<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
----------------
FORM U5S
ANNUAL REPORT
For the Fiscal Year Ended December 31, 1995
Filed pursuant to the Public Utility Holding Company Act of 1935
by
THE SOUTHERN COMPANY
270 PEACHTREE STREET, N. W.
ATLANTA, GEORGIA 30303
<PAGE>
THE SOUTHERN COMPANY
FORM U5S
1995
TABLE OF CONTENTS
ITEM PAGE NUMBER
1. System Companies and Investments Therein as of
December 31, 1995 1
2. Acquisitions or Sales of Utility Assets 4
3 Issue, Sale, Pledge, Guarantee or Assumptions
of System Securities 4
4. Acquisition, Redemption or Retirement of System
Securities 4
5. Investments in Securities of Nonsystem Companies 7
6. Officers and Directors 8
7. Contributions and Public Relations 36
8. Service, Sales and Construction Contracts 38
9. Wholesale Generators and Foreign Utility Companies 39
10. Financial Statements and Exhibits A
i
<PAGE>
ITEMS
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995.
<TABLE>
<CAPTION>
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
THE SOUTHERN COMPANY
(SOUTHERN) None None n/a n/a
ALABAMA POWER COMPANY
(ALABAMA) 5,608,955 100 $2,690,374 $2,690,374
Southern Electric
Generating
Company (SEGCO) (a) 164,000 50 27,232 27,232
Alabama Property
Company 1,000 100 7,592 7,592
GEORGIA POWER COMPANY
(GEORGIA) 7,761,500 100 4,299,012 4,299,012
SEGCO (a) 164,000 50 27,232 27,232
Piedmont-Forrest
Corporation (PIEDMONT) 100,000 100 9,110 9,110
11,755 (b) 11,755
Georgia Power LP Holdings Corp.
(GEORGIA POWER
HOLDINGS) 500 100 - -
Georgia Power Capital, L.P.
(GEORGIA CAPITAL) n/a n/a 3,388 3,388
GULF POWER COMPANY (GULF) 992,717 100 436,242 436,242
ENERGIA DE NUEVO LEON, S. A.
DE C. V. 358 33 1/3 - -
MISSISSIPPI POWER COMPANY
(MISSISSIPPI) 1,121,000 100 374,884 374,884
MOBILE ENERGY SERVICES
HOLDINGS, INC. (MESH) 1,000 100 40,766 40,766
MOBILE ENERGY SERVICES
COMPANY, LLC (MESCO) (c) n/a 99 66,772 66,772
SAVANNAH ELECTRIC AND
POWER COMPANY
(SAVANNAH) 10,844,635 100 167,812 167,812
1
</TABLE>
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995.
(Continued)
<TABLE>
<CAPTION>
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
SEI HOLDINGS, INC. (SEIH) 1,000 100 $806,507 $806,507
Asociados de Electricidad 11,999 (d) (e) (e)
SEI y Asociados de Argentina S. A. 9,600 (d) (e) (e)
Hidroelectrica Alicura, S. A. 171,690,000 (d) (e) (e)
SEI NEWCO 1, INC. 1,000 100 1,000 1,000
SEI NEWCO 2, INC. 1,000 100 1,000 1,000
SEI HOLDINGS III, INC. (SEIH-III) 1,000 100 118,712 118,712
(merged with SEI Newco 2, Inc. on 12/31/95)
SEI Chile, S. A. 999 (d) (e) (e)
Inversiones SEI Chile Limitada n/a (d) (e) (e)
Empresa Electrica del Norte
Grande, S. A. (Edelnor) 158,643,607 (d) (e) (e)
Sitranor S. A. (f) n/a (d) (e) (e)
Electrica SEI Chile Limitada n/a (d) (e) (e)
Energia Del Pacifico S. A. (g) 1,000 (d) (e) (e)
SEI HOLDINGS VIII, INC. (SEIH-VIII) 1,000 100 22 22
(merged with SEI Newco 2, Inc. on 12/31/95)
SEI Beteiligungs GmbH 1 (d) (e) (e)
SEI HOLDINGS X, INC. (SEIH-X) 1,000 100 - -
(merged with SEI Newco 2, Inc. on 12/31/95)
Southern Electric Brasil
Participacoes Ltda. 999 (d) (e) (e)
SEI HOLDINGS XI, INC. (SEIH-XI) 1,000 100 1 1
(merged with SEI Newco 2, Inc. on 12/31/95)
Southern Electric Brasil
Participacoes Ltda. 1 (d) (e) (e)
SOUTHERN ELECTRIC BAHAMAS
HOLDINGS, LTD. (SEBH) 1,000 100 26,629 26,629
Southern Electric Bahamas, Ltd. 5,000 (d) (e) (e)
Freeport Power Company Limited 910,809 (d) (e) (e)
SOUTHERN ELECTRIC INTERNATIONAL-
EUROPE, INC. 1,000 100 - -
Tesro Holding, B. V. 55 (d) (e) (e)
SEI Bahamas Argentina II, Inc. 5,000 (d) (e) (e)
Southern Investments UK Holdings Limited (h) n/a (d) (e) (e)
Southern Investments UK plc (i) None - - -
South Western Electricity plc (j) 113,989,525 (d) (e) (e)
2
</TABLE>
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995.
(Continued)
<TABLE>
<CAPTION>
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
SOUTHERN ELECTRIC INTERNATIONAL
TRINIDAD, INC. 1,000 100 32,866 32,866
The Power Generation
Company of Trinidad
and Tobago Limited 188,370,000 (d) (e) (e)
SOUTHERN ELECTRIC, INC. 1,000 100 18 18
SEI Bahamas Argentina I, Inc. 5,000 (d) (e) (e)
SEI Inversora, S. A. 7,800 (d) (e) (e)
SOUTHERN ELECTRIC WHOLESALE
GENERATORS, INC. (SEWG) 500 100 - -
SEI Birchwood, Inc. 1,000 (d) (e) (e)
Birchwood Power Partners, L. P.
SEI Hawaiian Cogenerators, Inc. 1,000 (d) (e) (e)
Kalaeloa Partners, L. P.
Southern Energy Marketing, Inc. (k) 1,000 (d) (e) (e)
SOUTHERN COMPANY
SERVICES, INC. (SCS) 14,500 100 875 875
SOUTHERN COMMUNICATIONS
SERVICES, INC. (Southern
Communications) 500 100 99,448 99,448
SOUTHERN ELECTRIC INTER-
NATIONAL, INC. (SEI) 1,000 100 113 113
SEI Operadora de Argentina, S. A. 11,999 (d) (e) (e)
Southern Electric International-
Asia, Inc. (l) 1,000 (d) (e) (e)
Southern Electric International, GmbH (m) 500 (d) (e) (e)
SOUTHERN ELECTRIC RAILROAD
COMPANY (SERC) 5,000 100 5 5
SOUTHERN NUCLEAR OPERATING
COMPANY, INC. (SOUTHERN
NUCLEAR) 1,000 100 1,624 1,624
5,000 (n) 5,000
THE SOUTHERN DEVELOPMENT AND
INVESTMENT GROUP, INC. (Southern 500 100 4,359 4,359
Development)
See Notes below. See also Item 5.
3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Notes to Item 1:
<S> <C>
(a) SEGCO is 50% owned by ALABAMA and 50% owned by GEORGIA.
The amounts shown reflect the respective ownership interests of each company.
(b) Promissory note due on demand; interest rate, based on GEORGIA's embedded cost of capital,
was 10.04% at January 1, 1996.
(c) Date of incorporation was 7/25/95 in the state of Alabama.
(d) This information is contained in Item 9, Part I(a).
(e) This information is contained in Item 9, Part I(b).
(f) Date of incorporation was 11/28/94 in the country of Chile. A corporation to hold transmission assets of Edelnor.
(g) Date of incorporation was 8/25/95 in the country of Chile. A natural gas corporation.
(h) Date of incorporation was 6/23/95 in the countries of England and Wales. A United Kingdom holding company
through which SOUTHERN owns South Western Electricity plc.
(i) Date of incorporation was 6/23/95 in the countries of England and
Wales. A United Kingdom corporation through which SOUTHERN owns South
Western Electricity plc.
(j) Date of incorporation was 4/1/89 in the countries of England and Wales.
SOUTHERN acquired this regional United Kingdom diversified utility
company in September 1995.
(k) Date of incorporation was 4/6/95 in the state of Delaware. A corporation formed to conduct wholesale power
marketing activities.
(l) Date of incorporation was 1/11/95 in the state of Delaware. A corporation to be used for business development in
Asia.
(m) Date of incorporation was 10/13/94 in the country of Austria. A corporation to be used for business development
in Europe.
(n) Unsecured notes payable due on or before December 31, 2000 at an end-of-year interest rate of 5.82%.
</TABLE>
ITEM 2. ACQUISITION OR SALES OF UTILITY ASSETS.
NONE.
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES.
NONE.
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES.
<TABLE>
<CAPTION>
Calendar Year 1995
Name of Company Indicate
Name of Issuer and Acquiring, Redeeming Number of Shares or Principal Amount Commission
Title of Issue or Retiring Securities Acquired Redeemed Retired Consideration Authorization
(See Note)
ALABAMA:
Pollution Control Revenue Bonds
<S> <C> <C> <C> <C> <C>
9 3/8% Series D due 2015 ALABAMA None $50,000,000 $50,000,000 $50,000,000
9 1/4% Series E due 2015 ALABAMA None $81,500,000 $81,500,000 $81,500,000
4
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES.
Calendar Year 1995
Name of Company Indicate
Name of Issuer and Acquiring, Redeeming Number of Shares or Principal Amount Commission
Title of Issue or Retiring Securities Acquired Redeemed Retired Consideration Authorization
(See Note)
GEORGIA:
First Mortgage Bonds
<S> <C> <C> <C> <C> <C>
Variable Rate Series due 2032 GEORGIA None $100,000,000 $100,000,000 $100,000,000
9.23% Series due 2019 GEORGIA $20,856,000 $15,301,000 $36,157,000 $36,313,420
8 3/4% Series due 2022 GEORGIA $15,500,000 $84,500,000 $100,000,000 $100,116,250
8 5/8% Series due 2022 GEORGIA $4,000,000 $35,632,000 $39,632,000 $39,662,000
Variable Rate Series due 2032 GEORGIA None $100,000,000 $100,000,000 $100,000,000
5 1/8% Series due 1995 GEORGIA None $130,000,000 $130,000,000 $130,000,000
Pollution Control Revenue Bonds
6 3/8% Series due 2008 GEORGIA None $10,000 $10,000 $10,000
6 3/8% Series due 2008 GEORGIA None $10,000 $10,000 $10,000
6 3/8% Series due 2008 GEORGIA None $50,000 $50,000 $50,000
6.40% Series due 2007 GEORGIA None $10,000 $10,000 $10,000
6.40% Series due 2007 GEORGIA None $10,000 $10,000 $10,000
6 3/4% Series due 2006 GEORGIA None $10,000 $10,000 $10,000
6 3/4% Series due 2006 GEORGIA None $10,000 $10,000 $10,000
10 1/8% Series due 2015 GEORGIA None $148,535,000 $148,535,000 $151,505,700
10 1/2% Series due 2015 GEORGIA None $156,580,000 $156,580,000 $159,711,600
10.60% Series due 2015 GEORGIA None $57,000,000 $57,000,000 $58,140,000
10.60% Series due 2015 GEORGIA None $43,000,000 $43,000,000 $43,860,000
10 1/2% Series due 2015 GEORGIA None $99,585,000 $99,585,000 $101,576,700
Preferred Stock
$4.60 Series GEORGIA $100 None $100 $54
GULF:
First Mortgage Bonds
9% Series due 2008 GULF None $1,750,000 $1,750,000 $1,750,000
Pollution Control Revenue Bonds
6% Series due 2006 GULF None $125,000 $125,000 $125,000
Cumulative Preferred Stock
Subject to Mandatory Redemption
11.36% Series GULF None 10,000 10,000 $1,000,000
5
</TABLE>
<PAGE>
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES.
<TABLE>
<CAPTION>
Calendar Year 1995
Name of Company Indicate
Name of Issuer and Acquiring, Redeeming Number of Shares or Principal Amount Commission
Title of Issue or Retiring Securities Acquired Redeemed Retired Consideration Authorization
(See Note)
MISSISSIPPI:
First Mortgage Bonds
<S> <C> <C> <C> <C> <C>
9 1/4% Series due 2021 MISSISSIPPI None $1,625,000 None $1,675,055
Pollution Control Bonds
5.80% Series due 2007 MISSISSIPPI None $10,000 None $10,000
SAVANNAH:
First Mortgage Bonds
9 1/4% Series due 2019 SAVANNAH None $28,950,000 $28,950,000 $30,732,810
9 3/8% Series due 2021 SAVANNAH None $300,000 $300,000 $300,000
Note to Item 4: All transactions exempt pursuant to Rule 42(b)(2), (4) or (5) or
authorized in File No. 70-8095 or in the respective proceedings relating to the
issuance and sale of preferred stock.
6
</TABLE>
<PAGE>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES.
<TABLE>
<CAPTION>
Number of
Shares or Carrying
Principal Value
Name of Owner Name of Issuer Amount Owned to Owner
- ------------- -------------- ------------ --------
<S> <C> <C> <C>
ALABAMA (sixteen items) (1) 189,522 shares $50,015
ALABAMA (four items) (2) $544,000 $544,000
GEORGIA (one item) (3) $1,500,000 $1,500,000
Southern Development (one item) (4) 130,381 shares $1
Notes to Item 5:
(1) Securities representing bankruptcy distributions applicable to
obligations of customers incurred in the ordinary course of business and $50,000
invested in a Minority Enterprise Small Business Investment Company located in
Birmingham, Alabama.
