File No. 70-8435
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 SAVANNAH ELECTRIC AND POWER COMPANY
64 Perimeter Center East 600 Bay Street East
Atlanta, Georgia 30346 Savannah, Georgia 31401
ALABAMA POWER COMPANY SOUTHERN COMPANY SERVICES, INC.
600 North 18th Street 64 Perimeter Center East
Birmingham, Alabama 35291 Atlanta, Georgia 30346
GEORGIA POWER COMPANY SOUTHERN ELECTRIC GENERATING COMPANY
333 Piedmont Avenue, N.E. 600 North 18th Street
Atlanta, Georgia 30308 Birmingham, Alabama 35291
GULF POWER COMPANY SOUTHERN ELECTRIC INTERNATIONAL, INC.
500 Bayfront Parkway 900 Ashwood Parkway, Suite 500
Pensacola, Florida 32501 Atlanta, Georgia 30338
MISSISSIPPI POWER COMPANY SOUTHERN NUCLEAR OPERATING COMPANY, INC.
2992 West Beach 40 Inverness Center Parkway
Gulfport, Mississippi 39501 Birmingham, Alabama 35204
(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 Kirby R. Willis, Vice President,
Secretary Treasurer and Chief Financial Officer
The Southern Company Savannah Electric and Power Company
64 Perimeter Center East 600 Bay Street East
Atlanta, Georgia 30346 Savannah, Georgia 31401
Art P. Beattie, Vice President, Tommy Chisholm, Vice President
Secretary and Treasurer and Secretary
Alabama Power Company Southern Company Services, Inc.
600 North 18th Street 64 Perimeter Center East
Birmingham, Alabama 35291 Atlanta, Georgia 30346
Judy M. Anderson, Vice President Art P. Beattie
and Corporate Secretary Secretary and Treasurer
Georgia Power Company Southern Electric Generating Company
333 Piedmont Avenue, N.E. 600 North 18th Street
Atlanta, Georgia 30308 Birmingham, Alabama 35291
Warren E. Tate, Secretary Tommy Chisholm, Vice President
and Treasurer and Secretary
Gulf Power Company Southern Electric International, Inc.
500 Bayfront Parkway 900 Ashwood Parkway, Suite 500
Pensacola, Florida 32501 Atlanta, Georgia 30338
W. E. Gilmore, Secretary John O. Meier, Vice President
and Treasurer and Corporate Secretary
Mississippi Power Company Southern Nuclear Operating Company, Inc.
2992 West Beach 40 Inverness Center Parkway
Gulfport, Mississippi 39501 Birmingham, Alabama 35204
(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
Troutman Sanders
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308-2216
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Item 1. Description of Proposed Transactions.
The first paragraph of Item 1.5 is hereby deleted and replaced
with the following:
"Southern intends to use the net proceeds from the sales
of the DRIP Stock, the ESP Stock and the ESOP Stock, together
with other available funds, to make additional equity investments
in subsidiaries, including cash capital contributions to its
operating utility subsidiaries and investments in "exempt
wholesale generators" and "foreign utility companies," as defined
in Sections 32 and 33, respectively, and for other corporate
purposes1. Projections of investments in subsidiaries are
included in Exhibit G hereto."
Item 2. Fees, Commissions and Expenses.
Information as to fees and expenses to be incurred in
connection with the issuance and sale of the DRIP Stock pursuant
to the Dividend Plan are as follows:
Filing fees -- Securities and Exchange Commission:
Registration Statement on Form S-3 . . . . . . . $172,400
Statement on Form U-1 . . . . . . . . . . . . . . 668
Listing on New York Stock Exchange . . . . . . . . 117,800
Cost of definitive stock certificates . . . . . . . 12,000
Charges of transfer agent and registrar . . . . . . 10,000
Printing and preparation of registration statement
on Form S-3 and prospectus . . . . . . . . . . . 50,000
Fee of counsel, Troutman Sanders . . . . . . . . . 8,000
Services of Southern Company Services, Inc. . . . . 20,000
Miscellaneous . . . . . . . . . . . . . . . . . . . 4,132
Total . . . . . . . . . . . . . . . . . . . . . . $395,000
Information as to fees and expenses to be incurred in
connection with the issuance and sale of the ESP Stock pursuant
to the Savings Plan are as follows:
1Investments in "exempt wholesale generators" and "foreign
utility companies" may be made indirectly through investments in
special purpose subsidiaries to the extent permitted in File No.
70-8421.
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Filing fees -- Securities and Exchange Commission:
Registration Statement on Form S-8 . . . . . . . $ 62,064
Statement on Form U-1 . . . . . . . . . . . . . . 666
Listing on New York Stock Exchange . . . . . . . . 61,800
Cost of definitive stock certificates . . . . . . . 5,000
Printing and preparation of registration statement
on Form S-8 and prospectus . . . . . . . . . . . 10,000
Fee of counsel, Troutman Sanders . . . . . . . . . 4,000
Services of Southern Company Services, Inc. . . . . 10,000
Miscellaneous . . . . . . . . . . . . . . . . . . . 1,470
Total . . . . . . . . . . . . . . . . . . . . . . $155,000
Information as to fees and expenses to be incurred in
connection with the issuance and sale of the ESOP Stock pursuant
to the ESOP Plan are as follows:
Filing fees -- Securities and Exchange Commission:
Statement on Form U-1 . . . . . . . . . . . . . . $ 666
Listing on New York Stock Exchange . . . . . . . . 36,900
Cost of definitive stock certificates . . . . . . . 3,000
Fee of counsel, Troutman Sanders . . . . . . . . . 4,000
Services of Southern Company Services, Inc. . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . . . . . . 1,434
Total . . . . . . . . . . . . . . . . . . . . . . $51,000
Item 6. Exhibits and Financial Statements.
(a) Exhibits
B-3 - Trust Agreement between Southern Company
Services, Inc. and Wachovia Bank of Georgia,
N.A. as Trustee under the Savings Plan.
B-4(a) - Employee Stock Ownership Plan of The Southern
Company System and Amendment No. 1 and
Amendment No. 2 thereto. (Designated in Form
U-1, File No. 70-7654, as Exhibit B-1.)
B-4(b) - Amendment No. 3 and Amendment No. 4 to the
Employee Stock Ownership Plan of The Southern
Company System.
B-5 - Employee Stock Ownership Plan Agreement of
Trust.
F-1 - Opinion of Troutman Sanders, counsel for
Southern.
F-2 - Opinion of Balch & Bingham, counsel for
Alabama Power Company, Southern Company
Services, Inc., Southern Electric Generating
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- 3 -
Company and Southern Nuclear Operating
Company, Inc.
F-3 - Opinion of Troutman Sanders, counsel for
Georgia Power Company and Southern Electric
International, Inc.
F-4 - Opinion of Beggs & Lane, counsel for Gulf
Power Company.
F-5 - Opinion of Eaton and Cottrell, P.A., counsel
for Mississippi Power Company.
F-6 - Opinion of Bouhan, Williams & Levy, counsel
for Savannah Electric and Power Company.
G - Estimated sources of funds for additional
investments in subsidiaries of Southern.
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.
Corporate balance sheet of Southern at March 31,
1994.
Corporate statement of income of Southern for the
twelve months ended March 31, 1994.
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SIGNATURES
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned companies have duly
caused this amendment to be signed on their behalf by the
undersigned thereunto duly authorized.
Dated: August 1, 1994 THE SOUTHERN COMPANY
By: /s/Tommy Chisholm
Tommy Chisholm
Secretary
ALABAMA POWER COMPANY
By: /s/ Wayne Boston
Wayne Boston
Assistant Secretary
GEORGIA POWER COMPANY
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary
GULF POWER COMPANY
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary
MISSISSIPPI POWER COMPANY
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary
(Signatures continued on following page.)
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SAVANNAH ELECTRIC AND POWER COMPANY
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary
SOUTHERN COMPANY SERVICES, INC.
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary
SOUTHERN ELECTRIC GENERATING COMPANY
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary
SOUTHERN ELECTRIC INTERNATIONAL, INC.
By: /s/Tommy Chisholm
Tommy Chisholm
Secretary
SOUTHERN NUCLEAR OPERATING COMPANY, INC.
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary
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Exhibit B-3
EMPLOYEE SAVINGS PLAN
TRUST AGREEMENT
BETWEEN
SOUTHERN COMPANY SERVICES, INC.
AND
WACHOVIA BANK OF GEORGIA, N.A.
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TABLE OF CONTENTS*
Page
ARTICLE I
TITLE - PURPOSE - POLICY - EFFECT
1.1 Name of Trust . . . . . . . . . . . . . . . . . 3
1.2 Definitions . . . . . . . . . . . . . . . . . . 3
1.3 Purpose . . . . . . . . . . . . . . . . . . . . 6
1.4 Effect . . . . . . . . . . . . . . . . . . . . 6
1.5 Domestic Trust . . . . . . . . . . . . . . . . 7
1.6 Trustee Not Responsible for Enforcing
Contributions or for Sufficiency . . . . . . 7
ARTICLE II
ADMINISTRATION OF PLAN
2.1 Valuations . . . . . . . . . . . . . . . . . . 8
2.2 Payment of Benefits . . . . . . . . . . . . . . 9
2.3 Reliance on Savings Plan Committee . . . . . . 9
2.4 Trustee Not Responsible For Plan
Administration . . . . . . . . . . . . . . . 9
2.5 Participant Records . . . . . . . . . . . . . . 9
ARTICLE III
INVESTMENT OF TRUST ASSETS
3.1 Investment Managers . . . . . . . . . . . . . . 11
3.2 Investment Discretion . . . . . . . . . . . . . 11
3.3 Limitations on Investment Discretion . . . . . 13
3.4 Responsibility for Diversification . . . . . . 13
3.5 Investment by Trustee . . . . . . . . . . . . . 13
3.6 Participant Loans . . . . . . . . . . . . . . . 16
3.7 Liability for Participant Loans . . . . . . . . 16
*This Table of Contents is for the convenience
of the parties only and is not a part of the attached
Trust Agreement.
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Page
ARTICLE IV
RESPONSIBILITY FOR DIRECTED FUNDS
4.1 Responsibility for Selection of Agents . . . . 18
4.2 Trustee Not Responsible for Investments
in Directed Funds . . . . . . . . . . . . . . 18
4.3 Investment Vehicles . . . . . . . . . . . . . . 19
4.4 Reliance on Investment Manager . . . . . . . . 19
4.5 Merger of Funds . . . . . . . . . . . . . . . . 20
4.6 Notification of Savings Plan Committee
in Event of Breach . . . . . . . . . . . . . 21
4.7 Definition of Knowledge . . . . . . . . . . . . 21
4.8 Duty to Enforce Claims . . . . . . . . . . . . 22
4.9 Restrictions on Transfers . . . . . . . . . . . 22
ARTICLE V
POWERS OF INVESTMENT MANAGERS AND TRUSTEE
5.1 Powers of Investment Managers . . . . . . . . . 23
5.2 Powers of Trustee . . . . . . . . . . . . . . . 25
5.3 Prior Consent . . . . . . . . . . . . . . . . . 28
ARTICLE VI
RECORDS AND ACCOUNTS OF TRUSTEE
6.1 Records . . . . . . . . . . . . . . . . . . . . 29
6.2 Monthly Account . . . . . . . . . . . . . . . . 29
6.3 Account Stated . . . . . . . . . . . . . . . . 29
6.4 Judicial Accounting . . . . . . . . . . . . . . 29
6.5 Necessary Parties . . . . . . . . . . . . . . . 30
ARTICLE VII
COMPENSATION, TAXES AND EXPENSES
7.1 Compensation, Taxes and Expenses . . . . . . . 31
ii
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Page
ARTICLE VIII
RESIGNATION OR REMOVAL OF TRUSTEE
8.1 Resignation or Removal . . . . . . . . . . . . 32
8.2 Designation of a Successor . . . . . . . . . . 32
8.3 Reserve for Expenses . . . . . . . . . . . . . 33
ARTICLE IX
SEGREGATION OF FUND
9.1 Segregation of Fund . . . . . . . . . . . . . . 34
ARTICLE X
AMENDMENT OR TERMINATION
10.1 Amendment . . . . . . . . . . . . . . . . . . . 35
10.2 Termination . . . . . . . . . . . . . . . . . . 35
10.3 Trustee's Authority to Survive Termination . . 35
ARTICLE XI
AUTHORITIES
11.1 Company . . . . . . . . . . . . . . . . . . . . 36
11.2 Savings Plan Committee . . . . . . . . . . . . 36
11.3 Pension Fund Investment Review Committee . . . 37
11.4 Investment Manager . . . . . . . . . . . . . . 37
11.5 Form of Communications . . . . . . . . . . . . 37
11.6 Continuation of Authority . . . . . . . . . . . 38
11.7 No Obligation to Act On Unsatisfactory
Notice . . . . . . . . . . . . . . . . . . . 38
ARTICLE XII
GENERAL PROVISIONS
12.1 Governing Law . . . . . . . . . . . . . . . . . 39
12.2 Entire Agreement . . . . . . . . . . . . . . . 39
iii
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Page
ARTICLE XII
GENERAL PROVISIONS (CON'T)
12.3 Reliance on Experts . . . . . . . . . . . . . . 39
12.4 Successor to the Trustee . . . . . . . . . . . 39
12.5 Notices . . . . . . . . . . . . . . . . . . . . 40
12.6 Plan Documents . . . . . . . . . . . . . . . . 40
12.7 No Waiver; Reservation of Rights . . . . . . . 41
12.8 Descriptive Headings . . . . . . . . . . . . . 41
ARTICLE XIII
UNDERTAKING BY COMPANY
13.1 Undertaking . . . . . . . . . . . . . . . . . . 42
13.2 Limitation on Undertaking . . . . . . . . . . . 42
iv
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TRUST AGREEMENT
This Trust Agreement, as a total amendment and restatement
of that certain Agreement of Trust by and between Southern
Company Services, Inc. and Wachovia Bank of Georgia, N.A., dated
January 1, 1976, is hereby entered into this 31st day of March,
1992, effective as of the 1st day of January, 1992, by and
between Southern Company Services, Inc. (hereinafter referred to
as the "Company") and Wachovia Bank of Georgia, N.A., as Trustee
(hereinafter referred to as the "Trustee").
