File No. 70-8595
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
to
FORM U-1
APPLICATION OR DECLARATION
under
The Public Utility Holding Company Act of 1935
THE SOUTHERN COMPANY
64 Perimeter Center East
Atlanta, Georgia 30346
(Name of company or companies filing this statement
and addresses of principal executive offices)
THE SOUTHERN COMPANY
(Name of top registered holding company parent of each
applicant or declarant)
Tommy Chisholm, Secretary
The Southern Company
64 Perimeter Center East
Atlanta, Georgia 30346
(Names and addresses of agents for service)
The Commission is requested to mail signed copies of all orders, notices and
communications to:
W. L. Westbrook John D. McLanahan, Esq.
Financial Vice President Troutman Sanders
The Southern Company 5200 NationsBank Plaza
64 Perimeter Center East 600 Peachtree Street, N.E.
Atlanta, Georgia 30346 Atlanta, Georgia 30308-2216
<PAGE>
INFORMATION REQUIRED
Item 1. Description of Proposed Transactions.
The last sentence of the seventh paragraph of Item 1 is hereby amended to read
as follows:
"For purposes of valuing such Common Stock, the term "market Value" shall
mean (i) with respect to Common Stock that is issued by Southern, the average of
the high and low prices of the Common Stock, as published in the Wall Street
Journal in its report of New York Stock Exchange composite transactions, on the
date such market value is to be determined (or the average of the high and low
sale prices on the trading day immediately preceding such date if the Common
Stock is not traded on the applicable valuation date) or (ii) with respect to
Common Stock that is purchased on the open market, the actual purchase price
paid for such stock on the date of purchase."
Item 6. Exhibits and Financial Statements.
(a) Exhibits
A-1 - The Outside Directors Stock Plan for Subsidiaries of The
Southern Company.
F - Opinion of Troutman Sanders.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned company has duly caused this amendment to be signed on
its behalf by the undersigned thereunto duly authorized.
Dated: June 15, 1995 THE SOUTHERN COMPANY
By: /s/ Tommy Chisholm
Tommy Chisholm
Secretary
Exhibit A-1
OUTSIDE DIRECTORS STOCK PLAN
FOR SUBSIDIARIES OF THE SOUTHERN COMPANY
Effective January 1, 1995
<PAGE>
OUTSIDE DIRECTORS STOCK PLAN
FOR SUBSIDIARIES OF THE SOUTHERN COMPANY
ARTICLE I - PURPOSE AND ADOPTION OF PLAN
1.1 Adoption. Subject to (a) the approval of the adoption by the Board
of Directors of The Southern Company ("Company") of the Outside Directors Stock
Plan for Subsidiaries of The Southern Company (the "Plan") by the shareholders
of the Company at the annual meeting thereof to be held on May 24, 1995, and (b)
the Company's receipt of the requisite approval of the issuance of the Stock
pursuant to the Plan by the Securities and Exchange Commission (the
"Commission") under the Public Utility Holding Company Act of 1935, as amended,
and the rules thereunder, The Southern Company hereby adopts the Outside
Directors Stock Plan for Subsidiaries of The Southern Company, effective January
1, 1995.
1.2 Purpose. The Plan is designed to more closely align the interests
of Directors of the System Companies (defined herein) with the interests of the
shareholders of the Company through ownership of the Company's common stock, par
value $5.00 per share (the "Stock").
<PAGE>
ARTICLE II - DEFINITIONS
2.1 "Affiliated Employer" shall mean any corporation which is a member of
the controlled group of corporations of which The Southern Company is the common
parent corporation.
2.2 "Board of Directors" shall mean the Board of Directors of each System
Company.
2.3 "Commission" shall mean the Securities and Exchange Commission.
2.4 "Company" shall mean The Southern Company.
2.5 "Director" shall mean any person (a) who serves on the Board of
Directors of one or more System Companies on or after January 1, 1995; and (b)
who is not an active employee of The Southern Company or an Affiliated Employer.
2.6 "Effective Date" shall mean January 1, 1995.
2.7 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
2.8 "Market Value" shall mean the average of the high and low prices of the
Stock, as published in the Wall Street Journal in its report of New York Stock
Exchange composite transactions, on the date such market value is to be
determined (or the average of the high and low sale prices on the trading day
immediately preceding such determination date if the Stock is not traded on the
applicable valuation date).