(2) Debt securities issued by instrumentalities of political subdivisions
within ALABAMA's service area to build promotional industrial buildings that
will assist in advancing business and industrial development.
(3) Investment made in a private venture capital fund for the purpose of
assisting early-stage and high technology companies located principally in the
Southeast, with a focus on Georgia-based firms. (See File No. 70-8085.)
(4) Represents Southern Development's investment in Integrated
Communication Systems, Inc. (ICS). ICS is engaged in providing two-way
communications over local telephone lines for a wide range of energy-related
services in the residential and small commercial markets.
</TABLE>
7
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART I.
The following are the abbreviations to be used for principal business address
and positions.
Principal Business Address Code
270 Peachtree Street
Atlanta, GA 30303 (a)
600 North 18th Street
Birmingham, AL 35291 (b)
333 Piedmont Avenue, N.E.
Atlanta, GA 30308 (c)
500 Bayfront Parkway
Pensacola, FL 32501 (d)
900 Ashwood Parkway
Suite 500
Atlanta, GA 30338 (e)
2992 West Beach Boulevard
Gulfport, MS 39501 (f)
600 East Bay Street
Savannah, GA 31401 (g)
Suipacha 1111 Piso 18
1368 Buenos Aires, Argentina (h)
LN Alem 712 - Piso 7
(1001) Buenos Aires, Argentina (i)
Apoquindo 3721 Office 114
Santiago, Chile (j)
Avda Grecia 750
Antofagasta, Chile (k)
800 Park Avenue, Aztec West
Almondsbury, Bristol BS12 4SE (l)
64 Perimeter Center East
Atlanta, GA 30346 (m)
42 Inverness Center Parkway
Birmingham, AL 35242 (n)
40 Inverness Center Parkway
Birmingham, AL 35242 (o)
Position Code
Director D
President P
Chief Executive Officer CEO
Chief Financial Officer CFO
Chief Accounting Officer CAO
Chief Information Officer CIO
Chief Production Officer CPO
Senior Executive Vice President SEVP
Executive Vice President EVP
Senior Vice President SVP
Financial Vice President FVP
Vice President VP
Controller/Comptroller C
Counsel L
Secretary S
Treasurer T
General Manager GM
Managing Director MD
SOUTHERN
Name and Principal Address (a) Position
John C. Adams D
755 Lee Street
P. O. Box 272
Alexander City, AL 35011-0272
A. D. Correll D
133 Peachtree Street, N.E.
Atlanta, GA 30303
A. W. Dahlberg D,P,CEO
Paul J. DeNicola (m) D,EVP
Jack Edwards D
P. O. Box 123
Mobile, AL 36601
H. Allen Franklin (c) D,EVP
Bruce S. Gordon D
1310 N. Court House Road
Arlington, VA 22201
L. G. Hardman III D
P. O. Box 149
Commerce, GA 30529
Elmer B. Harris (b) D,EVP
William A. Parker, Jr. D
1380 West Paces Ferry Road, N.W.
Suite 260
Atlanta, GA 30327
William J. Rushton, III D
P. O. Box 2606
Birmingham, AL 35202
Dr. Gloria M. Shatto D
610 Mount Berry Station
Mount Berry, GA 30149
Gerald J. St. Pe' D
P. O. Box 149
8
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART I. (Continued)
SOUTHERN (continued)
Name and Principal Address (a) Position
Pascagoula, MS 39568
Herbert Stockham D
P. O. Box 13018
Birmingham, AL 35213
W. L. Westbrook FVP,CFO,T
David M. Ratcliffe SVP
David R. Altman VP
Thomas G. Boren (e) VP
Bill M. Guthrie (b) VP
C. Alan Martin VP
John G. Richardson VP
1130 Connecticut Avenue, NW
Washington, DC 20036
Dr. W. Robert Woodall, Jr. VP
W. Dean Hudson (m) C
Tommy Chisholm S
ALABAMA
Name and Principal Address (b) Position
Whit Armstrong D
P. O. Box 900
Enterprise, AL 36331
Philip E. Austin D
401 Queen City Avenue
Tuscaloosa, AL 35401
Margaret A. Carpenter D
1452 Carter Hill Road
Montgomery, AL 36106
A. W. Dahlberg (a) D
Peter V. Gregerson, Sr. D
644 Walnut Street
Gadsden, AL 35901
Bill M. Guthrie (b) D,EVP,CPO
Elmer B. Harris D,P,CEO
Carl E. Jones, Jr. D
P. O. Box 2527
Mobile, AL 36622
Wallace D. Malone, Jr. D
P. O. Box 2554
Birmingham, AL 35290
William V. Muse D
Auburn University
107 Samford Hall
Auburn, AL 36849
John T. Porter D
1101 Martin L. King, Jr. Dr. S.W.
Birmingham, AL 35211
Gerald H. Powell D
P. O. Drawer 909
Jacksonville, AL 36265
Robert D. Powers D
202 East Broad Street
Eufaula, AL 36027
John W. Rouse D
P. O. Box 55305
Birmingham, AL 35255
William J. Rushton, III D
P. O. Box 2606
Birmingham, AL 35202
James H. Sanford D
1001 McQueen Smith Road South
Prattville, AL 36066
John C. Webb, IV D
125 W. Washington Street
Demopolis, AL 36732
John W. Woods D
P. O. Box 11007
Birmingham, AL 35288
Banks H. Farris EVP
William B. Hutchins, III EVP,CFO
Charles D. McCrary EVP
Robert A. Buettner SVP,L
Michael D. Garrett SVP
Earl B. Parsons, Jr. SVP
Christopher C. Womack SVP
Art P. Beattie VP,S,T
A. J. Connor VP
James M. Corbitt VP
W. Roy Crow VP
Andy J. Dearman VP
John E. Dorsett VP
Thomas A. Fanning VP,CIO
Robert Holmes, Jr. VP
Robin A. Hurst VP
J. Bruce Jones VP
C. Alan Martin (a) VP
Donald W. Reese VP
Michael L. Scott VP
Julian H. Smith, Jr. VP
W. Ronald Smith VP
Susan N. Story VP
Anthony J. Topazi VP
Terry H. Waters VP
David L. Whitson VP,C,CAO
Phillip Wiedmeyer VP
ALABAMA PROPERTY COMPANY
Name and Principal Address (b) Position
Elmer B. Harris D,P
William B. Hutchins, III D,VP
Susan N. Story D,VP
David L. Whitson C
Art P. Beattie S,T
9
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
GEORGIA
Name and Principal Address (c) Position
Bennett A. Brown D
P. O. Box 4899
Atlanta, GA 30302-4899
A. W. Dahlberg (a) D
William A. Fickling, Jr. D
P. O. Box 1976
Macon, GA 31202-1976
H. Allen Franklin D,P,CEO
L. G. Hardman III D
P. O. Box 149
Commerce, GA 30529
Warren Y. Jobe D,EVP,T,
CFO
James R. Lientz, Jr. D
P. O. Box 4899
Atlanta, GA 30302-4899
William A. Parker, Jr. D
1380 West Paces Ferry Road, N.W.
Suite 260
Atlanta, GA 30327
G. Joseph Prendergast D
191 Peachtree Street, N.E.
Atlanta, GA 30303-1757
Herman J. Russell D
504 Fair Street, S.W.
Atlanta, GA 30313
Dr. Gloria M. Shatto D
610 Mount Berry Station
Mount Berry, GA 30149-0610
William Jerry Vereen D
P. O. Box 460
Moultrie, GA 31776-0460
Carl Ware D
P. O. Box Drawer 1734
Atlanta, GA 30301
Thomas R. Williams D
191 Peachtree Street, NE, 21st Floor
Atlanta, GA 30303
William C. Archer, III EVP
Bill M. Guthrie (b) EVP
William G. Hairston, III (o) EVP
Gene R. Hodges EVP
William P. Bowers SVP
Wayne T. Dahlke SVP
James K. Davis SVP
Robert H. Haubein, Jr. SVP
Fred D. Williams SVP
J. D. Woodard (o) SVP
Judy M. Anderson VP,S
J. Thomas Beckham, Jr. (o) VP
Robert L. Boyer VP
M. A. Brown VP
J. L. Conn VP
Fred W. DeMent, Jr. VP
Thomas A. Fanning VP,CIO
J. W. George VP
Leonard J. Haynes VP
Craig S. Lesser VP
J. B. Manley VP
J. L. Martin, Jr. VP
Charles K. McCoy (o) VP
J. A. Parramore, Jr. VP
Cliff Thrasher VP,C,CAO
James A. Wilson VP
Dr. W. Robert Woodall, Jr. (a) VP
PIEDMONT
Name and Principal Address (c) Position
H. Allen Franklin D,P
Warren Y. Jobe D,EVP,T
J. Alex Parramore D,VP
W. G. Jones, Jr. VP
Judy M. Anderson S
Georgia Power L. P. Holdings Corp.
Name and Principal Address (c) Position
Warren Y. Jobe D,P,T
Judy M. Anderson VP,S
Charles O. Rawlins (m) VP
SEGCO
Name and Principal Address (b) Position
Robert L. Boyer (c) D
H. Allen Franklin (c) D,VP
Bill M. Guthrie D,VP
Elmer B. Harris D,P
Robert H. Haubein, Jr. (c) D
William B. Hutchins, III D,VP
Warren Y. Jobe (c) D
Charles D. McCrary D
Earl B. Parsons, Jr. D
David L. Whitson C
Art P. Beattie S,T
10
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
GULF
Name and Principal Address (d) Position
Dr. Reed Bell, Sr. D
5177 N. 9th Avenue, Suite 1
Pensacola, FL 32504
Travis J. Bowden D,P,CEO
Paul J. DeNicola (m) D
Fred C. Donovan D
P. O. Box 13370
Pensacola, FL 32591
W. Deck Hull, Jr. D
P. O. Box 2180
Panama City, FL 32402
C. Walter Ruckel D
P. O. Box 187
Valparaiso, FL 32580
Joseph K. Tannehill D
10 Arthur Drive
Lynn Haven, FL 32444
F. M. Fisher, Jr. VP
Bill M. Guthrie (b) VP,CPO
J. E. Hodges, Jr. VP
G. Edison Holland, Jr. VP,L
C. Alan Martin (a) VP
Arlan E. Scarbrough VP,CFO
Ronnie R. Labrato C
Warren E. Tate S,T
ENERGIA de NUEVO LEON, S.A. DE C.V.
Name and Principal Address (e) Position
Marcelo Canales Clarion D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
William R. Easter D
Jean M. Fauvd D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Ismael Garza T. D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Arturo G. Garza Zermeno D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Andres Gonzalez Sandoval D,S
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Tanenguy Le Marechal D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Raul Rangel Hinojosa D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Santiago C. Reyes Retana D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
W. Clay Smith (m) D
MISSISSIPPI
Name and Principal Address (f) Position
Paul J. DeNicola (m) D
Edwin E. Downer D
7642 Poplar Springs Drive
Meridian, MS 39305
Dwight H. Evans D,P,CEO
Robert S. Gaddis D
P. O. Box 168
Laurel, MS 39440
Walter H. Hurt, III D
P. O. Box 9
Inverness, MS 38753
Aubrey K. Lucas D
P. O. Box 5001
Southern Station
Hattiesburg, MS 39406
George A. Schloegel D
Hancock Bank
P. O. Box 4019
Gulfport, MS 39502
Philip J. Terrell D
701 West North Street
Pass Christian, MS 39571
N. Eugene Warr D
2600 Beach Boulevard
Biloxi, MS 39531
H. Ed Blakeslee VP
Bill M. Guthrie (b) VP,CPO
Frederick D. Kuester VP
C. Alan Martin (a) VP
Don E. Mason VP
Michael W. Southern VP,CFO,
S,T
Frances V. Turnage C
11
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
MOBILE ENERGY SERVICES HOLDINGS, INC.
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Thomas G. Boren D,P,CEO
S. Marce Fuller D,VP
Raymond D. Hill D,VP,
CFO
J. Bruce Jones D
Thomas J. Madden, III D
Mark R. Ogle VP
Dean G. Koch VP
James A. Ward VP,C
Tommy Chisholm (a) S
MOBILE ENERGY SERVICES COMPANY, LLC
Name and Principal Address (e) Position
Thomas G. Boren P,CEO
Raymond D. Hill VP,CFO
Dean G. Koch VP,GM
Christopher Kysar VP
S. Marce Fuller VP
Mark R. Ogle VP
James A. Ward VP,C
Tommy Chisholm (a) S
SAVANNAH
Name and Principal Address (g) Position
Helen Quattlebaum Artley D
9 Avenue of the Pines
Savannah, GA 31406
Paul J. DeNicola (m) D
Brian R. Foster D
P. O. Box 9586
Savannah, GA 31412
Arthur M. Gignilliat, Jr. D,P,CEO
Walter D. Gnann D
P. O. Box 334
Springfield, GA 31329
Robert B. Miller, III D
P. O. Box 8003
Savannah, GA 31412
Arnold M. Tenenbaum D
P. O. Box 2567
Savannah, GA 31498
Frederick F. Williams, Jr. D
8 Rockwell Avenue South
Savannah, GA 31419
W. Miles Greer VP
Bill M. Guthrie (b) VP,CPO
C. Alan Martin (a) VP
Larry M. Porter VP
Kirby R. Willis VP,T,CFO
Lavonne Calandra S
Nancy Frankenhauser C
SEIH
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Thomas G. Boren D,P
Travis J. Bowden (d) D
Paul J. DeNicola (m) D
H. Allen Franklin (c) D
W. L. Westbrook (a) D
Raymond D. Hill VP,T,CFO
Ronald E. Leggett VP
Richard J. Pershing VP
Charles W. Whitney (l) VP
Tommy Chisholm (a) S
James A. Ward C
Asociados De Electricidad, S.A.