W I T N E S S E T H:
WHEREAS, Southern Company Services, Inc. heretofore
adopted the Employee Savings Plan for The Southern Company System
(hereinafter referred to as the "Plan") for the exclusive use of
eligible employees of the Company (and of such of the affiliates
or subsidiaries of The Southern Company as have been or may from
time to time be authorized by the Board of Directors of the
Company to participate in the Plan and have adopted the Plan) and
their beneficiaries; and
WHEREAS, the Company has deemed it to be in the best
interest of the participants and their beneficiaries to amend and
restate the Trust contemporaneously with the amendment and
restatement of the Plan; and
WHEREAS, Wachovia Bank of Georgia, N.A. is willing to
continue to act as trustee of the Trust and to invest and
<PAGE>
reinvest any assets as may be allocated to the "Fund A Fixed
Income Fund" and the "Fund C Company Stock Fund" upon all the
terms and conditions hereinafter set forth.
NOW, THEREFORE, Southern Company Services, Inc. and
Wachovia Bank of Georgia, N.A., as Trustee, declare and agree
that Wachovia Bank of Georgia, N.A. shall receive, hold and
administer all sums of money and such other property acceptable
to Wachovia Bank of Georgia, N.A. as shall from time to time be
contributed, paid, or delivered to it hereunder, IN TRUST, upon
all of the following terms and conditions.
2
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ARTICLE I
Title - Purpose - Policy - Effect
1.1 Name of Trust. The trust established hereunder shall
be known as the Employee Savings Plan Trust (hereinafter referred
to as the "Trust").
1.2 Definitions. Where used in this Trust Agreement,
unless the context otherwise requires or unless otherwise
expressly provided:
(a) "Account Party" shall mean an officer of the Company
designated to represent the Company for this purpose, the
Chairman of the Savings Plan Committee and any Person to whom the
Trustee shall be instructed by the Savings Plan Committee to
deliver its monthly account under Section 6.2, except that with
respect to any filings, notices, reports or accounting required
to be given under the Trust, "Account Party" shall be limited to
that officer designated herein to represent the Company.
(b) "Accounting Period" shall mean either the calendar
month or the shorter period in any calendar month which the
Trustee accepts appointment as Trustee hereunder or ceases to act
as Trustee for any reason.
(c) "Bank Business Day" shall mean a day on which the
Trustee is open for business.
(d) "Board of Directors" shall mean the Board of Directors
of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and regulations issued thereunder.
3
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(f) "Company" shall mean Southern Company Services, Inc.,
or any successor thereto.
(g) "Directed Fund" shall mean all of "Fund B Equity Fund"
and the Fund D Index Fund,", or any part thereof, subject to the
discretionary management and control of the Savings Plan
Committee or any Investment Manager.
(h) "Discretionary Fund" shall mean all of "Fund A Fixed
Income Fund" and "Fund C Company Stock Fund," or any part
thereof, subject to the discretionary management and control of
the Trustee.
(i) "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time, and
regulations issued thereunder.
(j) "Fund" shall mean all cash and other property
contributed, paid or delivered to the Trustee hereunder, all
investments made therewith and proceeds thereof and all earnings
and profits thereon, unless payments, transfers or other
distributions which, at the time of reference, shall have been
made by the Trustee, as authorized herein. The Fund shall
include all evidences of ownership, interest or participation in
an Investment Vehicle, but shall not, solely by reason of the
Fund's investment therein, be deemed to include any assets of
such Investment Vehicle.
(k) "Insurance Contract" shall mean any contract or policy
of any kind issued by an insurance company, whether or not
providing for the allocation of amounts received by the insurance
4
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company thereunder solely to the general account or solely to one
or more separate accounts (including separate accounts maintained
for the collective investment of qualified retirement plans), or
a combination thereof, and whether or not any such allocation may
be made in the discretion of the insurance company or the Savings
Plan Committee.
(l) "Investment Manager" shall mean a bank, insurance
company or investment adviser satisfying the requirements of
Section 3(38) of ERISA.
(m) "Investment Vehicle" shall mean any common, collective
or commingled trust, investment company, corporation functioning
as an investment intermediary, insurance contract, partnership,
joint venture or other entity or arrangement to which, or
pursuant to which, assets of the Trust may be transferred or in
which the Trust has an interest, beneficial or otherwise (whether
or not the underlying assets thereof are deemed to constitute
"plan assets" for any purpose under ERISA).
(n) "Pension Fund Investment Review Committee" shall mean
the Committee or any Person authorized to act on its behalf
pursuant to Section 13.13 of the Plan.
(o) "Person" shall mean a natural person, trust, estate,
corporation of any kind or purpose, mutual company, joint-stock
company, unincorporated organization, committee, board,
participant, beneficiary, fiduciary or representative capacity,
as the context may require.
(p) "Plan" shall mean the Employee Savings Plan for the
5
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Southern Company System, as amended from time to time. Effective
January 1, 1991, the Plan shall be renamed The Southern Company
Employee Savings Plan.
(q) "Savings Plan Committee" shall mean the Committee or
any Person authorized to act on its behalf pursuant to
Article XIII of the Plan.
(r) "Trust" shall mean the Employee Savings Plan Trust.
(s) "Trust Agreement" shall mean all of the provisions of
this instrument and of all other instruments amendatory hereof.
(t) "Trustee" shall mean Wachovia Bank of Georgia, N.A., as
trustee of the Trust.
(u) "Valuation Date" shall mean the last business day of
each calendar month.
The plural of any term shall have a meaning corresponding to the
singular thereof as so defined and any neuter pronoun used herein
shall include the masculine or feminine, as the context may
require.
1.3 Purpose. The Trust is established to fund the benefits
payable to participants and their beneficiaries under the Plan.
Except as may otherwise be permitted by law and the terms of the
Plan, at no time prior to the satisfaction of all liabilities
with respect to participants and their beneficiaries under the
Plan shall any part of the Fund be used for, or diverted to, any
purposes other than for the exclusive benefit of such
participants and their beneficiaries.
1.4 Effect. All Persons at any time interested in the Plan
6
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shall be bound by the provisions of this Trust Agreement and, in
the event of any conflict between this Trust Agreement and the
provisions of the Plan or any other instrument or agreement
forming part of the Plan, the provisions of this Trust Agreement
shall control.
1.5 Domestic Trust. The Trust shall at all times be
maintained as a domestic trust in the United States.
1.6 Trustee Not Responsible for Enforcing Contributions or
for Sufficiency. The Trustee shall have no responsibility for
enforcing payment of any contribution to the Plan or for the
timing or amount thereof, or for the adequacy of the Fund to meet
or discharge any liabilities of the Plan.
7
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ARTICLE II
Administration of Plan
2.1 Valuations. The Trustee shall determine the value of
the assets of the Fund as of each Valuation Date and shall in the
normal course issue monthly reports to the Company within twenty
(20) days after each Valuation Date. In addition, for the
convenience of the Company and without imposing any obligation on
the Trustee, the Savings Plan Committee may request the Trustee
to include in its periodic reports under this Section 2.1 or in
its monthly account under Section 6.2, assets which do not
constitute part of the Fund. Assets will be valued at their
market values at the close of business on the Valuation Date, or,
in the absence of readily ascertainable market values, at such
values as the Trustee shall determine in accordance with methods
consistently followed and uniformly applied. Anything in this
Trust Agreement to the contrary notwithstanding, with respect to
assets constituting part of a Directed Fund or assets included at
the request of the Savings Plan Committee as hereinabove
provided, the Trustee may rely for all purposes of this Trust
Agreement on the latest valuation and transaction information
submitted to it by the Person responsible for the investment of
such assets even if such information predates the Valuation Date.
The Savings Plan Committee will cause such Person to provide the
Trustee with all information needed by the Trustee to discharge
its obligations to value such assets and to account under this
Trust Agreement.
8
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2.2 Payment of Benefits. On the direction of the Savings
Plan Committee, the Trustee shall pay monies directly to or for
the benefit of participants and their beneficiaries or to a
paying or disbursing agent (which may be the Savings Plan
Committee). Any assets disbursed or paid by the Trustee pursuant
to the foregoing provisions of this Section 2.2 shall no longer
be part of the Fund.
2.3 Reliance on Savings Plan Committee. Any directions
pursuant to Section 2.2 may, but need not, specify the
application to be made of monies so ordered. Each direction to
the Trustee under Section 2.2 shall constitute a certification by
the Savings Plan Committee that such direction is in accordance
with applicable law, the terms of the Plan and the terms of this
Trust Agreement, and the Trustee shall have no duty to make any
independent inquiry or investigation as to any of the foregoing
before acting upon such direction.
2.4 Trustee Not Responsible For Plan Administration. The
Trustee shall not be held responsible in any way respecting the
determination, computation, payment or application of any
benefit, or for any other matter affecting the administration of
the Plan, by the Company or the Savings Plan Committee or any
other Person to whom such responsibility is allocated or
delegated pursuant to the terms of the Plan.
2.5 Participant Records. Except as the Trustee may
otherwise agree in writing, the Trustee shall not be required to
maintain any separate records or accounts with respect to any
9
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participant of the Plan, and any records or accounts required to
be maintained pursuant to the terms of the Plan or to comply with
ERISA or the Code shall be the responsibility of the Savings Plan
Committee.
10
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ARTICLE III
Investment of Trust Assets
3.1 Investment Managers. Subject to the investment of
assets in participant loans pursuant to Section 3.6, the
discretionary authority for the management and control of assets
from time to time held in the Fund and allocated to the Fund B
Equity Fund and the Fund D Index Fund may be retained, allocated
or delegated, as the case may be, for one or more purposes, to
and among the Investment Managers by the Pension Fund Investment
Review Committee, in its absolute discretion. The terms and
conditions of appointment and retention of any Investment Manager
shall be the responsibility of the Board of Directors of the
Company. The terms and conditions of any allocation to an
Investment Manager shall be the responsibility of the Pension
Fund Investment Review Committee. The Pension Fund Investment
Review Committee shall promptly notify the Trustee in writing of
the appointment or removal of an Investment Manager. Any notice
of appointment pursuant to this Section 3.1 shall constitute a
representation and warranty that the Investment Manager has been
appointed in accordance with the provisions of the Plan and that
any Investment Manager (other than the Trustee, the Savings Plan
Committee and the Pension Fund Investment Review Committee) is an
Investment Manager as defined in Section 3(38) of ERISA.
3.2 Investment Discretion. (a) The assets of the Trust
allocated to the Fund B Equity Fund and the Fund D Index Fund
shall be invested and reinvested, without distinction between
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principal and income, at such time or times in such investments
as set forth herein and pursuant to such investment strategies or
courses of action and in such shares and proportions, pursuant to
the investment objectives and guidelines of the Pension Fund
Investment Review Committee, as the Investment Managers in their
sole discretion shall deem advisable.
(b) All amounts allocated to the Fund B Equity Fund shall
be invested and reinvested in such common or capital stocks, such
convertible bonds, convertible notes, debentures or preferred
stocks as are convertible into common or capital stocks, such
debentures accompanied by warrants to purchase common or capital
stocks, and such other types of equity investments as may be
determined by an Investment Manager in its discretion, provided,
however, that no securities issued by, or convertible into
securities of, The Southern Company or any subsidiary or
affiliate of The Southern Company shall be purchased for the
Fund B Equity Fund. It is not intended by this provision,
however, to prohibit the investment of assets of the Fund B
Equity Fund in any commingled trust fund which holds securities
issued by or convertible into securities of The Southern Company
or any subsidiary or affiliate of The Southern Company.
