File No. 70-8563
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No.1
to
FORM U-1
APPLICATION OR DECLARATION
under
The Public Utility Holding Company Act of 1935
THE SOUTHERN COMPANY
64 Perimeter Center East
Atlanta, Georgia 30346
THE SOUTHERN DEVELOPMENT AND INVESTMENT GROUP, INC.
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
(Name and address of agent 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 600 Peachtree Street, N.E.
64 Perimeter Center East Suite 5200
Atlanta, Georgia 30346 Atlanta, Georgia 30308-2216
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INFORMATION REQUIRED
The Application or Declaration heretofore filed in the
above-referenced proceeding is hereby amended, as follows:
1. By adding the following paragraph to Item 1.4 - Other
Matters:
The Partnership intends to rely upon an exemption from
the definition of an "investment company" under Section
3(c)(1) of the Investment Company Act of 1940. Accordingly,
the Partnership will limit the number of beneficial owners
of Partnership interests to 100 or less. To this end, the
Partnership and its counsel will rely upon certain factual
representations of the Limited Partners contained in the
Subscription Agreement (Exhibit B hereto) regarding their
status for purposes of Section 3(c)(1). (see paragraph 6,
Subscription Agreement).
2. By adding the following additional paragraphs to Item 3 -
Applicable Statutory Provisions:
Sections 6 and 7 of the Act are applicable to the
issuance of any promissory note by Development under
circumstances in which Development (as a "Non-Conflicted
Partner") elects to exercise its right under Section
4.1(a)(iv) of the Partnership Agreement to purchase its
proportionate share of any other Limited Partner's interest
in a Partnership investment which, as to such other Limited
Partner, would constitute a "Conflicting Interest."
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The proposed transaction is also subject to Rule 54.
Under Rule 54, in determining whether to approve the issue
or sale of a security by a registered holding company for
purposes other than the acquisition of an "exempt wholesale
generator" or "foreign utility company," or other
transactions by such registered holding company or its
subsidiaries other than with respect to "exempt wholesale
generators" or "foreign utility companies," the Commission
shall not consider the effect of the capitalization or
earnings of any subsidiary which is an "exempt wholesale
generator" or a "foreign utility company" upon the
registered holding company system if Rules 53(a), (b) and
(c) are satisfied. In that regard, assuming consummation of
the transaction proposed in this application, all of the
conditions set forth in Rule 53(a) are and will be satisfied
and none of the conditions set forth in Rule 53(b) exists
or, as a result thereof, will exist.
Rule 53(a)(1): Assuming full utilization of $500 million of
proceeds of the sale of Common Stock (as authorized in HCAR
Nos. 25980 and 26098) and/or the use of up to $500 million
of the proceeds of short-term borrowings and/or commercial
paper sales (as authorized in HCAR No. 26004), to make
investments in "exempt wholesale generators" and "foreign
utility companies," or the guaranty by Southern of up to
$500 million of securities of any "exempt wholesale
generators" or "foreign utility companies" (as authorized
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by HCAR No. 25980), the combination of which may not exceed
$500 million, Southern's "aggregate investment" in such
entities would be approximately 26.9% of "consolidated
retained earnings," as defined in Rule 53(a)(1)(ii), of
Southern, determined as follows: At September 30, 1994,
Southern had invested, directly or indirectly, an aggregate
of $409.5 million in "exempt wholesale generators" and
"foreign utility companies," 1 and had utilized for this
purpose approximately $97.7 million of the authorized
proceeds of common stock, debt and/or guarantees. The
average of the consolidated retained earnings of Southern
reported on Form 10-K or Form 10-Q, as applicable, for the
four consecutive quarters ended September 30, 1994, is
$3.019 billion. Southern's "aggregate investment," on a pro
forma basis, expressed as a percentage of "consolidated
retained earnings," is approximately 26.9% ($409.5 million +
$402.3 million divided by $3.019 billion).