Name and Principal Address (h) Position
Felicia L. Bellows (i) D,VP
Mariano F. Grondona (i) D,S
J. William Holden, III (e) D,P
S. Marce Fuller (e) D
Jose Martinez de Hoz D
SEI y Asociados de Argentina, S.A.
Name and Principal Address (h) Position
Juan Carlos Apostolo D
Felicia L. Bellows (i) D,VP
Thomas G. Boren (e) D
Peter J. Davenport D
Mariano F. Grondona D,S
Raymond D. Hill (e) D
J. William Holden, III (e) D,P
W. L. Westbrook (a) D
Felipe Maria Castro Cranwell D
Roberto Guillermo Haas D
Ronald E. Leggett (e) D
Jose Martinez de Hoz D
Ricardo Urbano Sirl D
James A. Ward (e) D
12
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Hidroelectrica Alicura, S.A.
Name and Principal Address (i) Position
Felicia L. Bellows D,VP
Matias Bourdieu D
Peter J. Davenport D
Alfredo H. Estevez D
Mariano F. Grondona D,S
Roberto Guillermo Haas D
J. William Holden, III (e) D
Jose Alberto Michaux D
Juan Carlos Apostolo D
Thomas G. Boren (e) D
Raymond D. Hill (e) D
Ronald E. Leggett (e) D
Daniel Enrique Micheloud D
Gonzalo Nunez D
Alfredo Ricardo Pujante D
W. L. Westbrook (a) D
SEIH-III
Name and Principal Address (e) Position
Thomas G. Boren D,P
A. W. Dahlberg (a) D
W. L. Westbrook (a) D
Raymond D. Hill VP,CFO
James A. Ward T
Tommy Chisholm (a) S
SEI Chile, S.A.
Name and Principal Address (j) Position
Felicia L. Bellows (i) D
Edgardo Boeninger Kausel D
Jorge Granic Latorre D
Pastor Sanjurjo (k) D,GM
Carlos Larrain Pena D
Eduardo Zuniga Pacheco D
Empresa Electrica del Norte Grande, S.A.
Name and Principal Address (k) Position
Kerry E. Adams (n) D
Raul Castro Letelier D
Edmundo Dupre Echeverria D,VP
Patricio Leighton Gonzalez D,P
Pastor Sanjurjo D
W. L. Westbrook (a) D
Jose I. Zaldivar Peralta L
Sergio Balbontin Cavada GM
Sitranor S. A.
Name and Principal Address (k) Position
Ricardo Campano D
Mario Espinoza D. D
Luis Hormazibal D
Carlos Larrain Pena D
Oscar Moscoso Fabres D
Pastor Sanjurjo D
Eduardo Zuniga Pacheco D
Arturo Bulnes Concha D
Christopher Darnell D
Jaime de los Hoyes D
Jorge Granic Latorre D
Hector Saldivar D
Francisco Sibias D
Carlos Urgua D
Energia del Pacifico S. A.
Name and Principal Address (k) Position
Jorge Granic Latorre D
Carlos Larrain Pena D
Pastor Sanjurjo D
Southern Electric International - Europe, Inc.
Name and Principal Address (e) Position
James A. Ward D,VP,T
Thomas G. Boren P
Tommy Chisholm (a) S
SEI Bahamas Argentina II, Inc.
Name and Principal Address Position
James A. Ward (e) D,P
Tommy Chisholm (a) S,T
Southern Investments UK Holdings Limited
Name and Principal Address (e) Position
Thomas G. Boren D
Raymond D. Hill D
Richard J. Pershing D
James A. Ward D
Charles W. Whitney (l) D
13
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Southern Investments UK plc
Name and Principal Address (e) Position
Thomas G. Boren D
Raymond D. Hill D
Richard J. Pershing D
James A. Ward D
Charles W. Whitney (l) D
Southern Western Electricity plc
Name and Principal Address (l) Position
John O. Gough D
Carson B. Harreld D
Alan W. Harrelson D
Anthony P. Hichens D
Anthony E. Isaac D
Gale E. Klappa D,CEO
C. Philip Saunders D
Charles W. Whitney D
Robin D. Edmounds S
SEIH-VIII
Name and Principal Address (e) Position
Thomas G. Boren P
Tommy Chisholm (a) S,T
SEI Beteiligungs GmbH
Name and Principal Address (e) Position
James A. Ward D,MD
Norbert Pacho MD
Southern Electric International Trinidad, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
Tommy Chisholm (a) S,T
The Power Generation Company of
Trinidad and Tobago Limited
Name and Principal Address Position
Ronald Chan D
Scotia Centre
Cr. Park and Richmond Streets
Port of Spain, Trinidad, W.I.
Ronald E. Leggett (e) D
John MacKay D
6 St. Kitts Avenue
Federation Park, Trinidad, W. I.
Judith Morris D
63 Frederick Street
Port of Spain, Trinidad, W.I.
Jacqueline Quamina D
Eric Williams Plaza
Independence Square
Port of Spain, Trinidad, W.I.
Chandrabhan Sharma D
University of the West Indies
St. Augustine, Trinidad, W.I.
Terry W. Timm D
200 Westlake Park Boulevard
P. O. Box 3092
Houston, TX 77253-3092
W. L. Westbrook (a) D
Thomas M. Black (e) D
Henry T. E. Coolidge, Jr. D,GM
6A Queens Park West,
First Floor
Port of Spain, Trinidad, W.I.
Angela Hamel-Smith D
87 Sandown Road
Goodwood Park, Carenage
Trinidad, W.I.
Christine Joseph D
63 Frederick Street
Port of Spain, Trinidad, W. I.
Gerald J. Peereboom D
P. O. Box 714
Port of Spain, Trinidad, W.I.
Nicole Richards D
Eric Williams Plaza
Independence Square
Port of Spain, Trinidad, W.I.
Dennis Singh D
63 Frederick Street
Port of Spain, Trinidad, W.I.
James A. Ward (e) D
June Ahye S
63 Frederick Street
Port of Spain, Trinidad, W.I.
SEIH-X
Name and Principal Address (e) Position
Thomas G. Boren P
Tommy Chisholm (a) S,T
14
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
SEIH-XI
Name and Principal Address (e) Position
Thomas G. Boren P
Tommy Chisholm (a) S,T
SCS
Name and Principal Address (m) Position
A. W. Dahlberg (a) D
Paul J. DeNicola D,P,CEO
H. Allen Franklin (c) D
Elmer B. Harris (b) D
Bill M. Guthrie (b) SEVP,
CPO
Kerry E. Adams (n) EVP
David M. Ratcliffe (a) EVP
W. L. Westbrook (a) EVP,T
Thomas A. Fanning SVP
William K. Newman (b) SVP
Fred D. Williams SVP
David R. Altman (a) VP
Robert S. Beason VP
I. Otis Berkhan VP
Tommy Chisholm (a) VP,S,L
A. J. Connor (b) VP
Douglas E. Dutton (n) VP
J. Kevin Fletcher VP
Dr. C. H. Goodman (b) VP
J. R. Harris (e) VP
W. Dean Hudson VP,C
C. Alan Martin (a) VP
J. Mike McClure VP
John G. Richardson VP
1130 Connecticut Avenue, NW
Washington, DC 20036
Jerry L. Stewart (b) VP
Dr. W. Robert Woodall, Jr. (a) VP
Charles O. Rawlins T
Southern Communications
Name and Principal Address (m) Position
Robert S. Beason D
Wayne T. Dahlke (c) D
Robert G. Dawson D,P,CEO
Paul J. DeNicola D
Dwight H. Evans (f) D
Thomas A. Fanning D
John E. Hodges, Jr. (d) D
William B. Hutchins, III (b) D
David M. Ratcliffe (a) D
W. L. Westbrook (a) D
Tommy Chisholm (a) S
R. Craig Elder T
SEBH
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Thomas G. Boren D,P
Robert G. Dawson (m) VP
Raymond D. Hill VP,T,
CFO
Ronald E. Leggett VP
James A. Ward C
Tommy Chisholm (a) S
Southern Electric Bahamas Ltd.
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Thomas G. Boren D,P
Robert G. Dawson (m) VP
Raymond D. Hill VP, T,
CFO
Ronald E. Leggett VP
Tommy Chisholm (a) S
James A. Ward C
Freeport Power Company Limited
Name and Principal Address Position
Thomas G. Boren (e) D
Larry R. Brantley P,CEO
P. O. Box F-888
Freeport, Grand Bahama Island,
Bahamas
Jack A. Hayward D
P. O. Box F-888
Freeport, Grand Bahama Island,
Bahamas
Albert J. Miller D
P. O. Box F-888
Freeport, Grand Bahama Island,
Bahamas
Richard J. Pershing (e) D
Richard T. Pittenger (e) D
Edward P. St. George D
P. O. Box F-888
Freeport, Grand Bahama Island,
Bahamas
Raymond D. Hill (e) VP,CFO
15
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART I. (Continued)
Freeport Power Company Limited (continued)
Name and Principal Address Position
Ian O. Barry VP,T
P. O. Box F-888
Freeport, Grand Bahama Island,
Bahamas
Ronald E. Leggett (e) VP
Willie A. M. Moss VP,S
P. O. Box F-888
Freeport, Grand Bahama Island,
Bahamas
Southern Electric, Inc.
Name and Principal Address (e) Position
James A. Ward D
Thomas G. Boren P
Tommy Chisholm (a) S,T
SEI Bahamas Argentina I, Inc.
Name and Principal Address Position
James A. Ward (e) D,P
Tommy Chisholm (a) S,T
SEI Inversora, S.A.
Name and Principal Address (h) Position
Alan Arntsen (i) D,P
Mariano F. Grondona D
James A. Ward (e) D,VP
Manuel Benito D
SEI
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Thomas G. Boren D,P,CEO
Travis J. Bowden (d) D
A. W. Dahlberg (a) D
Paul J. DeNicola (m) D,VP
H. Allen Franklin (c) D
W. L. Westbrook (a) D,VP
Raymond D. Hill SVP,CFO
Richard J. Pershing SVP
Tommy Chisholm (a) VP,S
S. Marce Fuller VP
David T. Gallaspy VP
J. R. Harris VP
J. William Holden, III VP
Ronald E. Leggett VP
Mark S. Lynch VP
William A. Maner, III VP
Charles W. Whitney (l) VP
James A. Ward C
Karl E. Olsoni T
SEI Operadora de Argentina, S.A.
Name and Principal Address (h) Position
Mariano F. Grondona D,S
J. William Holden, III (e) D,P
Ronald E. Leggett (e) D
Felicia L. Bellows (i) D
Randall E. Harrison (e) D
Jose Martinez de Hoz D
Southern Electric International - Asia, Inc
Name and Principal Address (e) Position
Thomas G. Boren D,P
Raymond D. Hill VP,CFO
Tommy Chisholm (a) S
Southern Electric International GmbH
Name and Principal Address (e) Position
Thomas G. Boren GM
Tommy Chisholm (a) GM
William A. Franks GM
Raymond D. Hill GM
Richard J. Pershing GM
James A. Ward GM
Charles W. Whitney GM
SERC
Name and Principal Address (n) Position
Bill M. Guthrie (b) D,P
Kenneth H. Harrell VP
Earl B. Parsons, Jr. (b) VP
Larry M. Porter (g) VP
Tommy Chisholm (a) S,T
16
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
SOUTHERN NUCLEAR
Name and Principal Address (o) Position
A. W. Dahlberg (a) D
Paul J. DeNicola (m) D
H. Allen Franklin (c) D
William G. Hairston, III D,P,CEO
Elmer B. Harris (b) D
James H. Miller, III EVP,L
Jackie D. Woodard EVP
James W. Averett VP
J. Thomas Beckham, Jr. VP
Louis B. Long VP
C. Alan Martin (a) VP
Charles K. McCoy VP
John O. Meier VP,S
D. N. Morey, III VP
Robert M. Gilbert , Jr. C,T,CAO
Southern Development
Name and Principal Address (m) Position
William P. Bowers (c) D
Paul J. DeNicola D
Dwight H. Evans (f) D
Thomas A. Fanning D
J. Kevin Fletcher D,P
Thomas R. Kellogg D,VP,GM
Michael L. Scott (c) D
W. L. Westbrook (a) D
Tommy Chisholm (a) S
Alan L. Leverett T
SEWG
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Thomas G. Boren D,P
Travis J. Bowden (d) D
Paul J. DeNicola (m) D
H. Allen Franklin (c) D
W. L. Westbrook (a) D
Raymond D. Hill VP,T,CFO
Ronald E. Leggett VP
Richard J. Pershing VP
Tommy Chisholm (a) S
James A. Ward C
Southern Energy Marketing, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
S. Marce Fuller D,EVP
Raymond D. Hill D,VP,CFO
James A. Ward D,VP,T,C
W. L. Westbrook (a) D
John J. Robinson VP
C. Philip Saunders (l) VP
Tommy Chisholm (a) S
Inversores de Electricidad, S.A.