(c) All amounts allocated to the Fund D Index Fund shall be
invested and reinvested without substantial deviation in such
common stock as may be selected from time to time to comprise the
Standard and Poor's Composite Index of 500 Stocks, or through the
medium of any commingled trust funds for collective investment of
12
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securities of the types referred to in this paragraph (c).
3.3 Limitations on Investment Discretion. The Pension Fund
Investment Review Committee may limit, restrict or impose
guidelines affecting the exercise of the discretion herein above
conferred on any Investment Manager. Any limitations,
restrictions or guidelines applicable to the Trustee, as
Investment Manager, shall be communicated in writing to the
Trustee. The Trustee shall have no responsibility with respect
to the formulation of any investment or diversification policies
embodied therein. The Pension Fund Investment Review Committee
shall be responsible for communicating, and monitoring adherence
to, any limitations or guidelines imposed on any other Investment
Manager.
3.4 Responsibility for Diversification. The Trustee shall
not be responsible for determining the diversification policy of
the Directed Fund, for monitoring adherence by the Investment
Managers to such policy, and for advising the Investment Managers
with respect to limitations on employer or other securities or
property contained in the Plan or imposed on the Plan by any
applicable statute, except with respect to any assets comprising
the Discretionary Fund.
3.5 Investment by Trustee. (a) Subject to the investment
of assets in participant loans pursuant to Section 3.6, the
discretionary authority for the management and control of assets
from time to time held in the Fund and allocated to the Fund A
Fixed Income Fund or the Fund C Company Stock Fund shall be
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invested and reinvested by the Trustee, without distinction
between principal and income, in such investments as set forth
herein.
(b) All amounts allocated to the Fund A Fixed Income Fund
shall be invested and reinvested in such direct obligations of
the United States Government or agencies thereof, such
obligations guaranteed as to payment of principal and interest by
the United States Government or agencies thereof, such guaranteed
interest contracts, such corporate bonds, debentures, notes,
certificates or other evidences of indebtedness (including
"marketable obligations" of The Southern Company or of any
subsidiary or affiliate of The Southern Company as that term is
defined in Section 407(e) of ERISA), and such deposits in fully
insured savings accounts, as may be determined by the Trustee in
its discretion, including, if the Trustee so determines, the
transfer from time to time of any part or all of the assets of
the Fund A Fixed Income Fund to the Trustee as trustee of any
commingled trust funds for collective investment in securities of
the types referred to in this Section 3.5(b) established and
maintained by the Trustee for the investment of funds of trusts
of employee benefit plans which trusts are exempt from tax under
Section 501(a) of the Code by reason of qualifying under Section
401(a) of the Code, as amended, including, but not limited to the
Wachovia Diversified Short-Term Income Fund for Qualified
Employee Benefit Trusts.
(c) All amounts allocated to the Fund C Company Stock Fund
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shall be invested and reinvested in shares of common stock of The
Southern Company (hereinafter referred to as "Company Stock").
If Company Stock shall be purchased by private purchase and not
on the open market, the price paid shall not be greater than the
last sale price or highest current independent bid price,
whichever is higher, for Company Stock on the New York Stock
Exchange plus an amount equal to the commission payable in a
stock exchange transaction, and further provided that if such
private purchase shall be a purchase of Company Stock directly
from The Southern Company no commission shall be paid with
respect thereto. The Trustee may purchase Company Stock directly
from The Southern Company under the Dividend Reinvestment and
Stock Purchase Plan of The Southern Company, as from time to time
amended, or under any other similar plan made available to all
holders of shares of common stock of The Southern Company of
record which may be in effect from time to time, at the purchase
price provided for in such plan. Funds applicable to the
purchase of Company Stock pending investment of such funds in
such Company Stock may be held by the Trustee in cash, and may be
temporarily invested in short-term United States Government
obligations, other obligations guaranteed by the United States
Government, or commercial paper and, if the Trustee so
determines, may be transferred to Wachovia Diversified Short-Term
Income Fund for Qualified Employee Benefit Trusts.
(d) To the extent of the equitable share of the Trust in
any collective investment fund of the Trustee in which assets of
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Fund A Fixed Income Fund or Fund C Company Stock Fund may be
invested in accordance with this Section 3.5 (and while any
portion of the Fund is so invested) the equitable share of such
collective investment fund shall constitute a part of the Plan
and the instrument creating such collective investment fund shall
constitute a part of this Trust Agreement.
3.6 Participant Loans. Subject to the terms of Section
11.7 of the Plan, the Savings Plan Committee or its designee may
direct the Trustee to charge the Directed Fund and/or the
Discretionary Fund, or any part thereof, with the principal
amount of any loan made to a participant of the Plan. The
Savings Plan Committee shall segregate on its records the
principal amount of the loan, and the amount so segregated shall
not share in or affect the net income, net loss, net
appreciation, or net depreciation of the other assets of the
Fund. The repayment of principal and interest on such loan shall
be credited to the participant's segregated account and
reinvested in accordance with the participant's investment
direction in effect on the date of such repayment. All expenses
attributable to any participant loan shall be paid by the
Company.
3.7 Liability for Participant Loans. In the event a
participant elects to borrow a portion of his Account, he shall
not be deemed to be a fiduciary of the Plan, as defined in
Section 3(21) of ERISA, by reason of such loan, and neither the
Savings Plan Committee, the Company, the Trustee, any Investment
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Manager, or any other fiduciary with respect to the Plan shall be
liable for
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any loss or breach resulting from the participant's right to
borrow money from his Account under the Plan, except as provided
by Section 4975 of the Code.
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ARTICLE IV
Responsibility for Directed Funds
4.1 Responsibility for Selection of Agents. All
transactions of any kind or nature in or from a Directed Fund
shall be made upon such terms and conditions and from or through
such principals and agents as the Investment Manager shall
direct. No such transactions shall be executed through the
facilities of the Trustee except where the Trustee shall make
available its facilities solely for the purpose of temporary
investment of cash reserves of the Directed Fund.
4.2 Trustee Not Responsible for Investments in Directed
Funds. The Trustee shall be under no duty or obligation to
review or to question any direction of any Investment Manager, or
to review securities or any other property held in any Directed
Fund with respect to prudence or proper diversification or
compliance with any limitation on the Investment Manager's
authority under the terms of the Plan, any agreement entered into
between the Company and the Investment Manager or imposed by
applicable law, or to make any suggestions or recommendations to
the Company, the Savings Plan Committee, the Pension Fund
Investment Review Committee, or the Investment Manager with
respect to the retention or investment of any assets of any
Directed Fund, and shall have no authority to take action or to
refrain from taking any action with respect to any asset of a
Directed Fund unless and until it is directed to do so by the
Investment Manager.
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4.3 Investment Vehicles. Any Investment Vehicle, or
interest therein, acquired by or transferred to the Trustee upon
the direction of the Investment Manager shall be allocated to the
Directed Fund, and the Trustee's duties and responsibilities
under this Trust Agreement shall not be increased or otherwise
affected thereby. The Trustee shall be responsible solely for
the safekeeping of the evidence of the Trust's ownership of or
interest or participation in such Investment Vehicle.
4.4 Reliance on Investment Manager. The Trustee shall be
required under this Trust Agreement to execute documents, to
settle transactions, to take action on behalf of or in the name
of the Trust and to make and receive payments on the direction of
the Investment Manager. Any direction of the Investment Manager
shall constitute a certification to the Trustee (a) that the
transaction will not constitute a prohibited transaction under
ERISA or the Code, (b) that the investment is authorized under
the terms of this Trust Agreement and any other agreement or law
affecting the Investment Manager's authority to deal with the
Directed Fund, (c) that any contract, agency, joinder, adoption,
participation or partnership agreement, deed, assignment or other
document of any kind which the Trustee is required to execute to
effectuate the transaction has been reviewed by the Investment
Manager, and, to the extent it deems advisable and prudent, its
counsel, (d) that such instrument or document is in proper form
for execution by the Trustee, (e) that, where appropriate,
insurance protecting the Trust against loss or liability has been
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or will be maintained in the name of or for the benefit of the
Trustee, and (f) that all other acts to perfect and protect the
Trust's rights have been taken, and the Trustee shall have no
duty to make any independent inquiry or investigation as to any
of the foregoing before acting upon such direction. In addition,
the Trustee shall not be liable for the default of any Person
with respect to any investment in a Directed Fund or for the
form, genuineness, validity, sufficiency or effect of any
document executed by, delivered to or held by it for any Directed
Fund on account of such investment, or if, for any reason (other
than the negligence or wilful misconduct of the Trustee) any
rights of the Trust therein shall lapse or shall become
unenforceable or worthless.
4.5 Merger of Funds. The Trustee shall not have any
discretionary responsibility or authority to manage or control
any asset held in a Directed Fund upon the resignation or removal
of an Investment Manager unless and until it has been notified in
writing by the Pension Fund Investment Review Committee that the
Investment Manager's authority has terminated and that such
Directed Fund's assets are to be integrated with the
Discretionary Fund. Such notice shall not be deemed effective
until two Bank Business Days after it has been received by the
Trustee. The Trustee shall not be liable for any losses to the
Fund resulting from the disposition of any investment made by the
Investment Manager or for the retention of any illiquid or
unmarketable investment or any investment which is not widely
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publicly traded or for the holding of any other investment
acquired by the Investment Manager if the Trustee is unable to
dispose of such investment because of any restrictions imposed by
the Securities Act of 1933 or other Federal or state law, or if
an orderly liquidation of such investment is impractical under
prevailing conditions, or for failure to comply with any
investment limitations imposed pursuant to Section 4.2, or for
any other violation of the terms of this Trust Agreement, the
Plan or applicable law as a result of the addition of Directed
Fund assets to the Discretionary Fund.
4.6 Notification of Savings Plan Committee in Event of
Breach. If Trustee has knowledge of a breach committed by an
Investment Manager, it shall notify either the Savings Plan
Committee or the Company, and the Company shall thereafter assume
full responsibility to all Persons interested in the Plan to
remedy such breach.
4.7 Definition of Knowledge. While the Trustee will
perform certain duties (such as custodial, reporting, recording,
valuation and bookkeeping functions) with respect to Directed
Funds, such duties will not involve the exercise of any
discretionary authority to manage or control the assets of the
Directed Funds and will be the responsibility of officers or
other employees of the Trustee who are unfamiliar with and have
no responsibility for investment management. Therefore, the
Company agrees that in the event that knowledge of the Trustee
shall be a prerequisite to imposing a duty upon or to determining
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liability of the Trustee under this Trust Agreement or any
statute regulating the conduct of the Trustee with respect to
such Directed Funds or relieving the Company of its undertakings
under Section 13.2, the Trustee will not be deemed to have
knowledge of, or to have participated in, any act or omission of
an Investment Manager involving the investment of assets
allocated to the Directed Funds as a result of the receipt and
processing of information in the course of performing such
duties.
4.8 Duty to Enforce Claims. Except to the extent that
ERISA may provide or require otherwise, the Trustee shall have no
duty to commence or maintain any action, suit or legal proceeding
on behalf of the Trust on account of or growing out of any
investment made in or for a Directed Fund unless the Trustee has
been directed to do so by the Investment Manager and unless the
Trustee is either in possession of funds sufficient for such
purpose or unless it has been indemnified by the Company or the
Investment Manager, to its satisfaction, for counsel fees, costs
and other expenses and liabilities to which it, in its sole
judgment, may be subjected by beginning or maintaining such
action, suit or legal proceeding.
4.9 Restrictions on Transfer. Nothing herein shall be
deemed to empower any Investment Manager to direct the Trustee to
transfer any asset of a Directed Fund to such Investment Manager
except for purposes enumerated in Section 5.1.
