "Description of
Common Stock". <PAGE>
<PAGE>
(d) The Registration Statement has become and is effective
under the Act, and no proceedings for a stop order with respect
thereto are pending before or, to our knowledge, threatened by
the Commission; the Commission has issued and, to our knowledge,
there is in effect an appropriate order under the Public Utility
Holding Company Act of 1935, as amended, with respect to the
issuance and sale of the Stock; such order is sufficient for the
issuance and sale of the Stock; the issuance and sale of the
Stock are in conformity with the terms of such order; and no
other approval or consent of any governmental body (other than in
connection or in compliance with the provisions of the securities
or "Blue Sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and sale of the
Stock or the carrying out by the Company of the provisions of the
Purchase Contract.
(e) The Purchase Contract has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company, subject to any
principles of public policy limiting the right to enforce the
indemnification provisions contained therein, and except as may
be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, and general principles of equity.
All legal proceedings taken by the Company in connection
with the authorization and delivery of the Stock, and the legal
opinion, dated the date hereof, rendered to you by Troutman
Sanders, counsel for the Company, pursuant to the Purchase
Contract, are satisfactory in form and substance to us.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included in
the Registration Statement, the Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to
the extent set forth in paragraph (c) above. In the course of
the preparation by the Company of the Registration Statement, the
Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company,
with representatives of Arthur Andersen & Co. and with counsel
for the Company. Based upon our examination of the Registration
Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the
Registration Statement and the Prospectus, and our participation
in the conferences referred to above, (i) we are of the opinion
that the Registration Statement, as of its effective date, and
the Prospectus, as of __________, ____, complied as to form in
all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder and
that the Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder,
except that in each case we express no opinion with respect to
the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents, and (ii)
we have no reason to believe that the Registration Statement, as
of its effective date (including the Exchange Act Documents on
file with the Commission as of such date), contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Prospectus
(including the Exchange Act Documents) contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that in each case we express no opinion or belief with
respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act
Documents.
We are members of the Bar of the State of New York and we do
not express any opinion herein concerning any law other than the
laws of the State of New York and the federal laws of the United
States and, to the extent set forth herein, the general corporate
law of the State of Delaware.
2<PAGE>
<PAGE>
This opinion is rendered to you in connection with the above
described transactions. This opinion may not be relied upon by
you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation without our prior written
consent.
Very truly yours,
REID & PRIEST
3
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