Name and Principal Address (i) Position
Alan Arntsen (i) D,P
SEI Birchwood, Inc.
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Thomas G. Boren D,P
S. Marce Fuller D,VP
W. L. Westbrook (a) D
Thomas E. Dorsey VP
Raymond D. Hill VP,CFO
Mark S. Lynch VP
Karl E. Olsoni VP,T
James A. Ward VP,C
Tommy Chisholm (a) S
SEI Hawaiian Cogenerators, Inc.
Name and Principal Address (e) Position
Kerry E. Adams (n) D,VP
Thomas G. Boren D,P
W. L. Westbrook (a) D
Raymond D. Hill VP,CFO
Tommy Chisholm (a) S
James A. Ward T
17
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS. Part II. Financial Connections.
<TABLE>
<CAPTION>
Name of Officer Name and Location Position Held in Applicable
or Director of Financial Institution Financial Institution Exemption Rule
Rule No. 70
Subdivision
<S> <C> <C> <C>
John C. Adams Aliant Bank, Alexander City, AL Director (a)
Aliant National Corporation, Alexander
City, AL Director (a)
Whit Armstrong The Citizens Bank Chief Executive (c)
Enterprise, AL Officer,
Chairman of the Board
of Directors and President
Enterprise Capital Corporation Chairman of the Board of
Enterprise, AL Directors, President (c)
Travis J. Bowden AmSouth Bank of Florida,Clearwater, FL Director (c)
A. D. Correll SunTrust Bank of Georgia, Atlanta, GA Director (a)
SunTrust Bank of Atlanta, Atlanta, GA Director (a)
W. Roy Crow Barbour County Bank, Eufaula, AL Director (f)
A. W. Dahlberg SunTrust Bank of Georgia Director (a);(c)
Atlanta, GA
SunTrust Bank, Atlanta, GA Director (a);(c)
Brian R. Foster NationsBank, Atlanta, GA Executive Vice (c)
President
NationsBank, Savannah, GA President and Chief
Executive Officer
(Savannah (c)
operations)
H. Allen Franklin SouthTrust Bank, Birmingham, AL Director (a);(c)
Robert S. Gaddis Trustmark National Bank, President (c);(g)
Laurel, MS
L. G. Hardman, III First Commerce Bancorp, Inc. Chairman of the Board
Commerce, GA of Directors and Chief
Executive Officer (a);(c);(g)
First National Bank of Commerce, Chairman of the
Commerce, GA Board of Directors (c);(g)
Elmer B. Harris AmSouth Bancorporation, Director (a);(c);(e);(f)
Birmingham, AL
AmSouth Bank, N.A., Birmingham, AL Director (a);(c);(e);(f)
John E. Hodges, Jr. Barnett Bank of West Florida, Pensacola, FL Director (f)
W. D. Hull, Jr. SunTrust Bank/West Florida, Vice Chairman of the
Panama City, FL Board of Directors (c)
Carl E. Jones First Alabama Bank, Mobile, AL Chairman and Chief
Executive Officer (c)
Regions Financial Corporation, Mobile, AL Regional President (c)
James R. Lientz, Jr. NationsBank of Georgia, N.A., Atlanta, GA Director, President (c)
Wallace D. Malone SouthTrust Corporation, Birmingham, AL Chairman of the Board
of Directors and Chief
Executive Officer (c)
William V. Muse Alabama National Bancorporation, Director
Shoal Creek, AL
John T. Porter Citizens Federal Bank, Birmingham, AL Director (c)
18
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS. Part II. Financial Connections. (Continued)
Name of Officer Name and Location Position Held in Applicable
or Director of Financial Institution Financial Institution Exemption Rule
Rule No. 70
Subdivision
<S> <C> <C> <C>
G. Joseph
Prendergast Wachovia Bank of Georgia, Atlanta, GA Chairman of the
Board of Directors (c)
Wachovia Bank of South Carolina Chairman of the
Board of Directors (d)
Wachovia Bank of North Carolina Director (d)
Wachovia Corporation, Atlanta, GA Executive Vice
President (d)
C. Walter Ruckel Vanguard Bank and Trust, Valparaiso, FL Chairman of the
Board of Directors (c)
Herman J. Russell Citizens Trust Bank, Atlanta, GA Chairman of the
Board of Directors (c)
Citizens Bancshares Corp. Atlanta, GA Chairman of the
Board of Directors (c)
Wachovia Corporation of Georgia, Director (c)
Atlanta, GA
George A. Schloegel Hancock Bank, Gulfport, MS Director and
President (c)
Hancock Holding Company, Gulfport, MS Vice Chairman of
the Board
of Directors (c)
Hancock Bank of Louisiana, Baton Rouge
Louisiana Director (d)
First National Bank of Denham Springs
Denham Springs, LA Director (d)
William R. Smith SouthTrust Bank of Calhoun County, N.A.
Anniston, AL Director (f)
Gerald St. Pe' Merchants & Marine Bank, Pascagoula, MS Director (a)
Herbert Stockham SouthTrust Bank, Birmingham, AL Director (a);(c)
SouthTrust Corporation, Director (c)
Birmingham, AL
Arnold Tenenbaum First Union National Bank of Georgia, Director (c)
Atlanta, GA
First Union National Bank of Savannah, Director (c)
Savannah, GA
John W. Woods AmSouth Bancorporation, Chairman of the (c)
Birmingham, AL Board of Directors
AmSouth Bank of Alabama, Chief Executive (c)
Birmingham, AL Officer of both
institutions and
President of AmSouth
Bank
19
</TABLE>
<PAGE>
ITEM 6. EXECUTIVE COMPENSATION. PART III.
(a) Summary Compensation Tables. The following tables set forth
information concerning any Chief Executive Officer and the four most highly
compensated executive officers for SCS, SEI, Southern Communications, Southern
Development and SOUTHERN NUCLEAR serving as of December 31, 1995, as defined by
the Securities and Exchange Commission. ALABAMA, GEORGIA, GULF, MISSISSIPPI and
SAVANNAH are incorporated by reference to page numbers III-13 through III-18 in
the SOUTHERN system's combined Form 10-K for the year ended December 31, 1995.
Incorporated by reference to "Summary Compensation Table" under ELECTION OF
DIRECTORS in SOUTHERN's definitive Proxy Statement relating to the 1996 annual
meeting of stockholders.
<TABLE>
<CAPTION>
Key terms used in this Item will have the following meanings:-
<S> <C>
ESP......................................... Employee Savings Plan
ESOP........................................ Employee Stock Ownership Plan
SBP......................................... Supplemental Benefit Plan
ERISA....................................... Employee Retirement Income Security Act
</TABLE>
<TABLE>
<CAPTION>
SCS
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name Underlying Term
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
A. W. Dahlberg 1995 722,489 120,415 6,577 52,203 866,493 40,755
Director 1994 600,026 120,415 6,579 43,062 306,459 32,630
1993 477,967 96,331 17,707 30,644 225,406 44,547
Paul J. DeNicola 1995 384,845 50,464 3,037 26,297 479,747 21,573
President, Chief 1994 361,618 74,294 3,540 26,569 188,858 21,381
Executive Officer, 1993 313,970 63,641 6,832 7,498 132,986 24,436
Director
Bill M. Guthrie 1995 326,877 49,939 1,533 17,518 275,400 17,810
Senior Executive 1994 308,837 58,140 384 16,781 87,085 16,646
Vice President 1993 275,185 32,967 14,117 6,524 64,959 32,890
See footnotes on the next page.
20
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCS
SUMMARY COMPENSATION TABLE
(Continued)
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name Underlying Term
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
David M. Ratcliffe 1995 281,615 68,7854 - 15,524 233,237 13,718
Executive Vice 1994 240,291 61,989 2,581 13,137 100,336 13,349
President 1993 226,373 45,917 8,722 8,114 75,378 17,887
W. L. Westbrook 1995 242,606 29,339 1,841 13,002 191,358 13,401
Executive Vice 1994 228,514 37,799 2,359 9,341 81,504 13,101
President 1993 219,354 27,793 16,864 3,919 69,484 30,153
1 Tax reimbursements by SCS on certain personal benefits.
2 Payouts made in 1994, 1995 and 1996 for the four-year performance periods
ending December 31, 1993, 1994 and 1995. 3 SCS contributions to the ESP, ESOP,
non-pension related accruals under the SBP (ERISA excess plan under which
accruals are made to offset Internal Revenue Code imposed limitations under the
ESP and ESOP), for the following:
ESP ESOP SBP
A. W. Dahlberg $7,781 $1,151 $31,823
Paul J. DeNicola 6,750 1,151 13,672
Bill M. Guthrie 6,750 1,151 9,909
David M. Ratcliffe 6,188 1,151 6,379
W. L. Westbrook 6,750 1,151 5,500
4 Also included for Mr. Ratcliffe is a one-time lump-sum payment of $25,000
given in connection with his appointment to his current position.
21
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEI
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name Underlying Term
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)5 (Shares) ($)6 ($)7
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Thomas G. Boren 1995 248,333 298,497 (8) 12,579 13,295 - 10,215
President, 1994 233,566 150,000 7,628 12,715 - 11,990
Director 1993 196,106 100,698 21,389 3,559 - 23,984
Richard J. Pershing 1995 162,500 165,000 2,974 - - 8,287
Senior Vice President 1994 148,178 75,000 347 - - 7,793
1993 138,068 52,150 13,718 - - 25,491
Raymond D. Hill 1995 162,500 165,000 1,641 - - 8,252
Senior Vice President 1994 146,667 75,000 105 - - 5,986
1993 169,525 (9) 48,750 13,034 - - 18,000
Charles W. Whitney 1995 197,227 94,500 448 - - 8,376
Vice President 1994 141,778 23,293 1,450 - 19,271 7,252
1993 - - - - - -
S. Marce Fuller 1995 184,267 67,500 1,844 - - 6,768
Vice President 1994 109,869 62,500 2 - - 5,588
1993 - - - - - -
5 Tax reimbursement by SEI on certain personal benefits.
6 Employees of SEI are not yet eligible for these payouts. In 1994, Mr. Whitney
was an employee of GEORGIA making him eligible for this payout.
7 SEI contributions to the ESP, ESOP, non-pension related accruals under the SBP
(ERISA excess plan under which accruals are made to offset Internal Revenue Code
imposes limitations under the ESP and ESOP), for the following:
ESP ESOP SBP
Thomas G. Boren $7,650 $1,151 $1,414
Richard J. Pershing 6,750 1,151 386
Raymond D. Hill 6,750 1,151 351
Charles W. Whitney 7,030 1,151 195
S. Marce Fuller 5,925 843 -
8 Includes a one-time award of $48,497 under the key contributor program in
recognition of exemplary performance in 1995. The key contributor program
permits an eligible employee's supervisor to make a "spot" award apart from any
other compensation plan to recognize a significant contribution made by the
employee.
9 Mr. Hill's 1993 salary includes additional compensation for
relocation costs.
22
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Southern Communications
and
Southern Development
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name Underlying Term
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)10 (Shares) ($)11 ($)12
- ------------------------------------------------------------------------------------------------------------------------
Southern Communications
<S> <C> <C> <C> <C> <C> <C> <C>
Robert G. Dawson 1995 498,671(13) 65,000 277 - - 9,430
President, Chief 1994 286,221 50,000 - - - 8,148
Executive Officer, 1993 154,668 14,996 4,539 2,390 25,661 15,043
Director
Southern Development
J. Kevin Fletcher 1995 113,762 19,506 107 4,023 68,215 5,933
President, 1994 - - - - - -
Director 1993 - - - - - -
Tommy L. Kellogg 1995 90,233 29,028 - 2,574 24,614 4,532
Vice President and 1994 - - - - - -
General Manager 1993 - - - - - -
10 Tax reimbursement by Southern Development and Southern
Communications on certain personal benefits.
11 Payouts made in 1994, 1995 and 1996 for the four-year performance periods
ending December 31, 1993, 1994 and 1995.
12 Southern Communications' and Southern Development's contributions to
the ESP, ESOP, non-pension related accruals under the SBP (ERISA excess plan
under which accruals are made to offset Internal Revenue Code imposed
limitations under the ESP and ESOP), for the following:
ESP ESOP SBP
Robert G. Dawson $6,750 $1,151 $1,529
J. Kevin Fletcher 5,117 816 -
Tommy R. Kellogg 3,908 624 -
13 Mr. Dawson's gross wages include miscellaneous payments due to his
assignment in Buenos Aires, Argentina. Mr. Dawson served as vice president of
SEI's Latin American and Caribbean Assets from March 1994 until October 1995.
23
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SOUTHERN NUCLEAR
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name Underlying Term
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)14 (Shares) ($)15 ($)16
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
W. G. Hairston, III 1995 296,988 47,489 6,020 15,785 289,170 16,442
President and Chief 1994 287,831 44,521 3,225 15,725 88,162 14,593
Executive Officer 1993 234,454 53,202 15,925 11,728 54,126 30,475
Jack D. Woodard 1995 202,085 37,116 1,235 8,969 141,834 10,215
Executive Vice 1994 190,128 33,489 1,168 7,653 36,698 10,046
President 1993 164,282 30,900 12,715 3,181 24,252 26,707
James H. Miller, III 1995 201,216 30,094 1,946 8,941 141,834 4,500
Executive Vice 1994 121,846 29,549 888 7,629 - -
President 1993 - - - - - -
Charles K. McCoy 1995 161,974 22,587 716 7,159 94,553 8,549
Vice President 1994 150,139 21,012 1,398 - 23,635 8,004
1993 146,159 18,806 13,827 - 20,149 25,760
J. Thomas
Beckham, Jr. 1995 161,990 17,671 813 7,159 94,553 8,579
Vice President 1994 150,139 20,262 308 - 23,635 8,137
1993 146,796 18,134 13,402 - 20,149 25,852
14 Tax reimbursement by SOUTHERN NUCLEAR on certain personal benefits.
15 Payouts made in 1994, 1995 and 1996 for the four-year performance periods
ending December 31, 1993, 1994 and 1995, respectively.