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ARTICLE V
Powers of Investment Managers and Trustee
5.1 Powers of Investment Managers. Without in any way
limiting the powers and discretion conferred upon any Investment
Manager by the other provisions of this Trust Agreement or by
law, each Investment Manager shall be vested with the following
powers and discretion with respect to the assets of the Trust
subject to its management and control, and, upon the directions
of the Investment Manager of a Directed Fund, the Trustee shall
make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that
may be necessary or appropriate to enable such Investment Manager
to carry out such powers and discretion:
(a) to sell, exchange, convey, transfer or otherwise
dispose of any property by private contract or at public auction,
and no person dealing with the Investment Manager shall be bound
to see to the application of the purchase money or to inquire
into the validity, expediency or propriety of any such sale or
other disposition;
(b) to enter into contracts or to make commitments either
alone or in company with others to sell or acquire property;
(c) to purchase or sell, write or issue, puts, calls or
other options, covered or uncovered, to enter into financial
futures contracts, forward placement contracts and standby
contracts, and in connection therewith, to deposit, hold (or
direct the Trustee, in its individual capacity, to deposit or
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hold) or pledge assets of the Fund;
(d) to vote any stocks, bonds or other securities (but
subject to the suspension of any voting rights as a result of any
broker loan or similar agreement); to give general or special
proxies or powers of attorney with or without power of
substitution; to exercise any conversion privileges, subscription
rights or other options and to make any payments incidental
thereto; to consent to or otherwise participate in corporate
reorganizations or other changes affecting corporate securities
and to delegate discretionary powers and to pay any assessments
or charges in connection therewith; and generally to exercise any
of the powers of an owner with respect to stocks, bonds,
securities or other property;
(e) to invest in a fund consisting of securities issued by
a corporation and selected and retained solely because of their
inclusion in, and in accordance with, one or more commonly used
indices of such securities, with the objective of providing
investment results for the fund which approximate the overall
performance of such designated index;
(f) to purchase units or certificates issued by an
investment company or pooled trust or comparable entity;
(g) to transfer assets of the Directed Fund to a common,
collective or commingled trust fund exempt from tax under the
Code maintained by an Investment Manager or an affiliate of an
Investment Manager or by another trustee who is designated by the
Company, to be held and invested subject to all of the terms and
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conditions thereof, and such trust shall be deemed adopted as
part of the Trust and the Plan to the extent that assets of the
Trust are invested therein; provided, however, that any transfer
from a Directed Fund to the Trust may be made only with the prior
approval of the Trustee and shall be invested only in one or more
short-term investment funds established from time to time
thereunder; and
(h) to be reimbursed for the expenses incurred in
exercising any of the foregoing powers or to pay the reasonable
expenses incurred by any agent, manager or trustee appointed
pursuant thereto.
5.2 Powers of Trustee. Subject to the provisions of
Section 3.5, the Trustee is authorized and empowered in its
discretion, but not by way of limitation:
(a) to sell, exchange, convey, transfer or otherwise
dispose of any property at any time held by it, by private
contract or at public auction, for cash or on credit, upon such
conditions, at such prices and in such manner as the Trustee
shall deem advisable, and no person dealing with the Trustee
shall be bound to see to the application of the purchase money or
to inquire into the validity, expediency or propriety of any such
sale or other disposition;
(b) for the purpose of the Trust, to borrow money from
others, to issue the Trust's promissory note or notes therefor,
and to secure the repayment thereof by pledging any property in
its possession;
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(c) to collect and receive any and all money and other
property due to the Fund and to give full discharge therefor;
(d) to exercise all voting rights with respect to any
investment, except that it will vote the Company Stock in
accordance with the provisions of the Plan; to grant proxies,
discretionary or otherwise;
(e) to enter into stand-by agreements for future
investments, either with or without a stand-by fee;
(f) to make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers herein granted;
(g) generally, to do all acts whether or not expressly
authorized, which the Trustee may deem necessary or desirable for
the protection of the Fund;
(h) to register any securities held in the Fund in its own
name or in the name of a nominee and to hold any securities in
bearer form, and to combine certificates of the same issue held
by the Trustee in other fiduciary or representative capacities or
as agent for customers, or to deposit or arrange for the deposit
of such securities in any qualified central depository even
though, when so deposited, such securities may be merged and held
in bulk in the name of the nominee of such depository with other
securities deposited therein by other depositors, or to deposit
or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with
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a Federal Reserve Bank, but the books and records of the Trustee
shall at all times show that all such investments are part of the
Fund;
(i) to employ suitable agents, depositories and counsel,
domestic or foreign, and to charge their reasonable expenses and
compensation as provided herein against the Fund, and to confer
upon any such depository the power to appoint sub-agents and
depositories, wherever situated, in connection with the retention
of securities or other property;
(j) to deposit funds in interest bearing account deposits
maintained by or savings certificates issued by the Trustee, in
its separate corporate capacity, or in any other banking
institution affiliated with the Trustee;
(k) to compromise or otherwise adjust all claims in favor
of or against the Fund other than claims solely affecting the
right of any Person to benefits under the Plan;
(l) to make any distribution or transfer of assets
authorized under Article VII or IX in cash or in kind as the
Trustee, in its absolute discretion, shall determine and, in
furtherance thereof, to value such assets, which valuation shall
be conclusive and binding on all persons;
(m) upon the direction of the Pension Fund Investment
Review Committee, to maintain and operate one or more market
inventory funds as a vehicle to exchange securities among
Discretionary and Directed Funds without alienating the property
from the Trust;
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(n) to hold uninvested cash balances when reasonable and
necessary, without incurring any liability for the payment of
interest thereon, provided that in no event shall uninvested cash
balances be held solely for the purpose of awaiting investment;
(o) to appoint suitable agents, including the Company, (1)
to distribute required shareholder notices and proxy information
to Plan participants, (2) to tabulate the voting of shares by
Plan participants and provide a certification of the voting
instructions received from the Plan participants, and (3) to
provide such other information as may be necessary to enable the
Trustee to vote the shares of common stock in The Southern
Company as directed by the participants; and
(p) to appoint suitable agents, including the Savings Plan
Committee, to hold any promissory notes executed by the Plan
participants evidencing participant loans made pursuant to
Section 11.7 of the Plan.
5.3 Prior Consent. The discretionary powers conferred
under paragraph (c) of Section 5.1 and paragraph (l) of Section
5.2 shall be exercised only with the prior written consent of the
Pension Fund Investment Review Committee.
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ARTICLE VI
Records and Accounts of Trustee
6.1 Records. The Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other
transactions in the Fund and all accounts, books and records
relating thereto shall be open to inspection and audit at all
reasonable times during normal business hours by any Person
designated by the Savings Plan Committee.
6.2 Monthly Account. Within sixty (60) days following the
close of each Accounting Period, the Trustee shall file with the
Savings Plan Committee, in accordance with Section 12.5 of the
Trust Agreement, a written account setting forth the receipts and
disbursements of the Fund and the investments and other
transactions effected by it upon its own authority or pursuant to
the directions of any Person as herein provided during the
Accounting Period.
6.3 Account Stated. The Company agrees that it will use
reasonable efforts to file all objections, if any, to the
Trustee's monthly or other account in writing with the Trustee
within ninety (90) days of the filing of such monthly or other
account with the Savings Plan Committee.
6.4 Judicial Accounting. Nothing herein shall in any way
limit the Trustee's right to bring any action or proceeding in a
court of competent jurisdiction to settle its account or for such
other relief as it may deem appropriate.
6.5 Necessary Parties. Except to the extent that Sections
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502 and 504 of ERISA may provide otherwise, in order to protect
the Fund from the expense of litigation, no Person other than the
Company shall be a necessary party in any proceeding under
Section 6.4 or may require the Trustee to account or may
institute any other action or proceeding against the Trustee or
the Trust.
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ARTICLE VII
Compensation, Taxes and Expenses
7.1 Compensation, Taxes and Expenses. All brokerage costs
and transfer taxes incurred in connection with the investment and
reinvestment of the Fund, transfer taxes on the transfer of
Company Stock from the Trustee to a participant or his
beneficiary, all expenses incurred in connection with the
acquisition or holding of any property and all income taxes or
other taxes of any kind which may be levied or assessed under
existing or future laws upon or in respect of the Fund, shall be
paid from the Fund, and, until paid, shall constitute a charge
upon said Fund. All other administrative expenses incurred by
the Trustee in the performance of its duties including fees for
legal services rendered to the Trustee, such compensation to the
Trustee as may be agreed upon from time to time between the
Company and the Trustee and evidenced by a writing signed by an
officer of the Company, and all other proper charges and
disbursements of the Trustee, shall be paid by the Company, but
until paid shall constitute a charge upon the Fund, and if not
paid by the Company within ninety (90) days after becoming due
may be withdrawn from the Fund.
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ARTICLE VIII
Resignation or Removal of Trustee
8.1 Resignation or Removal. The Trustee may be removed by
the Company at any time upon sixty (60) days' notice in writing
to the Trustee or upon such lesser or greater notice as the
Company and the Trustee may agree. The Trustee may resign at any
time upon sixty (60) days' notice in writing to the Company, or
upon such lesser or greater notice as the Company and the Trustee
may agree.
8.2 Designation of a Successor. Upon the removal or
resignation of the Trustee, the Company shall either appoint a
successor trustee who shall have the same powers and duties as
those conferred upon the Trustee hereunder, and upon acceptance
of such appointment by the successor trustee, the Trustee shall
assign, transfer and pay over the Fund to such successor or
trustee, or the Company shall direct that the Fund be transferred
directly to the trustee of another trust which is qualified as a
tax exempt trust under the provisions of the Code. Any such
assignment or transfer of the Fund shall be effectuated no later
than the last day of the month in which the sixty (60) day notice
period, as described in Section 8.1 expires. If, for any reason,
the Company cannot or does not act promptly to appoint a
successor trustee, or direct the transfer of the Fund to another
qualified trust in the event of the resignation or removal of the
Trustee, the Trustee may apply to a court of competent
jurisdiction for the appointment of a successor trustee. Any
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expenses incurred by the Trustee in connection therewith shall be
charged to and paid from the Fund as an expense of
administration.
8.3 Reserve for Expenses. The Trustee is authorized to
reserve such amount which may reasonably be required for payments
of its fees and expenses in connection with the settlement of its
account or otherwise, and any balance of such reserve remaining
after the payment of such fees and expenses shall be paid over in
accordance with the directions of the Company under Section 8.2.
The Trustee is authorized to invest such reserves in any
investment authorized under the terms of this Trust.
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ARTICLE IX
Segregation of Fund
9.1 Segregation of Fund. The Company may at any time
direct the Trustee to segregate and set apart such portion of the
Fund as the Savings Plan Committee shall determine to be held as
a separate trust fund for the exclusive benefit of any group of
participants and their beneficiaries under a separate agreement
of trust substantially identical with this Agreement. In such
event the selection of the particular assets so to be segregated
shall be made by the Trustee and the Trustee shall segregate such
assets in accordance with the written order of the Savings Plan
Committee. Unless otherwise directed by the Company pursuant to
this Section 9.1, the Trustee shall hold, invest and administer
the Fund as a single fund divided as provided in Sections 3.2 and
3.5, but without identification of any part of the Fund with or
allocation of any part of the Fund to the Company or to any
subsidiary or affiliate of The Southern Company designated by the
Company as a participating company under the Plan or to any Plan
participant or group of Plan participants of the Company or of
any such subsidiary or affiliate or their beneficiaries.
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ARTICLE X
Amendment or Termination
10.1 Amendment. Subject to Section 1.3, the Company
reserves the right at any time and from time to time to amend, in
whole or in part, any or all of the provisions of this Trust
Agreement by notice thereof in writing delivered to the Trustee;
provided, however, that no amendment which affects the rights,
duties or responsibilities of the Trustee may be made without its
prior written consent.
10.2 Termination. Subject to Section 1.3, the Company
reserves the right to terminate this Trust Agreement in its
entirety by notice in writing thereof delivered to the Trustee.
In the event of termination, the Trustee shall hold and/or
dispose of the Fund, or any portion thereof, after the payment of
or other provision for any of the expenses of the Trust
(including any compensation to which the Trustee may be
entitled), all in accordance with the written directions of the
Company. In the event that termination results from the removal
of the Trustee, then such disposition shall be implemented in
accordance with the provisions of Article VIII or Article X, as
the case may be.
10.3 Trustee's Authority to Survive Termination. Until the
final distribution of the Fund, the Trustee shall continue to
have and may exercise all of the powers and discretion conferred
upon it by this Trust Agreement.
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ARTICLE XI
Authorities
11.1 Company. Whenever the provisions of this Agreement
specifically require or permit any action to be taken by the
Company, such action must be authorized or ratified by the Board
of Directors or by any designee or committee authorized by the
Board of Directors to act on behalf of the Company. Any
resolution adopted by the Board of Directors or by such
authorized designee or committee or other evidence of such
authorization or ratification shall be certified to the Trustee
by the Secretary or an Assistant Secretary of the Company under
its corporate seal, and the Trustee may rely upon any
authorization so certified until revoked or modified by a further
action of the Board of Directors or by such authorized designee
or committee similarly certified to the Trustee.
11.2 Savings Plan Committee. The Company shall furnish the
Trustee from time to time with a list of the names and signatures
of all Persons (other than the Company) authorized to act as the
Company designee under Section 1.2(a), as members of the Savings
Plan Committee or in any other manner authorized to issue orders,
notices, requests, instructions and objections to the Trustee
pursuant to the provisions of this Trust Agreement. Any such
list shall be certified by the Secretary or an Assistant
Secretary of the Company and may be relied upon for accuracy and
completeness by the Trustee. Each such Person shall thereupon
furnish the Trustee with a list of the names and signatures of
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those individuals who are authorized, jointly or severally, to
act for such Person hereunder, and the Trustee shall be fully
protected in acting upon any notices or directions received from
any of them.