2.9 "Participant" shall mean each Director on the Board of Directors of a
System Company who meets the requirements of Section 3.1 of the Plan.
<PAGE>
2.10 "Plan" shall mean the Outside Directors Stock Plan for
Subsidiaries of The Southern Company, as amended from time to time.
2.11 "Plan Administrator" shall mean the Compensation Committee of the
Board of Directors of The Southern Company.
2.12 "Plan Year" shall mean the calendar year.
2.13 "Retainer Fee" shall mean the annual rate of the fees paid to a
Director for service on the Board of Directors of a System Company, but
excluding reimbursements for expenses and any fees or compensation for (a)
attendance at the meetings of the Board of Directors or any committee, (b)
service on a committee, and (c) service at the request of the Board of Directors
or a committee.
2.14 "Stock" shall mean the Company's common stock, par value $5.00
per share.
2.15 "System Company" shall mean any affiliate or subsidiary of The
Southern Company which the Board of Directors of The Southern Company may from
time to time determine to bring under the Plan and which shall adopt the Plan,
and any successor of any of them. The System Companies that have adopted the
Plan are listed in Schedule A, attached hereto, as such Schedule may be amended
from time to time.
The masculine pronoun shall be construed to include the feminine
pronoun and the singular shall include the plural, where the context so
requires.
<PAGE>
ARTICLE III - ELIGIBILITY
3.1 Eligibility Requirements.
(a) Except as provided in Subsections (b) and (c) below, each Director
who serves on a Board of Directors of a System Company shall become a
Participant in the Plan on the first date such Director serves on the Board of
Directors of a System Company.
(b) For purposes of the initial Plan Year, a Director who serves on the
Board of Directors of Georgia Power Company or Alabama Power Company shall
become a Participant in the Plan on the Effective Date, subject to (1) approval
of the Plan by the shareholders of the Company at the annual meeting thereof to
be held on May 24, 1995, and (2) the Company's receipt of the requisite approval
of the Plan by the Commission under the Public Utility Holding Company Act of
1935, as amended, and the rules thereunder.
(c) For purposes of the initial Plan Year, a Director who serves on the
Board of Directors of Gulf Power Company, Mississippi Power Company or Savannah
Electric and Power Company shall become a Participant in the Plan on the later
of (1) the date the Plan is approved by the shareholders of the Company at the
annual meeting thereof to be held on May 24, 1995, and (2) the Company's receipt
of the requisite approval of the Plan by the Commission under the Public Utility
Holding Company Act of 1935, as amended, and the rules thereunder.
<PAGE>
ARTICLE IV - FORM AND TIME OF BENEFIT DISTRIBUTIONS
4.1 Stock Grant. Each Participant shall receive a portion of his annual
Retainer Fee in Stock, with the remainder of such annual Retainer Fee to be
payable, in increments elected by the Director in accordance with Section 4.2
below, in cash or in Stock. The portion of the annual Retainer Fee required to
be paid in Stock pursuant to this Section 4.1 shall be stated in Schedule B,
attached hereto, as such Schedule shall be amended from time to time.
4.2 Election to Determine Percentage or Amount of Compensation to be
Paid in Stock. Each Participant shall have a one-time opportunity to elect to
have the remaining portion of his Retainer Fee paid in cash or Stock of the
Company, or a combination thereof. Such election shall be made at the time
specified by the Plan Administrator on a form provided to the Participant by the
Plan Administrator, which form shall acknowledge that once made, such election
is irrevocable. Notwithstanding the foregoing, if, when and as permitted by the
Commission, the Plan Administrator may allow a Participant to elect to change
the amount of their Retainer Fee paid in Stock; provided that such election
shall not affect the dollar amount of such Participant's required Stock
distribution stated in Schedule B attached hereto. Nothing contained in this
Section 4.2 shall be interpreted in such a manner as would disqualify the Plan
from treatment as a "formula plan" under Rule 16b-3, as promulgated by the
Commission under the Exchange Act, as that rule may be amended from time to
time.