16 SOUTHERN NUCLEAR contributions to the ESP, ESOP, non-pension related accruals
under the SBP (ERISA excess plan under which accruals are made to offset
Internal Revenue Code imposed limitations under the ESP and ESOP), for the following:
ESP ESOP SBP
William G. Hairston, III $6,750 $1,151 $8,541
Jack D. Woodard 6,750 1,151 2,314
James H. Miller, III 4,500 - -
Charles K. McCoy 6,469 1,151 929
J. Thomas Beckham, Jr. 6,735 1,151 693
24
</TABLE>
<PAGE>
STOCK OPTION GRANTS IN 1995
Stock Option Grants. The following table sets forth all stock option
grants to the named executive officers of each operating subsidiary during the
year ending December 31, 1995. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH
are incorporated by reference to page numbers III-19 and III-20 in the SOUTHERN
system's combined Form 10-K for the year ended December 31, 1995. Stock Option
Grants in 1995 for SOUTHERN is incorporated by reference to "Stock Option
Grants" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement
relating to 1996 annual meeting of stockholders.
<TABLE>
<CAPTION>
Individual Grants Grant Date Value
Number of
Securities % of Total
Underlying Options Exercise
Share Granted to or
Options Employees in Base Price Expiration Grant Date
Name Granted17 Fiscal Year18 ($/Sh)17 Date17 Present Value($)19
------------------------------------------------------------------------------------------------------------
SCS
<S> <C> <C> <C> <C> <C>
A. W. Dahlberg 52,203 4.5 21.6250 07/17/2005 148,779
Paul J. DeNicola 26,927 2.3 21.6250 07/17/2005 76,742
Bill M. Guthrie 17,518 1.5 21.6250 06/01/2000 45,021
David M. Ratcliffe 15,524 1.3 21.6250 07/17/2005 44,243
W. L. Westbrook 13,002 1.1 21.6250 07/17/2005 37,056
SEI
Thomas G. Boren 13,295 1.1 21.6250 07/17/2005 37,891
Richard J. Pershing - - - - -
Raymond D. Hill 4,221 0.4 21.6250 07/17/2005 12,030
Charles W. Whitney - - - - -
S. Marce Fuller - - - - -
Southern Communications
Robert G. Dawson - - - - -
See footnotes on the next page.
25
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
STOCK OPTION GRANTS IN 1995
Individual Grants Grant Date Value
Number of
Securities % of Total
Underlying Options Exercise
Share Granted to or
Options Employees in Base Price Expiration Grant Date
Name Granted17 Fiscal Year18 ($/Sh)17 Date17 Present Value($)19
------------------------------------------------------------------------------------------------------------
Southern Development
<S> <C> <C> <C> <C> <C>
J. Kevin Fletcher 4,023 0.3 21.6250 07/17/2005 11,466
Tommy R. Kellogg 2,574 0.2 21.6250 07/17/2005 7,336
SOUTHERN NUCLEAR
William G. Hairston, III 15,785 1.4 21.6250 07/17/2005 44,987
Jack D. Woodard 8,969 0.8 21.6250 07/17/2005 25,562
James H. Miller, III 8,941 0.8 21.6250 07/17/2005 25,482
Charles K. McCoy 7,159 0.6 21.6250 07/17/2005 20,403
J. Thomas Beckham, Jr. 7,159 0.6 21.6250 07/17/2005 20,403
17 Grants were made on July 17, 1995, and vest 25% per year on the anniversary date of the grant. Grants fully
vest upon termination incident to death, disability, or retirement. The exercise price is the average of the high
and low fair market value of SOUTHERN's common stock on the date granted. In accordance with the terms of the
Executive Stock Plan, Mr. Guthrie's unexercised options expire on June 1, 2000, three years after his normal date of
retirement.
18 A total of 1,161,174 stock options were granted in 1995 to key executives participating in SOUTHERN's Executive
Stock Plan.
19 Based on the Black-Scholes option valuation model. The actual value, if any, an executive officer may realize
ultimately depends on the market value of SOUTHERN's common stock at a future date. There is no assurance that the
value realized will be at or near the value estimated by the Black-Scholes model. Assumptions used to calculate
this value: price volatility - 16.323%; risk-free rate of return -6.28%; dividend yield - 5.64%; and time to
exercise - ten years.
26
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGGREGATED STOCK OPTION EXERCISES IN 1995 AND YEAR-END OPTION VALUES
Aggregated Stock Option Exercises. The following table sets forth
information concerning options exercised during the year ending December 31,
1995, by the named executive officers and value of unexercised options held by
them as of December 31, 1995. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH
are incorporated by reference to page numbers III-21 and III-22 in the SOUTHERN
system's combined Form 10-K for the year ended December 31, 1995. Aggregated
Stock Option Exercises in 1995 and Year-End Option Values information for
SOUTHERN is incorporated by reference to "Aggregated Stock Option Exercises in
1995 and Year-End Option Values" under ELECTION OF DIRECTORS in SOUTHERN's
definitive Proxy Statement relating to 1996 annual meeting of stockholders.
Value of
Number of Unexercised
Unexercised In-the-Money
Options at Options at
Fiscal Fiscal
Year-End (#) Year-End($)20
Shares Acquired Value Exercisable/ Exercisable/
Name on Exercise (#) Realized($)21 Unexercisable Unexercisable
- --------------------------------------------------------------------------------------------------------------
SCS
<S> <C> <C> <C> <C>
A. W. Dahlberg - - 83,184/108,379 635,073/450,394
Paul J. DeNicola - - 30,918/58,398 210,228/247,326
Bill M. Guthrie - - 59,311/40,314 547,143/225,948
David M. Ratcliffe - - 30,092/31,597 253,341/131,173
W. L. Westbrook 12,489 81,332 0/26,075 0/106,668
SEI
Thomas G. Boren 8,096 49,706 6,737/28,360 30,397/119,706
Raymond D. Hill - - 0/4,221 0/12,663
Richard J. Pershing - - - -
Charles W. Whitney - - - -
S. Marce Fuller - - - -
Southern Communications
Robert G. Dawson - - 2,390/2,390 8,141/8,141
See footnotes on the next page.
27
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AGGREGATED STOCK OPTION EXERCISES IN 1995 AND YEAR-END OPTION VALUES
Value of
Number of Unexercised
Unexercised In-the-Money
Options at Options at
Fiscal Fiscal
Year-End (#) Year-End($)20
Shares Acquired Value Exercisable/ Exercisable/
Name on Exercise (#) Realized($)21 Unexercisable Unexercisable
- --------------------------------------------------------------------------------------------------------------
Southern Development
<S> <C> <C> <C> <C>
J. Kevin Fletcher - - 0/4,023 0/12,069
Tommy R. Kellogg - - 0/2,574 0/7,722
SOUTHERN NUCLEAR
William G. Hairston, III 15,253 95,787 5,891/35,574 20,066/148,978
Jack D. Woodard - - 5,094/17,890 21,835/70,747
James H. Miller, III - - 1,907/14,663 10,965/59,725
Charles K. McCoy - - 0/7,159 0/21,477
J. Thomas Beckham, Jr. - - 0/7,159 0/21,477
20 This represents the excess of the fair market value as of December 31, 1995, of the option shares over exercise
price of the options. One column reports the "value" of options that are vested and therefore could be exercised;
the other the "value" of options that are not vested and therefore could not be
exercised as of December 31, 1995.
21 The "Value Realized" is ordinary income, before taxes, and represents the
amount equal to the excess of the fair market value of the shares at the time of
exercise over the exercise price.
28
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LONG-TERM INCENTIVE PLANS - AWARDS IN 1995
Long-Term Incentive Awards. The following table sets forth the
long-term incentive plan awards made to the named executive officers for the
performance period January 1, 1995 through December 31, 1998. ALABAMA, GEORGIA,
GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers
III-23 and III-24 in the SOUTHERN system's combined Form 10-K for the year ended
December 31, 1995. Long-Term Incentive Plans- Awards information for SOUTHERN is
incorporated by reference to "Aggregated Stock Option Exercises in 1995 and
Year-End Option Values" under ELECTION OF DIRECTORS in SOUTHERN's definitive
Proxy Statement relating to the 1996 annual meeting of stockholders.
Estimated Future Payouts under
Non-Stock Price-Based Plans
Number Performance or
of Other Period
Units Until Maturation Threshold Target Maximum
Name (#)22 or Payout ($)23 ($)23 ($)23
- --------------------------------------------------------------------------------------------------------------------------
SCS
<S> <C> <C> <C> <C> <C>
A. W. Dahlberg 481,385 4 years 240,963 481,385 962,770
Paul J. DeNicola 266,526 4 years 133,263 266,526 533,052
Bill M. Guthrie 153,000 4 years 76,500 153,000 306,000
David M. Ratcliffe 129,576 4 years 64,788 129,576 259,152
W. L. Westbrook 106,310 4 years 53,155 106,310 212,620
SEI
Thomas G. Boren 1,500 4 years - - -
Richard J. Pershing 750 4 years - - -
Raymond D. Hill 750 4 years - - -
Charles W. Whitney - - - - -
S. Marce Fuller 400 4 years - - -
Southern Communications
Robert G. Dawson - - - - -
See footnotes on the next page.
29
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LONG-TERM INCENTIVE PLANS - AWARDS IN 1995
Estimated Future Payouts under
Non-Stock Price-Based Plans
Number Performance or
of Other Period
Units Until Maturation Threshold Target Maximum
Name (#)22 or Payout ($)23 ($)24 ($)24
- --------------------------------------------------------------------------------------------------------------------------
Southern Development
<S> <C> <C> <C> <C> <C>
J. Kevin Fletcher 37,897 4 years 18,949 37,897 75,794
Tommy R. Kellogg 18,233 4 years 9,116 18,233 36,466
SOUTHERN NUCLEAR
William G. Hairston, III 160,560 4 years 80,325 160,650 321,300
Jack D. Woodard 78,797 4 years 39,399 78,797 157,594
James H. Miller, III 78,797 4 years 39,399 78,797 157,594
Charles K. McCoy 52,529 4 years 26,265 52,529 105,058
J. Thomas Beckham, Jr. 52,529 4 years 26,265 52,529 105,058
22 A performance unit is a method of assigning a dollar value to a performance award
opportunity. The actual number of units granted to a named executive officers (except
those employees of SEI who do not participate in this plan) is based on an award percentage
of an individual's base salary range mid-point with each unit valued at $1.00. For
SEI, the number of units awarded, each valued at $100, is determined by the
board of directors of SEI. The number of units payable at the end of the four
year performance period is adjusted annually by a performance index based on the
return on common equity of SOUTHERN and the performance of SEI's investment
projects. At the end of the four-year performance period, the units, as
adjusted, are payable in cash unless the participant elects, 12 months in
advance of the end of the period, to defer receipt of the award made. No awards
are paid unless the participant remains employed by SOUTHERN through the end of
the performance period.
23 The threshold, target, and maximum value of a unit is $0.50, $1.00, and $2.00,
respectively, and can vary based on SOUTHERN's return on common equity relative to a
selected group of electric and gas utilities in the Southeastern United States. If certain
minimum performance relative to the selected group is not achieved, there will be no payout;
nor is there a payout if the current earnings of SOUTHERN are not sufficient to fund the
dividend rate paid in the last calendar year. All awards are payable in cash at the end of the
performance period.
30
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
(b) Stock Ownership. The following tables show the number of shares of
SOUTHERN common stock and preferred stock owned by the directors, nominees and
executive officers as of December 31, 1995. It is based on information furnished
to SOUTHERN by the directors, nominees and executive officers. The shares owned
by all directors, nominees and executive officers of each company as a group
constitute less than one percent of the total number of shares of the respective
classes outstanding on December 31, 1995. SOUTHERN is incorporated by reference
to "Stock Ownership" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy
Statement relating to the 1996 annual meeting of stockholders. ALABAMA, GEORGIA,
GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers
III-30 through III-35 in the SOUTHERN system's combined Form 10-K for the year
ended December 31, 1995.