11.3 Pension Fund Investment Review Committee. The Company
shall furnish the Trustee, from time to time, with a list of
names and signatures of all Persons (other than the Company)
authorized to act as a Company designee as members of the Pension
Fund Investment Review Committee authorized to issue orders,
notices, requests, instructions, and objections to the Trustee
pursuant to the provisions of this Trust Agreement. Any such
list shall be certified by the Secretary or an Assistant
Secretary of the Company and may be relied upon for accuracy and
completeness by the Trustee. Each such Person shall thereupon
furnish the Trustee with a list of the names and signatures of
those individuals who are authorized, jointly and separately, to
act as such Person hereunder and the Trustee shall be fully
protected in acting upon any notices or directions received from
any of them.
11.4 Investment Manager. The Pension Fund Investment
Review Committee shall cause each Investment Manager to furnish
the Trustee from time to time with the names and signatures of
those Persons authorized to direct the Trustee on its behalf
hereunder.
11.5 Form of Communications. Any agreement between the
Company and Person (including an Investment Manager) or any other
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provision of this Trust Agreement to the contrary
notwithstanding, all notices, directions and other communications
to the Trustee shall be in writing or in such other form,
including transmission by electronic means through the facilities
of third parties or otherwise, specifically agreed to in writing
by the Trustee, and the Trustee shall be fully protected in
acting in accordance therewith.
11.6 Continuation of Authority. The Trustee shall have the
right to assume, in the absence of written notice to the
contrary, that no event constituting a change in the membership
of the Savings Plan Committee or the Pension Fund Investment
Review Committee or terminating the authority of any Person,
including any Investment Manager, has occurred.
11.7 No Obligation to Act on Unsatisfactory Notice. The
Trustee shall incur no liability under this Trust Agreement for
any failure to act pursuant to any notice, direction or any other
communication from any Investment Manager, the Company, the
Savings Plan Committee, Pension Fund Investment Review Committee
or any other Person or the designee of any of them unless and
until it shall have received instructions in a form satisfactory
to it.
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ARTICLE XII
General Provisions
12.1 Governing Law. To the extent that state law shall not
have been preempted by the provisions of ERISA or any other law
of the United States heretofore or hereafter enacted, this Trust
Agreement shall be administered, construed and enforced according
to the laws of the State of Georgia.
12.2 Entire Agreement. The Trustee's duties and
responsibilities to the Plan or any Person interested therein
shall be limited to those specifically set forth in this Trust
Agreement, except as may otherwise be provided by applicable law.
No amendment to the Plan or agreement or instrument affecting the
Plan or any other document shall increase the Trustee's duties or
responsibilities hereunder without its prior written consent.
12.3 Reliance on Experts. The Trustee may consult with
experts (who may be experts employed by the Company), including
legal counsel, appraisers, pricing services, accountants or
actuaries, selected by it with due care with respect to the
meaning and construction of this Trust Agreement or any provision
hereof, or concerning its power and duties hereunder, and shall
be protected for any action taken or omitted by it on the basis
of the opinion of any such expert, to the extent that such action
or omission does not constitute negligence or does not violate
applicable law.
12.4 Successor to the Trustee. Any successor, by merger or
otherwise, to substantially all of the Trust business of the
40
<PAGE>
Trustee shall automatically and without further action become the
Trustee hereunder, subject to all the terms and conditions and
entitled to all the benefits and immunities hereof.
12.5 Notices. All notices, reports, monthly accounts and
other communications to the Company, the Savings Plan Committee,
the Pension Fund Investment Review Committee, Investment
Managers, or any other Person shall be deemed to have been duly
given if mailed, postage prepaid, or delivered in hand to such
Person at its address appearing on the records of the Trustee,
which address shall be filed with the Trustee at the time of the
establishment of the Trust and shall be kept current thereafter
by the Committee. All directions, notices, statements,
objections and other communications to the Trustee shall be
deemed to have been given when received by the Trustee at its
offices.
12.6 Plan Documents. The Savings Plan Committee shall
provide the Trustee with a complete, current copy of the Plan and
its most recent tax qualification letter. The Trustee shall be
entitled to rely upon the Saving Plan Committee's attention to
this obligation and shall be under no duty to inquire of any
Person as to the existence of any documents not provided
hereunder.
12.7 No Waiver; Reservation of Rights. The rights,
remedies, privileges and immunities expressed herein are
cumulative and are not exclusive, and the Trustee and the Company
shall be entitled to claim all other rights, remedies, privileges
41
<PAGE>
and immunities to which it may be entitled under applicable law,
except as may be otherwise provided by this Trust Agreement.
12.8 Descriptive Headings. The captions in this Trust
Agreement are solely for convenience of reference and shall not
define or limit the provisions hereof.
42
<PAGE>
ARTICLE XIII
Undertaking by Company
13.1 Undertaking. In consideration of the Trustee's
agreeing to enter into this Trust Agreement, the Company hereby
agrees to hold harmless the Trustee, individually and as Trustee,
and its directors, officers, and employees, from and against all
amounts, including, without limitation, taxes, expenses
(including reasonable counsel fees), liabilities, claims,
damages, actions, suits or other charges, incurred by or assessed
against the Trustee, individually or as Trustee, or its
directors, officers or employees, (a) as a direct or indirect
result of anything done in good faith, or alleged to have been
done, by or on behalf of the Trustee in reliance upon the
directions of any Investment Manager, the Savings Plan Committee,
or the Pension Fund Investment Review Committee, or anything
omitted, in the absence of such directions, or (b) as a direct or
indirect result of the failure of the Company, the Savings Plan
Committee, or the Pension Fund Investment Review Committee,
directly or indirectly, to adequately, carefully and diligently
discharge its fiduciary responsibilities with respect to the
investments of Plan assets by the Savings Plan Committee, the
Pension Fund Investment Review Committee or an Investment
Manager.
13.2 Limitation on Undertaking. Anything hereinabove to
the contrary notwithstanding, the Company shall have no
responsibility to the Trustee under Section 13.1 if the Trustee
43
<PAGE>
knowingly participated in or knowingly concealed any act or
omission of any Person described in such Section 13.1 of the
Trust Agreement knowing that such act or omission constituted a
breach of such Person's fiduciary responsibilities, or if the
Trustee fails to perform any of the duties specifically
undertaken by it under the provisions of this Trust Agreement, or
if the Trustee fails to act in conformity with duly given and
authorized directions hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be executed by their respective officers
thereunto duly authorized and their corporate seals to be
hereunto affixed and attested as of the day and year first
written above.
SOUTHERN COMPANY SERVICES, INC.
By: /s/Bob Andrews
Attest:
By: /s/ Tommy Chisholm
[CORPORATE SEAL]
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/Raymond H. Sapp
Attest:
By: /s/ Gary Skutt
[CORPORATE SEAL]
44
<PAGE>
STATE OF GEORGIA )
: ss.:
COUNTY OF FULTON )
On this 31st day of March, 1992, before me personally came
Bob Andrews to me known, who, being by me duly sworn, did depose
and say that he resides at 711 Dunbar Dr., Dunwoody GA 30338;
that he is Vice President of Southern Company Services, Inc., one
of the corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that is
was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
/s/ Mary Ann Weaver
Notary Public
Notary Public, Gwinnett County, Georgia
My Commission Expires August 20, 1995
STATE OF GEORGIA )
: ss.:
COUNTY OF FULTON )
On this 15th day of April, 1994, before me personally came
Raymond H. Sapp to me known, who, being by me duly sworn, did
depose and say that he resides at 3970 Elmscourt Dr., Stone
Mountain, GA 30083; that he is Vice President of Wachovia Bank
of Georgia, N.A., one of the corporations described in and which
executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that is was so affixed by order of the Board of
Directors of said corporation, and that he signed his name
thereto by like order.
/s/Shirley A. Tanksley
Notary Public
Notary Public, Clayton, Georgia
My Commission Expries January 15, 1996
45
<PAGE>
Exhibit B-4(b)
THIRD AMENDMENT TO
THE SOUTHERN COMPANY
EMPLOYEE STOCK OWNERSHIP PLAN
WHEREAS, the Board of Directors of Southern Company
Services, Inc. (hereinafter referred to as the "Company")
heretofore adopted the amendment and restatement of The Southern
Company Employee Stock Ownership Plan (hereinafter referred to as
the "Plan"), effective January 1, 1989, in order to comply with
the Internal Revenue Code of 1986, as amended (hereinafter
referred to as the "Code"); and
WHEREAS, the Plan was subsequently amended by adoption of
the First and Second Amendments; and
WHEREAS, the Board of Directors of the Company desires to
amend the Plan in order to accommodate the merger of the Employee
Stock Ownership Plan of Savannah Electric and Power Company into
the Plan and to include Savannah Electric and Power Company as an
Employing Company, as such term is defined in the Plan, each to
be effective as of January 1, 1993; and
WHEREAS, the Board of Directors of the Company is authorized
pursuant to Section 11.1 of the Plan to amend the Plan at any
time.
NOW, THEREFORE, effective January 1, 1993, the Board of
Directors of the Company hereby amends the Plan as follows:
I.
Section 2.13 of the Plan shall be amended by deleting said
Section in its entirety and substituting therefor the following
language:
2.13 "Employee" shall mean any person who is
currently employed by an Employing Company as a regular
full-time employee, a part-time employee or a
cooperative employee. Any person who was employed by
Electric City Merchandise Company, Inc. between May 1,
1988 and December 31, 1991 (the date of dissolution of
Electric City Merchandise Company, Inc.) shall not be
considered an Employee for such period and shall not be
entitled to participate under the Plan for such period.
A "leased employee", as said term is defined in Section
414(n) of the Code, shall not be considered an Employee
and shall not be entitled to participate under the
Plan.
II.
Section 2.14 of the Plan shall be amended by deleting said
Section in its entirety and substituting therefor the following
language:
<PAGE>
2.14 "Employing Company" shall mean the Company
and any affiliate or subsidiary of The Southern Company
which the Board of Directors may from time to time
determine to bring under the Plan and which shall adopt
the Plan, and any successor of them.
The Employing Companies as of January 1, 1993 are:
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric and Power Company
Southern Company Services, Inc.
Southern Electric International, Inc.
Southern Nuclear Operating Company, Inc.
III.
Amend Section 2.30 of the Plan by deleting Subsection (b)
thereof in its entirety and substituting therefor the following
language:
(b) In respect of an Employee of an Employing
Company who transfers to an Employing Company from
Savannah Electric and Power Company on or before
December 31, 1992, his credited years of service under
the Employee Stock Ownership Plan of Savannah Electric
and Power Company for actual service while employed at
Savannah Electric and Power Company as of his date of
transfer. Effective as of January 1, 1993, Savannah
Electric and Power Company shall become an Employing
Company under this Plan and Years of Service in respect
of an Employee of Savannah Electric and Power Company
shall be determined under the first paragraph of this
Section 2.38.
IV.
Amend Section 6.1 of the Plan by adding the following
language as the second paragraph thereof:
Effective as of January 1, 1993, the Committee
shall also establish a separate Account for each
Particpant, with separate subaccounts as the Committee
shall direct, as is necessary to reflect a
Participant's interest in the Plan resulting from the
transfer of his accounts from the Employee Stock
Ownership Plan of Savannah Electric and Power Company
(the "SEPCO Plan") due to the merger of the SEPCO Plan
into this Plan effective as of January 1, 1993. Any
such Accounts so established shall be subject to the
terms and conditions of this Plan.
- 2 -
<PAGE>
V.
Notwithstanding any provision of this Third Amendment to the
contrary, the following is adopted to override existing Plan
language:
Code 411(d)(6) Protected Benefits.
Notwithstanding any of the foregoing, this amendment to
effectuate the merger of the SEPCO Plan into this Plan
may not decrease a Participant's accrued benefit,
except to the extent permitted under Section 412(a)(8)
of the Code, and may not reduce or eliminate Code
Section 411(d)(6) protected benefits determined
immediately prior to the adoption date (or, if later,
the effective date) of the amendment. The Committee
shall disregard any part of this amendment or the Plan
to the extent that application of such would fail to
satisfy this paragraph. If the Committee disregards
any portion of this amendment or the Plan because it
would eliminate a protected benefit, the Committee
shall maintain a schedule of any such impacted early
retirement option or other optional forms of benefit
and the Plan must continue such for the affected
Participants.
VI.
Except as amended herein by this Third Amendment, the Plan
shall remain in full force and effect as amended and restated by
the Company prior to the adoption of this Third Amendment.
IN WITNESS WHEREOF, Southern Company Services, Inc., through
its duly authorized officers, has adopted this Third Amendment to
The Southern Company Employee Stock Ownership Plan this 21st day
of December, 1992, to be effective as stated herein.
SOUTHERN COMPANY SERVICES, INC.