4.3 Amount and Date of Payment for Stock Compensation.
(a) For any Plan Year in which a Director is a Participant for the full
Plan Year, any Stock compensation due a Participant pursuant to Sections 4.1 and
4.2 above shall be payable on a quarterly basis, with the first such quarterly
<PAGE>
distribution being made on April 1 and succeeding quarterly distributions being
made on July 1, October 1, and January 1. The amount of Stock to be distributed
to a Participant shall initially be determined by first dividing the
Participant's required and elected dollar amount of Stock compensation by four
(4) and then dividing such quarterly quotient by the market value of the Stock
on the date one day prior to the date of distribution, with subsequent
distributions based on such quarterly quotient divided by the market value of
the Stock on the date one day prior to the date of each subsequent distribution.
(b) Notwithstanding the foregoing, for purposes of the 1995 Plan Year,
Stock distributions shall be made as follows:
(1) For Participants who are Directors of Alabama Power Company
or Georgia Power Company on January 1, 1995, no Stock distributions shall be
made prior to receipt of the requisite approval described in Section 1.1;
provided, however, that once the requisite approval of the Plan is received, the
Stock distribution shall be made on the first quarterly date following such
approval and shall include any Stock distributions which would have been made
had the requisite approval been obtained on the Effective Date. The Stock
distributions to be made in accordance with this Section 4.3(b)(1) shall be
valued in accordance with the provisions of Section 4.3(a).
(2) For Participants who are Directors of Gulf Power Company,
Mississippi Power Company or Savannah Electric and Power Company, no Stock
distributions shall be made prior to receipt of the requisite approval described
in Section 1.1; provided, however, that once the requisite approval of the Plan
is received, the Stock distribution to be made to Participants pursuant to this
Section 4.3(b)(2) shall be made on the first quarterly date following such
approval. The Stock distributions to be made pursuant to this Section 4.3(b)(2)
shall not include any Stock distributions attributable to any calendar quarter
prior to the time the requisite approval is received. The Stock distributions to
be paid in accordance with this Section 4.3(b)(2) shall be valued in accordance
with the provisions of Section 4.3(a).
4.4 Death Benefits. No benefits shall be payable under the Plan to any
beneficiary of a Participant following a Participant's death.
<PAGE>
ARTICLE V - ADMINISTRATION OF PLAN
5.1 Administrator. The general administration of the Plan shall be the
responsibility of the Compensation Committee of the Board of Directors of The
Southern Company, as Plan Administrator.
5.2 Powers. The Plan Administrator shall administer the Plan in
accordance with its terms and shall have all powers necessary to carry out the
provisions of the Plan more particularly set forth herein. It shall interpret
the Plan and shall have the discretion to determine all questions arising in the
administration, interpretation and application of the Plan, including any
ambiguities contained herein or any questions of fact. Any such determination by
it shall be conclusive and binding on all persons. It may adopt such regulations
as it deems desirable for the conduct of its affairs. It may appoint such
accountants, counsel, actuaries, specialists and other persons as it deems
necessary or desirable in connection with the administration of this Plan, and
shall be the agent for the service of process.
5.3 Duties of the Plan Administrator.
(a) The Plan Administrator is responsible for the daily administration
of the Plan. It may appoint other persons or entities to perform any of its
fiduciary functions. The Plan Administrator and any such appointee may employ
advisors and other persons necessary or convenient to help it carry out its
duties, including its fiduciary duties. The Plan Administrator shall have the
right to remove any such appointee from his position. Any person, group of
persons or entity may serve in more than one fiduciary capacity.
(b) The Plan Administrator shall maintain accurate and detailed records
and accounts of Participants and of their rights under the Plan and of all
receipts, disbursements, transfers and other transactions concerning the Plan.
Such accounts, books and records relating thereto shall be open at all
reasonable times to inspection and audit by persons designated by the Board of
Directors of each System Company.
(c) The Plan Administrator shall take all steps necessary to ensure
that the Plan complies with the law at all times. These steps shall include such
items as the preparation and filing of all documents and forms required by any
governmental agency; maintaining of adequate Participants' records; recording
and transmission of all notices required to be given to Participants; the
receipt and dissemination, if required, of all reports and information received
from a System Company; securing of such fidelity bonds as may be required by
law; and doing such other acts necessary for the proper administration of the
Plan. The Plan Administrator shall keep a record of all of its proceedings and
acts, and shall keep all such books of account, records and other data as may be
necessary for proper administration of the Plan.