<TABLE>
<CAPTION>
Name of Directors
or Nominees and Number of Shares
Executive Officers Title of Class Beneficially Owned (1)(2)
- ------------------ -------------- ------------------
SCS
<S> <C> <C>
A. W. Dahlberg SOUTHERN Common 139,108
Paul J. DeNicola SOUTHERN Common 62,502
H. Allen Franklin SOUTHERN Common 86,620
Elmer B. Harris SOUTHERN Common 138,012
Kerry E. Adams SOUTHERN Common 20,387
GEORGIA Preferred 200
Thomas A. Fanning SOUTHERN Common 4,870
Bill M. Guthrie SOUTHERN Common 110,654
William K. Newman SOUTHERN Common 16,788
W. L. Westbrook SOUTHERN Common 52,192
David M. Ratcliffe SOUTHERN Common 9,424
The directors, nominees
and executive officers
of SCS as a Group SOUTHERN Common 640,557 shares
GEORGIA Preferred 200 shares
SEGCO
Robert L. Boyer SOUTHERN Common 35,884
H. Allen Franklin SOUTHERN Common 86,620
Bill M. Guthrie SOUTHERN Common 110,654
Elmer B. Harris SOUTHERN Common 138,012
Robert H. Haubein, Jr. SOUTHERN Common 18,179
31
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
Name of Directors
or Nominees and Number of Shares
Executive Officers Title of Class Beneficially Owned (1)(2)
- ------------------ -------------- ------------------
SEGCO (continued)
<S> <C> <C>
William B. Hutchins, III SOUTHERN Common 29,071
Warren Y. Jobe SOUTHERN Common 40,766
GEORGIA Preferred 403
Charles D. McCrary SOUTHERN Common 16,145
Earl B. Parsons, Jr. SOUTHERN Common 10,112
The directors, nominees
and executive officers
of SEGCO as a Group SOUTHERN Common 485,443 shares
GEORGIA Preferred 403 shares
SEI
Kerry E. Adams SOUTHERN Common 20,387
GEORGIA Preferred 200
Thomas G. Boren SOUTHERN Common 16,723
Travis J. Bowden SOUTHERN Common 65,518
A. W. Dahlberg SOUTHERN Common 139,108
Paul J. DeNicola SOUTHERN Common 62,502
H. Allen Franklin SOUTHERN Common 86,620
W. L. Westbrook SOUTHERN Common 52,192
S. Marce Fuller SOUTHERN Common 2,298
Raymond D. Hill SOUTHERN Common 705
Richard J. Pershing SOUTHERN Common 17,729
Charles W. Whitney SOUTHERN Common 6,694
The directors, nominees
and executive officers
of SEI as a Group SOUTHERN Common 504,382 shares
GEORGIA Preferred 200 shares
</TABLE>
32
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
Name of Directors
or Nominees and Number of Shares
Executive Officers Title of Class Beneficially Owned (1)(2)
- ------------------ -------------- ------------------
Southern Communications
<S> <C> <C>
Robert S. Beason SOUTHERN Common 8,851
Wayne T. Dahlke SOUTHERN Common 27,931
Robert G. Dawson SOUTHERN Common 17,963
Paul J. DeNicola SOUTHERN Common 62,502
Dwight H. Evans SOUTHERN Common 30,247
Thomas A. Fanning SOUTHERN Common 4,870
John E. Hodges, Jr. SOUTHERN Common 28,067
William B. Hutchins, III SOUTHERN Common 29,071
David M. Ratcliffe SOUTHERN Common 9,424
W. L. Westbrook SOUTHERN Common 52,192
The directors, nominees
and executive officers
of Southern Communications
as a Group SOUTHERN Common 271,119 shares
Southern Development
William P. Bowers SOUTHERN Common 4,454
Paul J. DeNicola SOUTHERN Common 62,502
Dwight E. Evans SOUTHERN Common 30,247
GEORGIA Preferred 300
Thomas A. Fanning SOUTHERN Common 4,870
J. Kevin Fletcher SOUTHERN Common 9,747
Michael L. Scott SOUTHERN Common 6,771
W. L. Westbrook SOUTHERN Common 52,192
Tommy R. Kellogg SOUTHERN Common 4,661
33
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
Name of Directors
or Nominees and Number of Shares
Executive Officers Title of Class Beneficially Owned (1)(2)
- ------------------ -------------- ------------------
Southern Development (continued)
<S> <C> <C>
The directors, nominees
and executive officers
of Southern Development
as a Group SOUTHERN Common 175,444 shares
GEORGIA Preferred 300 shares
SOUTHERN NUCLEAR
A. W. Dahlberg SOUTHERN Common 139,108
Paul J. DeNicola SOUTHERN Common 62,502
H. Allen Franklin SOUTHERN Common 86,620
William G. Hairston, III SOUTHERN Common 22,875
Elmer B. Harris SOUTHERN Common 138,012
J. Thomas Beckham, Jr. SOUTHERN Common 63,610
Charles K. McCoy SOUTHERN Common 3,249
James H. Miller, III SOUTHERN Common 2,579
ALABAMA Preferred 40
Jack D. Woodard SOUTHERN Common 26,495
The directors, nominees
and executive officers of
SOUTHERN NUCLEAR
as a Group SOUTHERN Common 564,173 shares
ALABAMA Preferred 40 shares
Notes to Item 6, Part III(b):
(1) As used in these tables, "beneficial ownership" means the sole or shared
power to vote, or to direct the voting of, a security and/or investment
power with respect to a security (i.e., the power to dispose of, or to
direct the disposition of, a security).
(2) The shares shown include shares of common stock of which certain directors and officers have the right to acquire
beneficial ownership within 60 days pursuant to the Executive Stock Option Plan, as follows: Mr. Boren, 6,737
shares; Mr. Bowden, 37,205 shares; Mr. Dahlberg, 83,184 shares; Mr. Dahlke, 8,317 shares; Mr. Dawson, 2,390 shares; Mr.
DeNicola, 30,918 shares; Mr. Evans, 12,564 shares; Mr. Franklin, 64,202 shares; Mr. Guthrie, 59,311 shares; Mr. Hairston,
5,891 shares; Mr. Harris, 90,131 shares; Mr. Hodges, 7,450 shares; Mr. Hutchins, 9,074 shares; Mr. Miller, 1,907 shares; Mr.
Newman, 2,356 shares; Mr. Ratcliffe, 30,092 shares; and Mr. Woodard, 5,094 shares. Also included are shares of SOUTHERN
common stock held by the spouse of the Mr. Harris, 310 shares.
34
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
(c) Contracts and transactions with system companies.
ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are incorporated by
reference to page numbers III-36 and III-37 in the SOUTHERN system's
combined Form 10-K for the year ended December 31, 1995.
(d) Indebtedness to system companies.
None.
(e) Participation in bonus and profit sharing arrangements and other
benefits.
SOUTHERN is incorporated by reference to "Executive Compensation" under
ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to
the 1996 annual meeting of stockholders.
(f) Rights to indemnity.
Incorporated by reference are the by-laws, for the companies of the
SOUTHERN system, contained herein as Exhibits.
35
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS.
(1) Expenditures, disbursements or payments, directly or indirectly, in
money, goods or services, to or for the account of any political party,
candidate for public office or holder of such office, or any committee or agent
thereof.
<TABLE>
<CAPTION>
Accounts Charged,
if any, per Books
of Disbursing
Name of Company Name of Recipient or Beneficiary Purpose Company Amount($)
- --------------- -------------------------------- ------- ------- ---------
<S> <C> <C> <C> <C>
SOUTHERN The 1995 Republican Senate-House Dinner
Trust-Building Fund Donation 426 40,000
Majority Anniversary Dinner-Building Fund Donation 426 20,000
</TABLE>
ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH have established
political action committees and have incurred certain costs in the
administration of these committees in accordance with the provisions of the
Federal Election Campaign Act and the Public Utility Holding Company Act.
(2) Expenditures, disbursements or payments, directly or indirectly, in
money, goods or services, to or for the account of any citizens group
or public relations counsel.
The information called for by this item was compiled, and memoranda
from each company in the system were received and are being preserved by
SOUTHERN, in accordance with the instructions to this item.
<TABLE>
<CAPTION>
Accounts Charged,
if any, per Books
of Disbursing
Name of Company Name of Recipient or Beneficiary Purpose Company Amount($)
- --------------- -------------------------------- ------- ------- ---------
<S> <C> <C> <C> <C>
SOUTHERN Center for Energy and Economic
Development Dues 930 100,000
Coalition for Change Donation 426 25,000
Edison Electric Institute Dues 930 3,600
Edison Illuminating Dues 930 100
Global Climate Coalition Donation 426 50,000
National Policy Forum Donation 426 50,000
Smithsonian Tropical Research Donation 426 200,000
Southeastern Legal Foundation Donation 426 6,500
ALABAMA Alabama Alliance of Business & Industry Dues 426 2,695
Business Council of Alabama Dues & Support 930,793,426 1,112,240*
Cahaba River Society Dues & Support 793,426 1,300
Nature Conservancy Dues & Support 921,793,426 16,001
Nuclear Energy Institute Dues & Support 426,524,
921,930 367,190
Public Affairs Research Council of Alabama Dues & Support 930,426 10,520
GEORGIA Central Atlanta Progress, Inc. Dues 930 23,155
Council on Economic Education Dues N/A 21,660**
Georgia Conservancy Support N/A 25,000**
Georgia Council for International Visitors Dues 930 2,500
Midtown Alliance Dues 930 8,400
Nature Conservancy Support N/A 33,333**
Nuclear Energy Institute Dues 524 & 426 415,161***
* This amount includes an accrual of $1,000,000.
** Georgia Power Foundation.
*** Excludes dues billed to joint owners of Plants Hatch and Vogtle.
</TABLE>
36
<PAGE>
<TABLE>
<CAPTION>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS. (Continued)
Accounts Charged,
if any, per Books
of Disbursing
Name of Company Name of Recipient or Beneficiary Purpose Company Amount($)
- --------------- -------------------------------- ------- ------- ---------
<S> <C> <C> <C> <C>
GULF Associated Industries of Florida Dues 930 4,000
Coalition for Affordable Power Support 426 10,000
Economic Development Council -
East Jackson County Dues 930 200
Economic Development Council -
Okaloosa County Dues 930 1,000
Economic Development Council -
Walton County Dues & Support 930,426 1,750
Economic Development Council -
Washington County Dues 930 1,000
Florida Economic Development Council Dues 930 640
Florida Taxwatch, Inc. Dues 426 10,000
Tampa Electric Company -
Education on Wheeling Project Support 426 30,000
T.E.A.M. Santa Rosa - Council of
Economic Activity Dues 930 1,000
MISSISSIPPI American National Standards Institute Dues 930 1,780
Business and Industry Dues 930 1,375
Jackson County Area Commerce Dues 930 1,000
Jones County Economic Development Dues 930 2,500
Mississippi Association of Broadcasters Dues 930 1,500
Mississippi Business Roundtable Dues 930 5,000
Mississippi Downtown Development Dues 930 500
Mississippi Gulf Coast Chamber
of Commerce Dues 930 3,543
Mississippi Gulf Coast Economic
Development Council Dues 930 1,125
Mississippi Manufacturers Association Dues 930 1,615
Mississippi Wildlife Federation Dues 930 1,000
Retail Association of Mississippi Dues 930 1,600
The Nature Conservancy Dues 930 5,000
The Partnership Dues 930 6,000
SAVANNAH American Economic Development Dues 930 280
Association County Commissioners
of Georgia Dues 930 1,000
Committee for Economic Development Support 426 1,000
Economic Opportunity Authority Support 426 150
Georgia Conservancy Support & Dues 426,930 2,000
Georgia Council for Economic
Education Support 426 2,000
Georgia Economic Developers Association Dues 930 340
Georgia Electrification Council Dues 930 3,200
Savannah Development and Renewal
Authority Support 426 100
The Nature Conservancy Support 426 15,000
37
</TABLE>
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS.
PART I.
<TABLE>
<CAPTION>
In Effect
on Dec. 31
Transactions Serving Company Receiving Company Compensation Contract (Yes or No)
(1) (2) (3) (4) (5) (6)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
(Note) (Note) SEI (Note) (Note) Yes
(Note) (Note) Southern Communications (Note) (Note) Yes
(Note) (Note) Southern Development (Note) (Note) Yes
Sublease of railcars ALABAMA GEORGIA $204,769 Yes
Sublease of railcars GEORGIA ALABAMA $222,105 Yes
Sublease of railcars GEORGIA SAVANNAH $121,137 Yes
Sublease of railcars MISSISSIPPI ALABAMA $220,080 Yes
Sublease of railcars MISSISSIPPI SAVANNAH $8,933 Yes
Note:
SEI, Southern Communications, and Southern Development have agreements with SCS,
ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH pursuant to which SEI, Southern
Communications and Southern Development reimburse each of such companies for the
full cost of services, personnel and facilities provided to SEI, Southern
Communications and Southern Development.
Pursuant to such agreements, during 1995 the total reimbursements to SCS,
ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH from SEI were $10,715,000;
$1,677,000; $3,401,000; $17,000; $76,000 and $9,000, respectively; from Southern
Communications were $3,471,000; $2,186,000; $1,607,000; $905,000; $608,000; and
$8,000, respectively; and from Southern Development were $6,553,000; $476,000;
$2,798,000; $57,000; $59,000; and $0, respectively.
</TABLE>
Part II.
None.
Part III.
SAVANNAH - LCG Associates, Inc. - Pension Advisors - $40,000 per year.
38
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
Key terms: FUCO means Foreign Utility Company
FUCO-S means a subsidiary of a FUCO
EWG means Exempt Wholesale Generator
PP means Project Parent
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG, PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
GEN TRAN DIST
-------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
1. Southern Electric Bahamas PP N/A N/A N/A SEI NEWCO 2, Inc. 100%
Holdings, Ltd.