By: /s/William C. Archer III
Its: Vice President
ATTEST:
By: /s/Tommy Chisholm
Its: Vice President and Secretary
[CORPORATE SEAL]
- 3 -
<PAGE>
FOURTH AMENDMENT TO THE
SOUTHERN COMPANY EMPLOYEE STOCK OWNERSHIP PLAN
WHEREAS, the Board of Directors of Southern Company
Services, Inc. (hereinafter referred to as the "Company")
heretofore adopted the amendment and restatement of The Southern
Company Employee Stock Ownership Plan (hereinafter referred to as
the "Plan"), effective as of January 1, 1989, in order to comply
with the Internal Revenue Code of 1986, as amended; and
WHEREAS, the Board of Directors of the Company desires to
amend the Plan in order to include Southern Communications
Services, Inc. as an Adopting Employer; and
WHEREAS, the Board of Directors of the Company is authorized
pursuant to Section 11.1 of the Plan to amend the Plan at any
time.
NOW, THEREFORE, effective as of the date hereof, the Board
of Directors of the Company hereby amends the Plan as follows:
I.
Section 2.13 of the Plan shall be amended by deleting said
Section in its entirety and substituting therefor the following
language:
2.13 "Employing Company" shall mean the Company
and any affiliate or subsidiary of The Southern Company
which the Board of Directors may from time to time
determine to bring under the Plan and which shall adopt
the Plan, and any successor of them.
The Employing Companies as of April 1, 1994 are:
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric and Power Company
Southern Company Services, Inc.
Southern Electric International, Inc.
Southern Nuclear Operating Company, Inc.
<PAGE>
The term "Employing Company" shall also include
Southern Communications Services, Inc. effective upon
the adoption of the Plan by the Board of Directors of
Southern Communications Services, Inc.
II.
Except as amended herein by this Fourth Amendment, the Plan
shall also remain in full force and effect as amended and
restated by the Company prior to the adoption of this Fourth
Amendment.
IN WITNESS WHEREOF, Southern Company Services, Inc. through
its duly authorized officers, has adopted this Fourth Amendment
to The Southern Company Employee Stock Ownership Plan this 19th
day of July, 1994, to be effective as stated herein.
SOUTHERN COMPANY
SERVICES, INC.
By: /s/ William C. Archer, III
Its: Vice President
ATTEST:
By: /s/Tommy Chisholm
Its: Vice President and Secretary
[CORPORATE SEAL]
- 2 -
<PAGE>
EXHIBIT B-5
EMPLOYEE STOCK OWNERSHIP PLAN
TRUST AGREEMENT
BETWEEN
SOUTHERN COMPANY SERVICES, INC.
AND
WACHOVIA BANK OF GEORGIA, N.A.
<PAGE>
TABLE OF CONTENTS
Article I Establishment of Trust . . . . . . . . . . . . 3
Article II General Duties of the Trustee;
Payments from the Fund . . . . . . . . . 4
Article III Investment of the Trust Fund . . . . . . . . . 5
Article IV Powers of the Trustee . . . . . . . . . . . . 7
Article V Administrative Expenses, Taxes,
and Trustee's Compensation . . . . . . . 10
Article VI Trustee's Liability . . . . . . . . . . . . . 11
Article VII Settlement of Trustee's Accounts . . . . . . . 12
Article VIII Resignation and Removal of Trustee . . . . . . 14
Article IX Evidence of Company and Committee
Action and Committee Membership . . . . . 16
Article X Termination of Plan . . . . . . . . . . . . . 18
Article XI Segregation of Trust Fund . . . . . . . . . . 19
Article XII Amendment of Agreement . . . . . . . . . . . . 20
Article XIII Exclusive Benefit . . . . . . . . . . . . . . 21
Article XIV Qualification of the Plan and Trust . . . . . 22
Article XV Alienation of Benefits . . . . . . . . . . . . 23
Article XVI Governing Laws . . . . . . . . . . . . . . . . 24
<PAGE>
AGREEMENT OF TRUST
Trust Agreement, as a total amendment and restatement of that
certain Agreement of Trust by and between Southern Company
Services, Inc. and Wachovia Bank of Georgia, N.A., dated
January 1, 1976, is hereby entered into this 31st day of March,
1992, effective as the 1st day of January, 1992 by and between
SOUTHERN COMPANY SERVICES INC. (hereinafter referred to as the
"Company") and WACHOVIA BANK OF GEORGIA, N.A., as Trustee
(hereinafter referred to as the "Trustee").
W I T N E S S E T H
WHEREAS, the Company heretofore adopted the Employee Stock
Ownership Plan of The Southern Company System (hereinafter
referred to as the "Plan") for the exclusive benefit of eligible
employees of the Company (and of such of the affiliates or
subsidiaries of The Southern Company as have been or may from
time to time be authorized by the Board of Directors of the
Company to participate in the Plan and have adopted the Plan) and
their beneficiaries; and
WHEREAS, the Company has deemed it to be in the best
interest of the participants and their beneficiaries to amend and
restate the Trust contemporaneously with the amendment and
restatement of the Plan; and
WHEREAS, Wachovia Bank of Georgia, N.A. is willing to
continue to act as trustee of the Trust upon all the terms and
conditions hereinafter set forth.
<PAGE>
NOW, THEREFORE, the Southern Company Services, Inc. and
Wachovia Bank of Georgia, N.A., as Trustee hereby declare and
agree that Wachovia Bank of Georgia, N.A. shall receive hold and
administer all sums of money and such other property acceptable
to Wachovia Bank of Georgia, N.A. as shall from time to time be
contributed, paid, or delivered to it hereunder, IN TRUST, upon
all of the following terms and conditions.
- 2 -
<PAGE>
Article I
Establishment of Trust
1.1 The Company hereby establishes with the Trustee,
pursuant to the Plan, a trust (hereinafter referred to as the
"Trust") which shall comprise such sums of money and such
property acceptable to the Trustee as shall from time to time be
paid or delivered to the Trustee, and the earnings thereon. All
such money and property, all investments made therewith and
proceeds thereof and all earnings and profits thereon, less the
payments and distributions which at the time of reference shall
have been made by the Trustee in accordance with this Agreement,
are hereinafter referred to as the "Trust Fund". The Trust Fund
shall be held by the Trustee in trust in accordance with the
provisions of this Agreement.
1.2 The Trustee hereby accepts the Trust created by this
Agreement on the terms and conditions herein set forth.
1.3 The Trust shall at all times be maintained as a
domestic trust in the United States.
- 3 -
<PAGE>
Article II
General Duties of the Trustee;
Payments from the Fund
2.1 It shall be the duty of the Trustee (a) to hold, to
invest and to reinvest the Trust Fund, and (b) to make payments
and distributions of principal or income pursuant to the Plan
from the Trust Fund to or on the written order of the Employee
Stock Ownership Plan Committee which is provided for in the Plan
(hereinafter referred to as the "Committee"). The Committee is
vested with authority to control and manage the operation and
administration of the Plan. Orders from the Committee need not
specify the purpose of the payments so ordered, and the Trustee
shall not be responsible in any way respecting the purpose or
propriety of such payments or for the administration of the Plan.
Any such order shall constitute a certification that the payment
directed is one which the Committee is authorized to direct. The
Trustee shall be under no duty to enforce payment of any
contribution and shall not be responsible for the adequacy of the
Trust Fund to meet and discharge any liability under the Plan.
It is expressly understood that the duties and obligations of the
Trustee shall be only those expressly state in this Agreement.
If a dispute arises as to who is entitled to or should receive
any benefit or payment, the Trustee may withhold or cause to be
withheld such payment until the dispute has been resolved.
- 4 -
<PAGE>
Article III
Investment of the Trust Fund
3.1 The Trustee shall invest and reinvest the principal and
income of the Trust Fund and keep the Trust Fund invested,
without distinction between principal and income, in shares of
Common Stock of The Southern Company (hereinafter referred to as
"Common Stock"), unless informed by the Committee that (a) the
Committee has directed that all dividends of cash on shares of
Common Stock held in the Trust be currently distributed to Plan
participants pursuant to Section 6.5(b) of the Plan, or (b) a
participant has elected to have dividends (or other
distributions) of cash on shares of Common Stock allocated to his
Account currently distributed to him pursuant to Section 6.5(c)
of the Plan. Such investment may be made through open market or
private purchase including purchase directly from The Southern
Company. If Common Stock shall be purchased by private purchase
from a party other than The Southern Company the price paid shall
not be greater than the last sale price or highest current
independent bid price, whichever is higher, for a share of Common
Stock determined on the basis of consolidated trading as defined
by the Consolidated Tape Association and reported as part of the
consolidated trading prices of New York Stock Exchange listed
securities, plus an amount equal to the commissions payable in a
stock exchange transaction. If such private purchase shall be a
purchase of Common Stock directly from The Southern Company, the
price paid shall be the market value of such Common Stock as
- 5 -
<PAGE>
determined under the terms of the Plan. The Trustee, subject to
the approval of the Committee, may keep such portion of the Trust
Fund in cash or cash balances as the Trustee may from time to
time deem to be in the best interest of the Trust Fund; provided,
however, any contributions to the Trust which are made in cash
shall be invested by the Trustee in Common Stock within thirty
(30) days after the date of the contribution of the cash.
- 6 -
<PAGE>
Article IV
Powers of the Trustee
4.1 The Trustee is authorized and empowered in its
discretion, but not by way of limitation:
(a) to sell, exchange, convey, transfer or otherwise
dispose of any property at any time held by it, by private
contract or at public auction, for cash or on credit, upon such
conditions, at such prices and in such manner as the Trustee
shall deem advisable, and no person dealing with the Trustee
shall be bound to see to the application of the purchase money or
to inquire into the validity, expediency or propriety of any such
sale or other disposition;
(b) to sell or exercise any conversion privileges,
subscription rights or other options and to make any payments
incidental thereto; to consent to or otherwise participate in
corporate reorganizations, mergers, consolidations or other
changes affecting corporate securities and to delegate
discretionary powers and to pay any assessments or changes in
connection therewith; and generally to exercise any of the powers
of an owner with respect to stocks, bonds, securities or other
property held in the Trust Fund;
(c) to compromise, compound, settle or arbitrate any claim,
debt or obligation due to or from it as Trustee and to reduce the
rate of interest on, extend or otherwise modify, or to foreclose
upon default or otherwise enforce any such obligation; to bid in
property on foreclosure or to take a deed in lieu of foreclosure
- 7 -
<PAGE>
with or without paying consideration therefor and in connection
therewith to release the obligation on the bond secured by the
mortgage;
(d) to collect and receive any and all money and other
property due to the Trust Fund and to give full discharge
therefor;
(e) to hold uninvested, without liability for interest
thereon any monies received by it until the same shall be
invested as provided in Section 3.1 above or disbursed pursuant
to the Plan;
(f) to exercise all voting rights with respect to any
investment, except that it will vote the Common Stock in
accordance with the provisions of Section 6.7 of the Plan; to
grant proxies, discretionary or otherwise;
(g) to enter into stand-by agreements for future
investments, either with or without a stand-by fee;
(h) to employ-suitable agents, legal counsel and other
advisers, and to pay their reasonable expenses and compensation;
(i) to hold property in the Trust Fund in its own name or
in the name of one or more of its nominees and to hold any
investment in bearer form, but the books and records of the
Trustee shall at all times show that all such investments are
part of the Trust Fund;
(j) to make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
- 8 -
<PAGE>
powers herein granted;
(k) to appoint suitable agents, including the Company, (1)
to distribute required shareholder notices and proxy information
to Plan participants, (2) to tabulate the voting of shares by
Plan participants and provide a certification of the voting
instructions received from the Plan participants, and (3) to
provide such other information as may be necessary to enable the
Trustee to vote the shares of Common Stock as directed by the
participants; and
(l) generally, to do all acts whether or not expressly
authorized, which the Trustee may deem necessary or desirable for
the protection of the Trust Fund.
- 9 -
<PAGE>
Article V
Administrative Expenses, Taxes,
and Trustee's Compensation
5.1 All brokerage costs and transfer taxes incurred in
connection with the investment and reinvestment of the Trust
Fund, transfer taxes on the transfer of Common Stock from the
Trustee to a participant or his beneficiary, all expenses
incurred in connection with the acquisition or holding of any
property and all income taxes or other taxes of any kind which
may be levied or assessed under existing law or future laws upon
or in respect of the Trust Fund shall be paid from the Trust
Fund, and, until paid, shall constitute a charge upon said Trust
Fund. All other administrative expenses incurred by the Trustee
in the performance of his duties including fees for legal
services rendered to the Trustee, such compensation to the
Trustee as may be agreed upon from time to time between the
Company and the Trustee, and evidenced by a writing signed by an
officer of the Company, and all other proper charges and
disbursements of the Trustee, shall be paid by the Company.