5.4 Indemnification. The System Companies shall indemnify the Plan
Administrator against any and all claims, losses, damages, expenses and
liability arising from any action or failure to act, except when the same is
finally judicially determined to be due to gross negligence or willful
misconduct. The System Companies may purchase at their own expense sufficient
liability insurance for the Plan Administrator to cover any and all claims,
losses, damages and expenses arising from any action or failure to act in
connection with the execution of the duties as Plan Administrator.
<PAGE>
ARTICLE VI - MISCELLANEOUS
6.1 Assignment. Neither the Participant nor his legal representative
shall have any rights to sell, assign, transfer or otherwise convey the right to
receive the payment of any benefit due hereunder, which payment and the right
thereto are expressly declared to be nonassignable and nontransferable. Any
attempt to assign or transfer the right to payment under the Plan shall be null
and void and of no effect.
6.2 Amendment and Termination. The Plan may be wholly or partially
amended or otherwise modified, suspended or terminated at any time by the Board
of Directors of The Southern Company or by the Compensation Committee with the
approval of The Southern Company Board of Directors, upon execution of a duly
authorized written document; provided, however, that, without the approval of
the shareholders of the Company entitled to vote thereon, no amendment may be
made which would, absent such shareholder approval, disqualify the Plan for
coverage under Rule 16b-3, as promulgated by the Commission under the Exchange
Act, as that rule may be amended from time to time; and provided further that
the Plan may not be amended more than once every six (6) months unless such
amendment is made in order to comply with changes to either the Internal Revenue
Code of 1986, as amended, or the Employee Retirement Income Security Act of
1974, as amended, and the rules thereunder. Notwithstanding the foregoing, no
such amendment or termination shall impair any rights to payments to which a
Participant may be entitled prior to the effective date of such amendment or
termination.
6.3 No Guarantee of Continued or Future Service on a Board of Director.
Participation hereunder shall not be construed as creating a right in any
Director to continued service or future service on the Board of Directors of any
System Company. Participation hereunder does not constitute an employment
contract between any Director and any System Company.
6.4 Construction. This Plan shall be construed in accordance with and
governed by the laws of the State of Georgia, to the extent such laws are not
otherwise superseded by the laws of the United States.
IN WITNESS WHEREOF, the Board of Directors of The Southern Company,
through its duly authorized officers, has adopted this Outside Directors Stock
Plan for Subsidiaries of The Southern Company this day of , 1994, to be
effective as provided herein.
THE SOUTHERN COMPANY:
(CORPORATE SEAL)
By:______________________________
Its:
Attest:
By: ________________________
Its:
<PAGE>
OUTSIDE DIRECTORS STOCK PLAN
FOR SUBSIDIARIES OF THE SOUTHERN COMPANY
SCHEDULE A
The System Companies as of January 1, 1995 are:
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric and Power Company
<PAGE>
OUTSIDE DIRECTORS STOCK PLAN
FOR SUBSIDIARIES OF THE SOUTHERN COMPANY
SCHEDULE B
As of January 1, 1995
The portion of a Participant's Retainer Fee required to be distributed in
common stock of The Southern Company shall be determined in accordance with the
following schedule:
Dollar Amount
Company of Required Stock Distribution
Alabama Power Company $3000.00
Georgia Power Company $3000.00
Gulf Power Company $2000.00
Mississippi Power Company $2000.00
Savannah Electric and Power $2000.00
Company
<PAGE>
Exhibit F
June 15, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Re: Statement on Form U-1 of
The Southern Company (the "Company")
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 referred to above relating
to (i) The Outside Directors Stock Plan for Subsidiaries of The Southern Company
(the "Plan") and (ii) the solicitation of proxies from the Company's
stockholders in connection with the Plan, and we are familiar with the
proceedings relating thereto.
We are of the opinion that the Company 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 permitting such statement on Form U-1 to become
effective, and upon the proposed transactions being consummated in accordance
with such statement on Form U-1 and such order or orders and in accordance with
the Plan:
(a) all State laws applicable to the proposed transactions will have
been complied with;
(b) the common stock, par value $5.00 per share, of the Company
proposed to be issued pursuant to the Plan will be validly issued, fully paid
and nonassessable and the holders of such common stock will be entitled to the
rights and privileges appertaining thereto set forth in the Certificate of
Incorporation of the Company, as amended; and
(c) the consummation of the proposed transactions will not violate
the legal rights of the holders of any securities issued by the Company or any
associate company thereof.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned statement on Form U-1.
Very truly yours,
Troutman Sanders
<PAGE>