Rule 53(a)(2): Southern maintains books and records
enabling it to identify investments in and earnings from
each "exempt wholesale generator" and "foreign utility
company" in which it directly or indirectly holds an
interest. In addition, each domestic "exempt wholesale
1 These investments were in companies or partnerships that
are "exempt wholesale generators," as defined in Section 32,
operating or constructing facilities in Hawaii and Virginia, and
in "foreign utility companies," as defined in Section 33,
operating in The Grand Bahamas, Chile and Argentina.
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generator" in which Southern holds an interest maintains its
books and records and prepares its financial statements in
conformity with U.S. generally accepted accounting
principles ("GAAP"). The books and records and financial
statements of each "foreign utility company" in which
Southern holds an interest (including those that are
"majority-owned subsidiaries" and those that are not) are
maintained and prepared in conformity with GAAP. All of
such books and records and financial statements will be made
available to the Commission, in English, upon request.
Rule 53(a)(3): No more than 2% of the employees of
Southern's operating utility subsidiaries will, at any one
time, directly or indirectly, render services to "exempt
wholesale generators" and "foreign utility companies."
Based on current staffing levels of Southern's domestic
operating utility subsidiaries (such companies currently
employ, in the aggregate, approximately 27,000 salaried and
hourly employees), no more than 540 employees of these
companies, in the aggregate, determined on a full-time-
equivalent basis, will be utilized at any one time in
rendering services directly or indirectly to "exempt
wholesale generators" and "foreign utility companies." By
order dated December 30, 1994 (HCAR No. 26212), certain of
Southern's subsidiaries have been authorized to render
services to "exempt wholesale generators" and "foreign
utility companies," as required by Rule 53(a).
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Rule 53(a)(4): Southern is simultaneously submitting a copy
of this Application or Declaration, and will submit copies
of any Rule 24 certificates required hereunder, as well as a
copy of Southern's Form U5S, to the Federal Energy
Regulatory Commission and to the appropriate public service
commission(s) having jurisdiction over the retail rates of
Southern's operating utility subsidiaries.
In addition, Southern states that the provisions of Rule
53(a) are not made inapplicable to the authorization herein
requested by reason of the provisions of Rule 53(b).
Rule 53(b)(1): Neither Southern nor any subsidiary of
Southern is the subject of any pending bankruptcy or similar
proceeding.
Rule 53(b)(2): Southern's average consolidated retained
earnings for the four most recent quarterly periods ($3.019
billion) represented an increase of approximately $44
million in the average consolidated retained earnings for
the previous four quarterly periods ($2.975 billion).
Rule 53(b)(3): In the previous fiscal year, Southern did
not report any operating losses attributable to its direct
or indirect investments in "exempt wholesale generators" and
"foreign utility companies."
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3. By including the following Exhibits as a part of Item 6 -
Exhibits and Financial Statements:
(a) Exhibits.
B EnviroTech Investment Fund I Limited Partnership-
Subscription Agreement.
F - Opinion of Counsel.
(b) Financial Statements.
Financial Statements are omitted since they are not deemed
necessary for a proper disposition of the proposed transactions
by the Commission.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
Amendment No. 1 to be signed on its behalf by the undersigned
thereunto duly authorized.
Dated: February 23, 1995
THE SOUTHERN COMPANY
By: /s/Tommy Chisholm
Tommy Chisholm, Secretary
THE SOUTHERN DEVELOPMENT AND INVESTMENT
GROUP, INC.