- 10 -
<PAGE>
Article VI
Trustee's Liability
6.1 The Trustee shall not be liable for any loss to or
diminution of the Trust Fund by reason of the purchase,
retention, sale or exchange of any investment made by it in
accordance with the provisions of this Agreement, except if due
to any failure of the Trustee to act in accordance with the
requirements of the Employee Retirement Income Security Act of
1974, as amended (hereinafter referred to as "ERISA"), as the
same may be amended from time to time. The Trustee may from time
consult with legal counsel, who may be counsel to The Southern
Company or any Employing Company with respect to any questions
arising as to the construction of this Agreement or any action to
be taken hereunder and the Trustee shall be fully protected to
the extent permitted by law, in acting upon the advice of
counsel.
- 11 -
<PAGE>
Article VII
Settlement of Trustee's Accounts
7.1 The Trustee shall keep accurate and detailed accounts
of all investments, receipts, disbursements and other
transactions hereunder, and all accounts, books and records
relating thereto shall be open to inspection and audit at all
reasonable times by any person designated by the Company or the
Committee. Within sixty (60) days after the close of each Plan
Year (or such other date as may be agreed upon in writing between
the Committee and the Trustee), and within ninety (90) days after
the effective date of the removal or resignation of the Trustee
as provided in Article III hereof, the Trustee shall file with
the Company and the Committee a written account setting forth all
investments, receipts, disbursements and other transactions
effected by it during such Plan Year or during the period from
the close of the last Plan Year to the date of such removal or
resignation, and containing an exact description of all
securities contributed, purchased, sold or distributed and the
cost or net proceeds of sale, and also showing the securities and
investments held at the end of such Plan Year or date of such
removal or resignation and the cost of each item thereof as
carried on the books of the Trustee. Upon the expiration of such
sixty (60) or ninety (90) days, as the case may be, the Trustee
shall, to the extent permitted by law, be forever released and
discharged from all liability and accountability to anyone with
respect to its acts, transactions, duties, obligations or
- 12 -
<PAGE>
responsibilities as shown in or reflected by such account, except
with respect to any such acts or transactions as to which the
Company or the Committee shall have filed written objections with
the Trustee, within such sixty-day or ninety-day period, as the
case may be. Nothing herein contained shall impair the right of
the Trustee to a judicial settlement of any account of
proceedings rendered by it. Except to the extent otherwise
provided in Sections 502 and 504 of ERISA, in any proceeding for
such judicial settlement the only necessary party shall be the
Company, and any judgment, decree or final order entered therein
shall be conclusive on all persons having or claiming an interest
in the Trust Fund or under the Plan.
7.2 The Company shall have the sole authority to enforce
this Agreement on behalf of any subsidiary or affiliate of The
Southern Company which has at any time adopted the Plan, and the
Trustee shall in no event be required to deal with any such
subsidiary or Affiliate except by dealing with the Company as
agent of such subsidiary or affiliate.
- 13 -
<PAGE>
Article VIII
Resignation and Removal of Trustee
8.1 The Trustee may resign at any time upon sixty (60) days
notice in writing to the Company and the Committee, or such
lesser or greater notice as the Company and the Trustee may
agree. The Trustee may be removed by the Company at any time
upon sixty (60) days notice in writing to the Trustee and the
Committee, or such lesser or greater notice as the Company and
the Trustee may agree. Within sixty (60) days after such notice
of such resignation or removal of the Trustee, or such other time
as agreed by the Company and Trustee, the Company shall appoint a
successor trustee.
8.2 If within the applicable time after notice or
resignation or removal of the Trustee shall have been given under
the provisions of this Article VIII a successor to the Trustee
shall not have been appointed, the resigning or removed Trustee
or the Committee or any member of the Committee may apply to any
court of competent jurisdiction for the appointment of any such
successor. Any successor trustee shall have the same powers and
duties as those conferred upon the Trustee hereunder and subject
to receipt by the Trustee of written acceptance of such
appointment by the successor trustee, the Trustee shall assign,
transfer and pay over to such successor trustee the funds and
properties then constituting the Trust Fund. The Trustee is
authorized, however, to reserve such sum of money as it may deem
advisable for payment of its fees and expenses in connection with
- 14 -
<PAGE>
the settlement of its account or otherwise and any balance of
such reserve remaining after the payment of such fees and
expenses shall be paid over to the successor trustee.
- 15 -
<PAGE>
Article IX
Evidence of Company and Committee
Action and Committee Membership
9.1 Except as otherwise herein provided, any action by the
Company pursuant to any of the provisions of this Agreement shall
be evidenced by a resolution of its Board of Directors certified,
under the corporate seal, to the Trustee over the signature of
the Secretary or of any Assistant Secretary of the Company, and
the Trustee shall be fully protected in acting in accordance with
such resolution so certified until revoked or modified by a
further action of the Board of Directors or by such authorized
designee or committee similarly certified to the Trustee.
9.2 The Company shall furnish the Trustee from time to
time with certified copies of resolutions of its Board of
Directors evidencing the appointment and termination of office of
any members of the Committee and the appointment and termination
of successors thereto. All orders, requests and instructions of
the Committee to the Trustee shall be in writing signed by two
members of the Committee or by two other persons designated by
the Committee and the Trustees shall be fully protected in acting
in accordance with such orders, requests, and instructions. The
Trustee shall have the right to rely on and shall be fully
protected in acting in accordance with any resolution, order,
request or instruction which it believes to be genuine and which
purports to have been signed in accordance with this section.
- 16 -
<PAGE>
9.3 Any agreement between the Company and any person or any
other provision of this Trust Agreement to the contrary
notwithstanding, all notices, directions and other communications
to the Trustee shall be in writing or in such other form,
including transmission by electronic means through the facilities
of third parties or otherwise, specifically agree to in writing
by the Trustee, and the Trustee shall be fully protected in
acting in accordance therewith.
9.4 The Trustee shall have the right to assume, in the
absence of written notice to the contrary, that no event
constituting a change in the membership of the Committee or
terminating the authority of any person has occurred.
9.5 The Trustee shall incur no liability under this Trust
Agreement for any failure to act pursuant to any notice,
direction or any other communication from the Company, the
Committee or any other person or the designee of any of them
unless and until it shall have received instructions in a form
satisfactory to it.
- 17 -
<PAGE>
Article X
Termination of Plan
10.1 In the event that the Plan is terminated in whole or
in part, with respect to all or any group of participants and
their beneficiaries under the Plan, the Trust Fund, or the
portion thereof with respect to which the Plan is terminated,
shall be held and/or disposed of by the Trustee in accordance
with the written instructions of the Committee. Until the final
distribution of the Trustee Fund, the Trustee, the Company and
the Committee shall continue to have and may exercise all of the
provisions and discretions conferred upon them by this Agreement.
- 18 -
<PAGE>
Article XI
Segregation of Trust Fund
11.1 The Company may at any time direct the Trustee to
segregate and set apart such portion of the Trust Fund as the
Committee shall determine to be held as a separate trust fund for
the exclusive benefit of any group of participants and their
beneficiaries under a separate agreement of trust substantially
identical with this Agreement. In such event the selection of the
particular assets so to be segregated shall be made by the
Trustee and the Trustee shall segregate such assets in accordance
with the written instructions of the Committee.
11.2 Unless otherwise directed by the Company pursuant to
Section 11.1, the Trustee shall hold, invest and administer the
Trust Fund as a single fund without identification of any part of
the Trust Fund with or allocation of any part of the Trust Fund
to the Company or to any subsidiary or affiliate of The Southern
Company designated by the Company as a participating company
under the Plan or to any participant or group of participants of
the Company or of any such subsidiary or affiliate or their
beneficiaries.
- 19 -
<PAGE>
Article XII
Amendment of Agreement
12.1 Subject to Section 13.1, the Company reserves the
right at any time and from time to time to modify, amend, or
terminate, in whole or in part, any or all of the provisions of
this Agreement provided that no such modification or amendment
which affects the rights, duties, or responsibilities of the
Trustee may be made without its consent in writing. The Trust
may also be amended or modified by the Committee (a) if such
amendment or modification does not involve a substantial increase
in cost to the Company or any subsidiary or affiliate of The
Southern Company designated by the Company as a participating
company under the Plan, or (b) as may be necessary, proper, or
desirable in order to comply with laws or regulations in acts
that are promulgated by any federal or state governmental
authority and to maintain the qualification of the Plan under
Sections 401(a), 501(a) and 4975(e)(7) of the Internal Revenue
Code of 1986, as amended, and the applicable provisions of the
ERISA, as amended.
- 20 -
<PAGE>
Article XIII
Exclusive Benefit
13.1 Anything in this Agreement to the contrary not
withstanding, at no time shall any part of the corpus or income
of the Trust Fund be used for or diverted to purposes other than
for the exclusive benefit of participants and their beneficiaries
under the Plan, provided the contributions to the Plan may be
returned to the participating companies in accordance with
Section 4.5 of the Plan.
- 21 -
<PAGE>
Article XIV
Qualification of the Plan and Trust
14.1 The establishment of the Plan and the Trust forming a
part thereof are conditioned upon a determination by the
Secretary of the Treasury that the Plan and the Trust qualify
under Sections 401(a), 501(a) and 4975(e)(7) of the Internal
Revenue Code of 1986, as amended.
- 22 -
<PAGE>
Article XV
Alienation of Benefits
15.1 No distribution or payment under this Agreement to any
participant or his beneficiary under the Plan shall be subject in
any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, whether voluntary or
involuntary, and no attempt so to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge the same shall be
valid or recognized by the Trustee, nor shall any such distribu-
tion or payment be in any way liable for or subject to the debts,
contracts, liabilities, engagements or torts of any person
entitled to such distribution or payment, except to such extent
as may be permitted or required by law. If the Trustee is
notified by the Committee that any such participant or
beneficiary has been adjudicated bankrupt or has purported to
anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge any such distribution or payment, voluntarily or
involuntarily, the Trustee shall, if so directed by the
Committee, hold or apply such distribution or payment or any part
thereof to or for the benefit of such participant or beneficiary
in such manner as the Committee shall direct.
- 23 -
<PAGE>
Article XVI
Governing Laws
16.1 To the extent that state law shall not have been
preempted by the provisions of ERISA or any other law of the
United States hereto fore or hereafter enacted, this Trust
Agreement shall be administered, construed and enforced according
to the law of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be executed by their respective officers
thereunto duly authorized and their corporate seals to be
hereunto affixed and attested as of the day and year first
written above.
SOUTHERN COMPANY SERVICES, INC.
By: /s/Bob Andrews
Attest:
By: /s/Tommy Chisholm
[CORPORATE SEAL]
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/Raymond H. Sapp
Attest:
By: /s/Gary Skutt
[CORPORATE SEAL]
- 24 -
<PAGE>
STATE OF GEORGIA
ss:
COUNTY OF FULTON
On this 31st day of March in the year of 1992, before me
personally came Bob Andrews to me known, who, being by me duly
sworn, did depose and say that he resides at 711 Dunbar Dr.,
Dunwoody GA 30338; that he is Vice President of Southern Company
Services, Inc., one of the corporations described in and which
executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name
thereto by like order.
/s/ Mary Ann Weaver
Notary
Notary Public, Gwinnett County, Georgia
My Commission Expires August 20, 1995
STATE OF GEORGIA
ss:
COUNTY OF FULTON
On this 15th day of April in the year of 1992, before me
personally came Raymond H. Sapp to me known, who, being by me
duly sworn, did depose and say that he resides at 3970 Elmscourt
Dr., Stone Mtn. GA 30083; that he is Vice President of Wachovia
Bank of Georgia, N.A., one of the corporations described in and
which executed the above instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he signed his name
thereto by like order.
/s/Shirley A. Tanksley
Notary
Notary Public, Clayton, Georgia
My Commission Expires January 15, 1996
- 25 -
<PAGE>
Exhibit F-1
TROUTMAN SANDERS
600 PEACHTREE STREET, N.E. - SUITE 5200
ATLANTA, GEORGIA 30308
404-885-3000
August 1, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re: The Southern Company, et al.
Statement on Form U-1
File No. 70-8435
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 referred to
above and are furnishing this opinion with respect to the
proposed issuance and sale by The Southern Company ("Southern")
of additional shares of its common stock, par value $5 per share,
pursuant to its Dividend Reinvestment and Stock Purchase Plan,
the Employee Savings Plan for The Southern Company System and the
Employee Stock Ownership Plan of The Southern Company System
(collectively, the "Plans"), as described in such statement on
Form U-1.
We are of the opinion that Southern is a validly organized
and duly existing corporation under the laws of the State of
Delaware and that, upon the issuance of your order or orders
herein and upon compliance with the applicable provisions of the
Securities Act of 1933 and the securities or "Blue Sky" laws of
any jurisdiction applicable thereto and in the event that the
proposed transactions by Southern are consummated in accordance
with the terms of the respective Plans and such order or orders:
(a) all State laws applicable to the proposed
transactions by Southern will have been complied with;
(b) the shares of common stock of Southern which
are proposed to be issued and sold pursuant to the
Plans will be validly issued, fully paid and
nonassessable shares of common stock of Southern and
the holders thereof will be entitled to the rights and
privileges appertaining thereto set forth in the
Certificate of Incorporation of Southern, as amended,
defining such rights and privileges; and
<PAGE>
Securities and Exchange Commission
August 1, 1994
Page 2
(c) the consummation of the proposed transactions
by Southern will not violate the legal rights of the
holders of any securities issued by Southern or any
associate company thereof.