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
2. Southern Electric Bahamas, Ltd. PP N/A N/A N/A Southern Electric
Atlanta, GA Bahamas Holdings,
900 Ashwood Parkway, Suite 500 Ltd. 100%
Atlanta, GA 30338
3. Freeport Power Company, Ltd. FUCO Note Note Note Southern Electric
Freeport, Grand Bahamas, Bahamas (1) (2) (3) Bahamas, Ltd. 50%
Port Authority Building Third Party 50%
P.O. Box F-40888
Freeport, Grand Bahamas, Bahamas
4. SEI Operadora del Argentina, S.A. FUCO N/A N/A N/A Southern Electric
Buenos Aires, Argentina International, Inc. 99.99%
LN Alem 712 - Piso 7 SEI Holdings, Inc. .01%
(1001) Buenos Aires, Argentina
5. SEI Holdings, Inc. PP N/A N/A N/A The Southern 100%
Atlanta, GA Company
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
6. Asociados de Electricidad, S.A. PP N/A N/A N/A SEI Holdings, Inc. 99.99%
Buenos Aires, Argentina Third Party .01%
LN Alem 712 - Piso 7
(1001) Buenos Aires, Argentina
7. SEI y Asociados de Argentina, S.A. PP N/A N/A N/A SEI Holdings, Inc. 80%
Buenos Aires, Argentina Asociados de
LN Alem 712 - Piso 7 Electricidad, S.A. 14%
(1001) Buenos Aires, Argentina Third Party 6%
8. Hidroelectrica Alicura, S.A. FUCO Note N/A N/A SEI y Asociados de
Buenos Aires, Argentina (1) Argentina, S.A.
LN Alem 712 - Piso 7 Third Party 59%
(1001) Buenos Aires, Argentina 41%
9. SEI Holdings III, Inc. PP N/A N/A N/A Merged with SEI
Atlanta, GA NEWCO 2, Inc.
900 Ashwood Parkway, Suite 500 12/31/95
Atlanta, GA 30338
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
39
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, TRANSMISSION, OWNERSHIP % OWNED
FUCO-S DISTRIBUTION
EWG,PP
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
GEN TRAN DIST
-------- --------- --------
<C> <C>
<S> <C> <C> <C> <C> <C> <C>
10. SEI Chile, S.A. PP N/A N/A N/A SEI NEWCO 2, Inc. 100%
Apoquindo 3721
Oficina 114
Edificio "Torre Las Condes"
Las Condes, Chile
11. Inversiones SEI Chile Limitada PP N/A N/A N/A SEI Chile, S.A. 99%
Apoquindo 3721 SEI Holdings, Inc. 1%
Oficina 114
Edificio "Torre Las Condes"
Las Condes, Chile
12. Electrica SEI Chile Limitada PP N/A N/A N/A SEI Chile, S.A. 97.05%
Apoquindo 3721 SEI Holdings, Inc. 2.95%
Oficina 114
Edificio "Torre Las Condes"
Las Condes, Chile
13. Empresa Electrica del Norte Grande, S.A. FUCO Note Note N/A Inversiones SEI
Antofagasta, Chile (3) (2) Chile Ltda 26.63%
Avenida Grecia 750 Electrica SEI
Casilla 1290 Chile Ltda 38.35%
Antofagasta, Chile Third Party 35.02%
14. Sitranor S. A. FUCO-S N/A N/A N/A Empresa Electric a
Antofagasta, Chile del
Avenida Grecia 750 Norte Grande, SA 60%
Casilla 1290 Third Party 40%
Antofagasta, Chile
15. Energia del Pacifico PP N/A N/A N/A SEI Chile, S.A. 99.9%
Apoquindo 3721 Inversiones SEI
Oficina 114 Chile Limitada .1%
Edificio "Torre Las Condes"
Las Condes, Chile
16. Energia de Nuevo Leon, SA de CV FUCO N/A N/A N/A The Southern
Atlanta, GA Company 33.33%
900 Ashwood Parkway, Suite 500 Third Party 66.66%
Atlanta, GA 30338
17. SEI Europe Inc. PP N/A N/A N/A SEI NEWCO 1, Inc. 100%
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
18. Southern Investment UK Holding, Ltd PP N/A N/A N/A SEI Europe, Inc. 100%
31 Curzon Street
London, WIY 7AE
England
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
40
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG,PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
GEN TRAN DIST
<S> <C> <C> <C> <C> <C> <C>
19. Southern Investment UK, plc PP N/A N/A N/A Southern
31 Curzon Street Investment UK
London, WIY 7AE Holding, Ltd. 100%
England
20. South West Electricity, plc FUCO Note Note Note Southern
800 Park Avenue (1) (1) (1) Investment UK, plc
Aztec West 100%
Almondsbury, Bristol BS12 4SE
21. South Western Property Management Services FUCO-S N/A N/A N/A South Western 100%
(Inactive) Electricity, plc
800 Park Avenue
Aztec West
Almondsbury, Bristol BS12 4SE
22. SWEB Finance Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
23. SWEB Soft Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
24. SWEB Telecom Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
25. SWEB Gas Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
26. South Western Energy Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
27. SWEB Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
41
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG,PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
GEN TRAN DIST
-------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
28. SWEB International Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
29. SWEB Natural Gas Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
30. South Western Natural Gas Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
31. Western Natural Gas Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
32. SWEB Retail Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
33. Dressadmire Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
34. Escortloyal Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
35. Insuredress Limited (Inactive) FUCO-S N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
36. REC Collect Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 25.0%
Aztec West
Almondsbury, Bristol BS12 4SE
37. South Western Power Limited FUCO-S Note N/A N/A South Western
800 Park Avenue (1) Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
42
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG,PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
GEN TRAN DIST
-------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
38. South Western Power Investments Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Power Limited 100%
Aztec West
Almondsbury, Bristol BS12 4SE
39. Bioelectrica SpA FUCO-S N/A N/A N/A South Western
Andrea Pisano n. 120 Power Investments
Pisa, Italy Limited 25.0%
40. Winterton Power Limited FUCO-S Note N/A N/A South Western
800 Park Avenue (1) Power Investments
Aztec West Limited 25.0%
Almondsbury, Bristol BS12 4SE
41. Teeside Power Limited FUCO-S Note N/A N/A South Western 7.7%
800 Park Avenue (1) Power Investments
Aztec West Limited
Almondsbury, Bristol BS12 4SE
42. Wind Resources Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Power Investments
Aztec West Limited 45.0%
Almondsbury, Bristol BS12 4SE
43. Coal Clough Limited FUCO-S Note N/A N/A Wind Resources
800 Park Avenue (1) Limited 100%
Aztec West
Almondsbury, Bristol BS12 4SE
44. Carland Cross Limited FUCO-S Note N/A N/A Wind Resources
800 Park Avenue (1) Limited 100%
Aztec West
Almondsbury, Bristol BS12 4SE
45. SWEB Property Investments Ltd FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
46. SWEB Property Developments Ltd FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
47. Temple Back Developments Ltd FUCO-S N/A N/A N/A SWEB Property
800 Park Avenue Developments Ltd 49.0%
Aztec West
Almondsbury, Bristol BS12 4SE
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
43
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- --------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG,PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- --------------------- -----------
GEN TRAN DIST
<S> <C> <C> <C> <C> <C> <C>
48. Weston Super Mare Developments Limited FUCO-S N/A N/A N/A SWEB Property
800 Park Avenue Developments Ltd 100%
Aztec West
Almondsbury, Bristol BS12 4SE
49. SWEB Investments Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
50. Midlands Enterprise Fund FUCO-S N/A N/A N/A SWEB Investments
800 Park Avenue Limited 26.8%
Aztec West
Almondsbury, Bristol BS12 4SE
51. Croeso Systems Development Ltd FUCO-S N/A N/A N/A SWEB Investments
800 Park Avenue Limited
Aztec West 50.0%
Almondsbury, Bristol BS12 4SE
52. Eurobell (South West) Holding Ltd FUCO-S N/A N/A N/A SWEB Investments
800 Park Avenue Limited
Aztec West 30.0%
Almondsbury, Bristol BS12 4SE
53. Eurobell (South West) Limited FUCO-S N/A N/A N/A Eurobell (South
800 Park Avenue West) Holding
Aztec West Limited 100%
Almondsbury, Bristol BS12 4SE
54. Eurobell (South West) Communications Limited FUCO-S N/A N/A N/A Eurobell (South
800 Park Avenue West) Holding
Aztec West Limited 100%
Almondsbury, Bristol BS12 4SE
55. South Western Electricity (Connect) Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
56. SWEB Servicing Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity
Aztec West (Connect) Limited 100%
Almondsbury, Bristol BS12 4SE
57. South Western Helicopters Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
44
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG,PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- -------------------- -----------
GEN TRAN DIST
<S> <C> <C> <C> <C> <C> <C>
58. Concorde House Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
59. Western Gas Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 75%
Aztec West
Almondsbury, Bristol BS12 4SE
60. SWEB Insurance Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
61. AZTEC Insurance Ltd FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
62. SWEB Pension Trustee Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
63. South Western Electricity Share Scheme FUCO-S N/A N/A N/A South Western
Trustees Limited Electricity, plc 100%
800 Park Avenue
Aztec West
Almondsbury, Bristol BS12 4SE
64. Dreamplayer Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
65. Dreamphoto Limited FUCO-S N/A N/A N/A South Western
800 Park Avenue Electricity, plc 100%
Aztec West
Almondsbury, Bristol BS12 4SE
66. Southern Energy Investments Australia Pty, PP N/A N/A N/A Southern Electric
Limited International-Europe,
Arthur Robinson & Heddericks Inc. 100%
Collins Street
Melbourne, Victoria
Australia 3000
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
45
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- --------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG,PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- --------------------- -----------
GEN TRAN DIST
-------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
67. Solaris Holding Company Pty, Limited PP N/A N/A N/A Southern Energy
Arthur Robinson & Heddericks Investments
Collins Street Australia Pty, Ltd 90%
Melbourne, Victoria Third Party 10%
Australia 3000
68. Tesro Holding, B.V. PP N/A N/A N/A SEI Europe, Inc. 100%
Amsterdam, The Netherlands
Hoekenrode 6-8
1102 BR Amsterdam
The Netherlands
69. SEI Bahamas Argentina II, Inc. PP N/A N/A N/A Merged with SEI
Atlanta, GA Europe, Inc.
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
70. Southern Electric, Inc. EWG N/A N/A N/A SEI Holdings, Inc. 100%
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
71. SEI Bahamas Argentina I, Inc. PP N/A N/A N/A Merged with
Atlanta, GA Southern Electric,
900 Ashwood Parkway, Suite 500 Inc. 12/31/95
Atlanta, GA 30338
72. SEI Inversora, S.A. PP N/A N/A N/A Merged with
Atlanta, GA Southern Electric.
900 Ashwood Parkway, Suite 500 Inc. 12/31/95
Atlanta, GA 30338
73. SEI Holdings VIII, Inc. PP N/A N/A N/A Merged with SEI
Atlanta, GA NEWCO 2, Inc.
900 Ashwood Parkway, Suite 500 12/31/95
Atlanta, GA 30338
74. SEI Beteilligungs GmbH PP N/A N/A N/A SEI NEWCO 2, Inc. 100%
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
75. Southern Electric International Trinidad, EWG N/A N/A N/A SEI NEWCO I, Inc. 100%
Inc. (formerly SEI Holdings IX)
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
46
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- --------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG,PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- --------------------- -----------
GEN TRAN DIST
-------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
76. The Power Generation Company of EWG Note N/A N/A Southern Electric
Trinidad & Tobago, Ltd. (1) International
6A Queens Park West Trinidad, Inc. 39%
Port of Spain, Trinidad, West Indies Third Party 61%
77. SEI Holdings X, Inc. PP N/A N/A N/A Merged with SEI
Atlanta, GA NEWCO 2, Inc.
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
78. Southern Electric Brasil Participacoes, PP N/A N/A N/A SEI NEWCO 2, Inc. 99%
Limitada SEI Holdings, Inc. 1%
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
79. SEI Holdings XI, Inc. PP N/A N/A N/A Merged with SEI
Atlanta, GA NEWCO 2, Inc.
900 Ashwood Parkway, Suite 500 12/31/95
Atlanta, GA 30338
80. Southern Electric Wholesale EWG N/A N/A N/A SEI Holdings, Inc. 100%
Generators, Inc.