By: /s/Tommy Chisholm
Tommy Chisholm, Vice President and
Secretary
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Exhibit B
ENVIROTECH INVESTMENT FUND I LIMITED PARTNERSHIP
SUBSCRIPTION AGREEMENT
Name of Subscriber: _______________________________________
Address of Subscriber: _______________________________________
_______________________________________
_______________________________________
Taxpayer Identification Number: ______________
Total Amount of Capital Commitment: US$___________
Amount of Initial Capital Contribution
(10% of total amount of Capital Commitment): US$___________
Country of Residence/State of Incorporation: __________________
Distributions by the Partnership are to be paid
in the following form if possible (check one):
( ) WIRE TRANSFER
ABA No. _____________________
Account Name___________________
_______________________________
Account No. ___________________
( ) CHECK
Send to: _____________________
_______________________________
_______________________________
TO: ADVENT INTERNATIONAL LIMITED PARTNERSHIP,
as General Partner of ENVIROTECH INVESTMENT FUND I
LIMITED PARTNERSHIP, a Limited Partnership formed
under the Laws of the State of Delaware (the "Partnership")
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The undersigned hereby agrees with you and the Partnership
as follows (any capitalized term not otherwise defined herein
shall have the meaning set forth in the Limited Partnership
Agreement of the Partnership (the "Partnership Agreement")):
1. The undersigned hereby subscribes for a total
commitment to the capital of the Partnership in the amount
specified above (the "Capital Commitment"), in accordance with
and subject to the terms, provisions and conditions set forth
herein and in the Partnership Agreement.
2. The undersigned will pay to the Partnership on the
closing date established by you (the "Closing Date"), cash in the
amount of its initial Capital Contribution as specified above
(ten percent (10%) of its Capital Commitment), by wire transfer
or other valid payment pursuant to instructions from you. The
undersigned will pay the remainder of its Capital Commitment at
the times and in the manner set forth in the Partnership
Agreement.
3. The undersigned understands that you will notify him or
it whether this Subscription Agreement has been accepted or
rejected by the Closing Date, or, if this Subscription Agreement
is received by you subsequent to the Closing Date, within thirty
(30) days after receipt. Acceptance of this Subscription
Agreement shall be by return of one original copy of this
Subscription Agreement, acknowledged by you. The undersigned
further understands that you reserve the right to accept or
reject subscriptions and that this Subscription Agreement may be
rejected for any reason whatsoever by you, as you shall deem
necessary.
4. The undersigned acknowledges, warrants, represents and
agrees as follows:
(a) The undersigned has reviewed and understands the
risks of, and other considerations relating to, the Capital
Commitment. The undersigned has such knowledge and
experience in financial and business matters that he or it
is capable of evaluating the merits and risks of an
investment in the Partnership and of making an informed
investment decision.
(b) The undersigned has been granted the opportunity
to make a thorough investigation of the proposed activities
of the Partnership, has been furnished with all materials
relating to the Partnership and its proposed activities that
he or it has requested, and has been afforded the
opportunity to obtain any additional information necessary
to verify the accuracy of any representations made or
information conveyed to him or it.
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(c) The Capital Commitment is being subscribed to for
the undersigned's own account for investment only and not
with a view to, or with any intention of, a distribution or
resale thereof, in whole or in part, or the grant of any
participation therein.
(d) The undersigned is an "accredited investor" as
such term is defined in Rule 501(a) of Regulation D under
the Securities Act of 1933 and the net worth of the
undersigned exceeds $1,000,000.
5. The undersigned, if a corporation, partnership, trust
or other form of entity, agrees, warrants and represents that (i)
it is authorized and otherwise duly qualified to subscribe for
the Capital Commitment and to execute this Subscription Agreement
and the Partnership Agreement; (ii) this Subscription Agreement
and the Partnership Agreement constitute valid, binding and
enforceable obligations of the undersigned; (iii) the person
executing this Subscription Agreement and the Partnership
Agreement on behalf of the undersigned is authorized to act for
the undersigned in subscribing for the Capital Commitment; and
(iv) the undersigned has its principal place of business as set
forth on the signature page hereof. In addition, if the
undersigned is a corporation, (x) the undersigned has been duly
incorporated and is validly existing under the laws of its state
of incorporation indicated above with full corporate power and
authority to execute this Subscription Agreement and to enter
into the transactions contemplated by the Partnership Agreement;
and (y) this Subscription Agreement and the Partnership Agreement
have been duly executed and delivered by the undersigned. If the
undersigned is one of the aforementioned entities, it hereby
agrees to supply any additional written information concerning
the representations in this Subscription Agreement that you may
reasonably require.