We hereby consent to the use of this opinion in connection
with the filing of such statement on Form U-1.
Very truly yours,
/s/Troutman Sanders
<PAGE>
Exhibit F-2
BALCH & BINGHAM
1901 SIXTH AVENUE NORTH - SUITE 2600
BIRMINGHAM, AL 35203
205-251-8100
August 1, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re: The Southern Company, et al.
Statement on Form U-1
File No. 70-8435
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 referred to
above and are furnishing this opinion with respect to the
proposed purchases by Alabama Power Company ("Alabama"), Southern
Electric Generating Company ("SEGCO"), Southern Company Services,
Inc. ("SCS") and Southern Nuclear Operating Company, Inc.
("Southern Nuclear") of additional shares of The Southern
Company's common stock in order to fund the Employee Stock
Ownership Plan of The Southern Company System (the "Plan"), as
described in such statement on Form U-1.
We are of the opinion that Alabama, SEGCO and SCS are
validly organized and duly existing corporations under the laws
of the State of Alabama, that Southern Nuclear is a validly
organized and duly existing corporation under the laws of the
State of Delaware and that, upon the issuance of your order or
orders herein and upon compliance with the applicable provisions
of the Securities Act of 1933 and the securities or "Blue Sky"
laws of any jurisdiction applicable thereto and in the event that
the proposed transactions are consummated in accordance with the
terms of the Plan and such order or orders:
(a) all State laws applicable to the proposed
purchases of such common stock by Alabama, SEGCO, SCS
and Southern Nuclear will have been complied with;
(b) Alabama, SEGCO, SCS and Southern Nuclear will
legally acquire the common stock of The Southern
Company which is proposed to be purchased pursuant to
the plan; and
(c) the consummation of the proposed transactions
will not violate the legal rights of the holders of any
<PAGE>
Securities and Exchange Commission
August 1, 1994
Page 2
securities issued by Alabama, SEGCO, SCS and Southern
Nuclear or any associate company thereof.
We hereby consent to the use of this opinion in connection
with the filing of such statement on Form U-1.
Very truly yours,
/s/ Balch & Bingham
<PAGE>
Exhibit F-3
TROUTMAN SANDERS
600 PEACHTREE STREET - SUITE 5200
ATLANTA, GEORGIA 30308
404-885-3000
August 1, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re: The Southern Company, et al.
Statement on Form U-1
File No. 70-8435
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 referred to
above and are furnishing this opinion with respect to the
proposed purchases by Georgia Power Company ("GPC") and Southern
Electric International, Inc. ("SEI") of additional shares of The
Southern Company's common stock in order to fund the Employee
Stock Ownership Plan of The Southern Company System (the "Plan"),
as described in such statement on Form U-1.
We are of the opinion that GPC and SEI are validly organized
and duly existing corporations under the laws of the States of
Georgia and Delaware, respectively, and that, upon the issuance
of your order or orders herein and upon compliance with the
applicable provisions of the Securities Act of 1933 and the
securities or "Blue Sky" laws of any jurisdiction applicable
thereto and in the event that the proposed transactions by GPC
and SEI are consummated in accordance with the terms of the Plan
and such order or orders:
(a) all State laws applicable to the proposed
purchases of such common stock by GPC and SEI will have
been complied with;
(b) GPC and SEI will legally acquire the common
stock of The Southern Company which is proposed to be
purchased pursuant to the Plan; and
(c) the consummation of the proposed transactions
by GPC and SEI will not violate the legal rights of the
holders of any securities issued by GPC and SEI or any
associate company thereof.
<PAGE>
Securities and Exchange Commission
August 1, 1994
Page 2
We hereby consent to the use of this opinion in connection
with the filing of such statement on Form U-1.
Very truly yours,
/s/Troutman Sanders
<PAGE>
Exhibit F-4
BEGGS & LANE
SEVENTH FLOOR BLOUNT BUILDING
3 WEST GARDEN STREET
PENSACOLA, FL 32501
August 1, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re: The Southern Company, et al.
Statement on Form U-1
File No. 70-8435
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 referred to
above and are furnishing this opinion with respect to the
proposed purchases by Gulf Power Company ("Gulf") of additional
shares of The Southern Company's common stock in order to fund
the Employee Stock Ownership Plan of The Southern Company System
(the "Plan"), as described in such statement on Form U-1.
We are of the opinion that Gulf is a validly organized and
duly existing corporation under the laws of the State of Maine,
and that, upon the issuance of your order or orders herein and
upon compliance with the applicable provisions of the Securities
Act of 1933 and the securities or "Blue Sky" laws of any
jurisdiction applicable thereto and in the event that the
proposed transactions by Gulf are consummated in accordance with
the terms of the Plan and such order or orders:
(a) all State laws applicable to the proposed
purchases of such common stock by Gulf will have been
complied with;
(b) Gulf will legally acquire the common stock of
The Southern Company which is proposed to be purchased
pursuant to the Plan; and
(c) the consummation of the proposed transactions
by Gulf will not violate the legal rights of the
holders of any securities issued by Gulf or any
associate company thereof.
<PAGE>
Securities and Exchange Commission
August 1, 1994
Page 2
We hereby consent to the use of this opinion in connection
with the filing of such statement on Form U-1.
Very truly yours,
/s/ Beggs & Lane
<PAGE>
Exhibit F-5
EATON & COTTRELL, P.A.
1310 TWENTY FIFTH AVE.
GULFPORT, MISSISSIPPI 39501
August 1, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re: The Southern Company, et al.
Statement on Form U-1
File No. 70-8435
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 referred to
above and are furnishing this opinion with respect to the
proposed purchases by Mississippi Power Company ("Mississippi")
of additional shares of The Southern Company's common stock in
order to fund the Employee Stock Ownership Plan of The Southern
Company System (the "Plan"), as described in such statement on
Form U-1.
We are of the opinion that Mississippi is a validly
organized and duly existing corporation under the laws of the
State of Mississippi, and that, upon the issuance of your order
or orders herein and upon compliance with the applicable
provisions of the Securities Act of 1933 and the securities or
"Blue Sky" laws of any jurisdiction applicable thereto and in the
event that the proposed transactions by Mississippi are
consummated in accordance with the terms of the Plan and such
order or orders:
(a) all State laws applicable to the proposed
purchases of such common stock by Mississippi will have
been complied with;
(b) Mississippi will legally acquire the common
stock of The Southern Company which is proposed to be
purchased pursuant to the Plan; and
(c) the consummation of the proposed transactions
by Mississippi will not violate the legal rights of the
holders of any securities issued by Mississippi or any
associate company thereof.
<PAGE>
Securities and Exchange Commission
August 1, 1994
Page 2
We hereby consent to the use of this opinion in connection
with the filing of such statement on Form U-1.
Very truly yours,
/s/ Eaton and Cottrell, P.A.
<PAGE>
Exhibit F-6
BOUHAN, WILLIAMS & LEVY
BULL & GASTON STREETS
SAVANNAH, GEORGIA 31498
August 1, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re: The Southern Company, et al.
Statement on Form U-1
File No. 70-8435
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 referred to
above and are furnishing this opinion with respect to the
proposed purchases by Savannah Electric and Power Company
("Savannah") of additional shares of The Southern Company's
common stock in order to fund the Employee Stock Ownership Plan
of The Southern Company System (the "Plan"), as described in such
statement on Form U-1.
We are of the opinion that Savannah is a validly organized
and duly existing corporation under the laws of the State of
Georgia, and that, upon the issuance of your order or orders
herein and upon compliance with the applicable provisions of the
Securities Act of 1933 and the securities or "Blue Sky" laws of
any jurisdiction applicable thereto and in the event that the
proposed transactions by Savannah are consummated in accordance
with the terms of the Plan and such order or orders:
(a) all State laws applicable to the proposed
purchases of such common stock by Savannah will have
been complied with;
(b) Savannah will legally acquire the common
stock of The Southern Company which is proposed to be
purchased pursuant to the Plan; and
(c) the consummation of the proposed transactions
by Savannah will not violate the legal rights of the
holders of any securities issued by Savannah or any
associate company thereof.
<PAGE>
Securities and Exchange Commission
August 1, 1994
Page 2
We hereby consent to the use of this opinion in connection
with the filing of such statement on Form U-1.
Very truly yours,
/s/ Bouhan, Williams & Levy
<PAGE>
<TABLE>
THE SOUTHERN COMPANY
Statements of Cash Flows Exhibit G
Estimated for the Years 1994, 1995, 1996, and 1997
<S> <C> <C> <C> <C>
Year Year Year Year
1994 1995 1996 1997
(Millions of Dollars
OPERATING ACTIVITIES:
Dividends to Southern from Subsidiaries $790 $817 $816 $823
Other Retained Earnings, Working Capital Changes, 11 22 (8) (16)
Net Cash Provided from Operating Activities 801 839 808 807
INVESTING ACTIVITIES:
Proposed Capital Contributions to Subsidiaries (1) (350) (300) (100) (150)
FINANCING ACTIVITIES:
Sales of Common Stock (1) 407 275 100 150
Change in Interim Obligations (1) (190) (24) (8) 0
Payment of Common Stock Dividends (770) (790) (800) (807)
Net Cash Used for Financing Activities (553) (539) (708) (657)
Net Change in Cash & Temporary Cash Investments (102) 0 0 0
Cash & Temporary Cash Investments
at Beginning of Period 102 0 0 0
Cash & Temporary Cash Investments
at End of Period 0 0 0 0
(1) The amount and mix of debt and equity capital required each year will be contingent
upon investment opportunities.
(2) Capital contributions to operating company subsidiaries will be the subject of
subsequent application on Form U-1. Investments in other subsidiaries are the subject
of Form U-1 File Nos. 70-7932, 70-8147, 70-8173, 70-8203, 70-8233 and 70-8421.
</TABLE>
THE SOUTHERN COMPANY
STATEMENT OF INCOME
FOR THE TWELVE MONTHS ENDED MARCH 31, 1994 (Unaudited)
(Thousands of Dollars)
INCOME:
Equity in earnings of subsidiary
companies (Dividends from
subsidiaries -- $758,600) $983,971
Other income 4,782
Total Income 988,753
EXPENSES AND TAXES:
General expenses 19,546
General taxes 159
Income taxes (1,700)
Interest expense 4,301
Total expenses and taxes 22,306
NET INCOME $966,447
- 1 -
<PAGE>
THE SOUTHERN COMPANY
BALANCE SHEET
MARCH 31, 1994 (Unaudited)
(Thousands of Dollars)
ASSETS
INVESTMENTS:
Investments in common equity of
subsidiaries, stated at equity -
Alabama Power Company $2,531,776
Georgia Power Company 3,996,368
Gulf Power Company 413,367
Mississippi Power Company 321,534
Savannah Electric and Power Company 154,009
SEI Holdings, Inc. 184,601
SEI Holdings III 63,107
SEI Holdings IV (10)
SEI Holdings V 1
SEI Holdings VI 18
Southern Company Services, Inc. 781
Southern Electric Bahamas Holdings, Ltd. 34,936
Southern Electric International, Inc. 2,582
Southern Electric Railroad Company 5
Southern Electric Wholesale Generators, Inc. (303)
Southern Enterprises (341)
Southern Nuclear Operating Company, Inc. 1,532
The Southern Development and Investment Group, Inc. 2,549
Eliminations (15,752)
Total 7,690,760
Other investments, at cost 8,724
Total 7,699,484
CURRENT ASSETS:
Cash 179
Temporary cash investments, at cost which
approximates market 76,428
Accounts receivable--
Affiliated companies 79,102
Other 1,486
Prepayments 2,381
Total 159,576
DEFERRED CHARGES 1,311
TOTAL ASSETS $7,860,371
- 2 -
<PAGE>
THE SOUTHERN COMPANY
BALANCE SHEET
MARCH 31, 1994 (Unaudited)
(Thousands of Dollars)
CAPITALIZATION
AND
LIABILITIES
CAPITALIZATION:
Common stock equity--
Common stock (par value $ 5 per
share - authorized 1 billion shares,
outstanding 648,346,540 shares $3,241,733
Amount paid in for capital stock in excess
of par value 1,596,403
Earnings retained in the business 2,917,664
Total common stock equity 7,755,800
Long-term debt 1,910
7,757,710
CURRENT LIABILITIES:
Notes payable 86,200
Accounts payable--
Affiliated companies 1,896
Other 4,765
Accrued general taxes 17
Interest accrued 96
Miscellaneous 9,687
Total 102,661
TOTAL CAPITALIZATION AND LIABILITIES $7,860,371
- 3 -
<PAGE>