6. The undersigned, if a corporation, partnership, trust
or other entity, was not formed for the specific purpose of
acquiring its interest in the Partnership and is the beneficial
owner of its interest in the Partnership within the meaning of
Section 3(c)(1) of the Investment Company Act of 1940. If the
undersigned's investment in the Partnership will constitute 10%
or more of the total Capital Commitments made by all Partners in
the Partnership, the undersigned's other investments and total
assets are such that it, and not the holders of its outstanding
securities, will be deemed to be the beneficial owner of its
interest in the Partnership for purposes of Section 3(c)(1) of
the Investment Company Act of 1940.
7. The undersigned elects to be paid all distributions and
other amounts payable to the undersigned by the Partnership in
the form (either by wire transfer or check) indicated on the
first page of this Subscription Agreement. If no election is
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made by the undersigned, all distributions will be paid in the
form of a check. The Partnership is authorized to pay such
distributions in the form elected in this Subscription Agreement
until five (5) business days after it has received from the
undersigned, in writing, new payment instructions. Neither the
Partnership nor the General Partner will have any liability for
any distribution or payment paid in the manner and to the account
or address elected by the undersigned on the first page of this
Agreement or as subsequently elected in writing by the
undersigned.
8. Neither this Subscription Agreement nor the rights
accruing pursuant to this Subscription Agreement shall be
transferable without your prior written consent.
9. This Subscription Agreement shall be binding upon the
heirs, executors, administrators, successors and assigns of the
undersigned, subject to the requirements of Section 8 hereof,
and, when accepted by you, shall be binding upon your successors
and assigns.
10. Unless otherwise provided for, the undersigned is
delivering herewith THREE executed copies of this Subscription
Agreement that have been signed, dated and completed in
accordance with the instructions hereon.
11. All of the agreements, representations and warranties
made by the undersigned in this Subscription Agreement shall
survive the execution of the Partnership Agreement.
12. This Subscription Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement this ________ day of ______________, 1995.
__________________________________
Name(s)
By: _____________________________
Hereunto duly authorized
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ACKNOWLEDGMENT
The foregoing Subscription Agreement is hereby accepted upon
the terms and condition set forth above and in the Partnership
Agreement.
ADVENT INTERNATIONAL LIMITED
PARTNERSHIP, as General Partner of
ENVIROTECH INVESTMENT FUND I LIMITED
PARTNERSHIP
By: Advent International Corporation,
general partner
By:_______________________________
Title:
Dated:____________________________
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Exhibit F
TROUTMAN SANDERS
Atlanta, Georgia
404-885-3000
February 23, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Re: The Southern Company; The Southern Development and
Investment Group, Inc. - Form U-1 Application or
Declaration (File No. 70-8563)
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 referred to
above, as amended, and are furnishing this opinion with respect
to the transactions described therein, pursuant to which The
Southern Development and Investment Group, Inc. ("Development")
proposes to invest an aggregate of up to $5 million from time to
time through December 31, 2002, to acquire a limited partnership
interest in EnviroTech Investment Fund I Limited Partnership (the
"Partnership"), and The Southern Company ("Southern") proposes to
make cash capital contributions to Development in an aggregate
amount not to exceed $5 million as and when required under the
terms of the limited partnership agreement ("Partnership
Agreement") to fund Development's capital commitment.
We are of the opinion that each of Development and Southern
is a validly organized and duly existing corporation under the
laws of the state in which it is organized, and that, upon the
issuance of your order herein, and in the event that the proposed
transactions are consummated in accordance with such statement on
Form U-1 and your order:
(a) all state laws applicable to the proposed
transactions will have been complied with;
(b) assuming that the Partnership Agreement in the
form thereof included as Exhibit A to the statement on Form
U-1 is duly authorized, executed and delivered; that the
Partnership is duly formed; and that the Partnership
interests are legally issued in compliance with all
applicable requirements of law and the governing instruments
of the Partnership, then Development will be entitled to all
of the rights and privileges of a limited partner under the
Partnership Agreement;
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Securities and Exchange Commission
December 23, 1994
Page 2
(c) the consummation of the transactions described
above will not violate the legal rights of the holders of
any securities issued by Development 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
Troutman Sanders
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