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
81. Southern Energy Marketing, Inc. EWG N/A N/A N/A Southern Electric
Atlanta, GA Wholesale
900 Ashwood Parkway, Suite 500 Generators,
Atlanta, GA 30338 Inc. 100%
82. SEI Birchwood, Inc. EWG N/A N/A N/A Southern Electric
Atlanta, GA Wholesale
900 Ashwood Parkway, Suite 500 Generators,
Atlanta, GA 30338 Inc. 95%
Southern Energy
Marketing, Inc. 5%
83. Birchwood Power Partners, L.P. EWG Note N/A N/A SEI Birchwood, Inc.
Atlanta, GA (1) Third Party 50%
900 Ashwood Parkway, Suite 500 50%
Atlanta, GA 30338
84. SEI Hawaiian Cogenerators, Inc. EWG N/A N/A N/A Southern Electric
Atlanta, GA Wholesale
900 Ashwood Parkway, Suite 500 Generators,
Atlanta, GA 30338 Inc. 100%
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
47
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
- -------------------------------------------------- ----------- --------------------------- --------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
FUCO-S TRANSMISSION,
EWG,PP DISTRIBUTION
- -------------------------------------------------- ----------- --------------------------- --------------------- -----------
GEN TRAN DIST
-------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
85. Kalaeloa Partners, L.P. N/A Note N/A N/A SEI Hawaiian
Kapolei, HI (1) Cogenerators, Inc. 33.33%
91-111C Kalaeloa Boulevard Third Party 66.66%
Kapolei, HI 96707
86. SEI NEWCO 1, Inc. PP N/A N/A N/A SEI Holdings, Inc. 100%
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
87. SEI NEWCO 2, Inc. PP N/A N/A N/A SEI NEWCO 1, Inc. 100%
Atlanta, GA
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
- -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
</TABLE>
<TABLE>
<CAPTION>
NOTES
Note 1 - Generating Facilities:
Facilities in Operation
- -------------------------------- ------------------------------ -------- ------------------------ ------------- -----------
Megawatts of Capacity
Percentage
- -------------------------------- ------------------------------ -------- ------------------------ ------------- -----------
Facility Location Units Owned Operated Ownership Type
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
<S> <C> <C> <C> <C> <C> <C>
Alicura Argentina 4 (A) 551 (A) 1,000 55.14% Hydro
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
Edelnor Chile 27 55 86 64.98% Oil
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
Edelnor Chile 2 7 10 64.98% Hydro
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
Freeport Grand Bahamas 5 56 113 50.00% Oil & Gas
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
Kalaeloa Hawaii 1 60 180 33.33% Oil (B)
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
PowerGen Co. Trinidad and Tobago 21 459 1,178 39.00% Gas
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
South Western Electric United Kingdom 8 144 -- 7.70% Gas
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
South Western Electric United Kingdom 13 19 19 100.00% Oil & Gas
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
South Western Electric United Kingdom 3 8 8 38.27% Wind
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
Total Capacity 1,359 2,594
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
</TABLE>
48
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(a)
<TABLE>
<CAPTION>
Facilities Under Development
- -------------------------------- ------------------------------ -------- ------------------------ ------------- -----------
Megawatts of Capacity
Percentage
- -------------------------------- ------------------------------ -------- ------------------------ ------------- -----------
Facility Location Units Owned Operated Ownership Type
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
<S> <C> <C> <C> <C> <C> <C>
Birchwood Virginia 1 110 220 50.00% Coal (B)
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
Edelnor Chile 1 98 150 64.98% Coal
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
Total Capacity 208 370
- -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
(A) Represents megawatts of capacity under a concession agreement expiring in
the year 2023. (B) Cogeneration facility.
Note 2 - Transmission Facilities:
Edelnor (Chile) - approximately 920 kilometers of 220 kV and 23 kV transmission
lines.
Freeport (Grand Bahamas) - approximately 72 kilometers of 69 kV transmission
lines.
Note 3 - Distribution Facilities:
Freeport (Grand Bahamas) - approximately 1,1015 kilometers of 12.5 kV distribution lines
South Western Electric (United Kingdom) - approximately 46,326 kilometers as
follows:
Operating Approximate
Voltage Kilometers
(kVs)
Under 5 18,244
6.6 184
11 22,657
33 3,746
132 1,495
-----
46,326
South Western Electric's distribution system for the Isles of Scilly includes 57
kilometers of 33 kV submarine cable, which connects the islands to the mainland,
and 15 kilometers of 11 kV submarine cable which interconnects the individual
islands.
PART I(b); PART I(c) and PART I(d) are being filed pursuant to Rule 104.
PART II
Exhibits H and I submitted with this filing, are being incorporated by
reference.
PART III is being filed pursuant to Rule 104.
</TABLE>
49
<PAGE>
ITEM 10 - FINANCIAL STATEMENTS AND EXHIBITS
<TABLE>
<CAPTION>
SOUTHERN AND SUBSIDIARY COMPANIES
INDEX TO FINANCIAL STATEMENTS
DECEMBER 31, 1995
Page
Number
<S> <C>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS A-1
FINANCIAL STATEMENTS:
Consolidating Statement of Income for the Year Ended
December 31, 1995 A-2
Consolidating Statement of Cash Flows for the Year Ended
December 31, 1995 A-4
Consolidating Balance Sheet at December 31, 1995 A-6
Consolidating Statement of Capitalization at December 31, 1995 A-10
Consolidating Statement of Retained Earnings for the Year Ended
December 31, 1995 A-13
Consolidating Statement of Paid-in Capital for the Year
Ended December 31, 1995 A-14
Notes to Financial Statements at December 31, 1995 A-15
OTHER FINANCIAL STATEMENTS:
Alabama Property Company (Unaudited; Not consolidated in Parent, ALABAMA) A-16
GEORGIA consolidated with PIEDMONT and GEORGIA CAPITAL A-19
PIEDMONT (Consolidated in Parent, GEORGIA) A-24
GEORGIA CAPITAL (Consolidated in Parent, GEORGIA) A-27
EXHIBITS A-30
SCHEDULES:
Schedules supporting financial statements of ALABAMA, GEORGIA, GULF,
MISSISSIPPI, SAVANNAH and SEGCO are incorporated by reference to those
companies' annual reports on Federal Energy Regulatory Commission Form 1 for the
year ended December 31, 1995, as filed with the Federal Energy Regulatory
Commission.
</TABLE>
A
<PAGE>
ARTHUR ANDERSEN LLP
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To The Southern Company:
We have audited the consolidated balance sheet and
consolidated statement of capitalization of THE SOUTHERN COMPANY (a
Delaware corporation) and its subsidiaries as of December 31, 1995, and
the related consolidated statement of income, retained earnings,
paid-in capital, and cash flows for the year then ended (included in
the 1995 annual report to the stockholders and incorporated by
reference in this Form U5S as Exhibit A-1). These financial statements
are the responsibility of the company's management. Our responsibility
is to express an opinion on these financial statements based on our
audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made
by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for
our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position of The
Southern Company and its subsidiaries as of December 31, 1995, and the
results of their operations and their cash flows for the year then
ended, in conformity with generally accepted accounting principles.
/s/ Arthur Andersen LLP
Atlanta, Georgia
February 21, 1996
A-1
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
OPERATING REVENUES: Consolidated Add (Deduct) SOUTHERN ALABAMA
Subsidiary operating companies--
<S> <C> <C> <C> <C>
Revenues $9,180,027 $ (19,287) $ - $2,897,044
Sales to affiliates - (381,399) - 127,730
SOUTHERN, equity in earnings of subsidiary companies - (1,127,882) 1,127,882 -
Total operating revenues 9,180,027 (1,528,568) 1,127,882 3,024,774
OPERATING EXPENSES:
Operation--
Fuel 2,126,291 (16) - 791,819
Purchased power from non-affiliates 490,508 2,821 - 30,065
Purchased power from affiliates - (385,561) - 112,826
Other 1,625,965 (32,078) 15,715 501,876
Maintenance 683,166 10,192 - 243,218
Depreciation & amortization 903,492 (261) - 303,050
Amortization of deferred Plant Vogtle costs, net 124,454 - - -
Taxes other than income taxes 535,222 994 155 185,620
Federal and state income taxes 804,505 883 - 230,982
Total operating expenses 7,293,603 (403,026) 15,870 2,399,456
OPERATING INCOME 1,886,424 (1,125,542) 1,112,012 625,318
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction 5,071 - - 1,649
Interest income 38,285 (6,963) 9,253 13,768
Other, net (65,346) (10,158) 2,157 (29,027)
Income taxes - other income 35,854 137 - 14,142
INCOME BEFORE INTEREST CHARGES 1,900,288 (1,142,526) 1,123,422 625,850
INTEREST CHARGES:
Interest on long-term debt 557,199 (7,335) - 180,714
Allowance for debt funds used during construction (20,267) - - (7,067)
Interest on interim obligations 62,693 (94) 19,772 16,917
Amortization of debt discount, premium, & expense,
net 43,960 238 - 20,259
Other interest charges 52,712 249 558 27,064
Net interest charges 696,297 (6,942) 20,330 237,887
NET INCOME 1,203,991 (1,135,584) 1,103,092 387,963
Preferred dividends of subsidiary companies 88,257 - - 27,069
NET INCOME AFTER DIVIDENDS ON
PREFERRED STOCK OF SUBSIDIARY COMPANIES 1,115,734 (1,135,584) 1,103,092 360,894
Minority Interest 12,642 (206) - -
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK
AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $1,103,092 $ (1,135,378) $ 1,103,092 $ 360,894
AVERAGE NUMBER OF SHARES OF COMMON STOCK
OUTSTANDING (in thousands) 665,064
EARNINGS PER SHARE OF COMMON STOCK $1.66
CASH DIVIDENDS PAID PER SHARE OF COMMON STOCK $1.22
(Continued on following page)
A-2(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
(Continued)
OPERATING REVENUES: GEORGIA GULF MISSISSIPPI SAVANNAH
Subsidiary operating companies--
<S> <C> <C> <C> <C>
Revenues $4,328,432 $ 600,458 $ 508,862 $ 218,529
Sales to affiliates 76,906 18,619 7,691 7,200
SOUTHERN, equity in earnings of subsidiary companies - - - -
Total operating revenues 4,405,338 619,077 516,553 225,729
OPERATING EXPENSES:
Operation--
Fuel 900,973 185,274 111,071 25,386
Purchased power from non-affiliates 183,009 8,594 6,019 2,139
Purchased power from affiliates 131,740 29,966 57,777 53,252
Other 746,525 113,397 107,296 45,214
Maintenance 292,029 51,917 39,627 13,668
Depreciation & amortization 421,850 55,104 39,224 18,949
Amortization of deferred Plant Vogtle costs, net 124,454 - - -
Taxes other than income taxes 204,675 49,598 42,443 11,465
Federal and state income taxes 449,204 34,065 34,486 17,378
Total operating expenses 3,454,459 527,915 437,943 187,451
OPERATING INCOME 950,879 91,162 78,610 38,278
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction 2,734 36 366 163
Interest income 5,524 2,877 199 164
Other, net (4,922) (1,261) 4,596 (618)
Income taxes - other income 3,022 (121) (1,006) 651
INCOME BEFORE INTEREST CHARGES 957,237 92,693 82,765 38,638
INTEREST CHARGES:
Interest on long-term debt 254,607 23,294 21,898 12,380
Allowance for debt funds used during construction (12,081) (187) (399) (450)
Interest on interim obligations 21,463 2,931 1,141 135
Amortization of debt discount, premium, & expense,
net 15,835 2,014 1,510 448
Other interest charges 20,399 1,674 1,185 406
Net interest charges 300,223 29,726 25,335 12,919
NET INCOME 657,014 62,967 57,430 25,719
Preferred dividends of subsidiary companies 48,152 5,813 4,899 2,324
NET INCOME AFTER DIVIDENDS ON
PREFERRED STOCK OF SUBSIDIARY COMPANIES 608,862 57,154 52,531 23,395
Minority Interest - - - -
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK
AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $ 608,862 $ 57,154 $ 52,531 $ 23,395
(Continued on following page)
A-2(b)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Southern Southern
OPERATING REVENUES: SEGCO SEI SEIH MESH Development Communications
Subsidiary operating companies--
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 2,684 $ - $ 560,808 $ 82,497 $ - $ -
Sales to affiliates 143,253 - - - - -
SOUTHERN, equity in earnings of subsidiary companies - - - - - -
Total operating revenues 145,937 - 560,808 82,497 - -
OPERATING EXPENSES:
Operation--
Fuel 89,255 - 16,226 6,303 - -
Purchased power from non-affiliates - - 257,861 - - -
Purchased power from affiliates - - - - - -
Other 17,207 - 84,719 26,094 - -
Maintenance 13,994 - 18,521 - - -
Depreciation & amortization 7,955 - 46,013 11,608 - -
Amortization of deferred Plant Vogtle costs, net - - - - - -
Taxes other than income taxes 959 - 39,313 - - -
Federal and state income taxes 4,256 - 25,193 8,058 - -
Total operating expenses 133,626 - 487,846 52,063 - -
OPERATING INCOME 12,311 - 72,962 30,434 - -
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction 123 - - - - -
Interest income 167 852 12,381 - 43 20
Other, net 130 (32,286) 25,703 1,076 (8,198) (12,538)
Income taxes - other income 282 10,934 138 - 2,854 4,821
INCOME BEFORE INTEREST CHARGES 13,013 (20,500) 111,184 31,510 (5,301) (7,697)
INTEREST CHARGES:
Interest on long-term debt 4,970 - 48,170 18,501 - -
Allowance for debt funds used during construction (83) - - - - -
Interest on interim obligations - - 428 - - -
Amortization of debt discount, premium, & expense,
net 22 - 3,634 - - -
Other interest charges - - 1,177 - - -
Net interest charges 4,909 - 53,409 18,501 - -
NET INCOME 8,104 (20,500) 57,775 13,009 (5,301) (7,697)
Preferred dividends of subsidiary companies - - - - - -
NET INCOME AFTER DIVIDENDS ON
PREFERRED STOCK OF SUBSIDIARY COMPANIES 8,104 (20,500) 57,775 13,009 (5,301) (7,697)
Minority Interest - - 12,638 210 - -
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK
AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $ 8,104 $ (20,500) $ 45,137 $ 12,799 $ (5,301) $ (7,697)
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 through A-6 inclusive) are an integral part of this
statement.
A-3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C>
Net income $ 1,103,092 $(1,223,635) $1,103,092 $ 387,963
Adjustments to reconcile net income to
net cash provided by operating activities--
Depreciation and amortization 1,133,955 (360) - 371,382
Deferred income taxes and investment tax credits 116,873 (5,501) - 32,627
Allowance for equity funds used during construction (5,071) - - (1,649)
Amortization of deferred Plant Vogtle costs 124,454 - - -
Other, net (85,384) 256,133 (270,693) 33,244
Changes in current assets and liabilities --
Receivables, net (109,075) 273,519 (135,298) (54,209)
Prepayments (60,885) (4,964) 6,062 (30,634)
Fossil fuel stock 38,329 116 - 12,928
Materials & supplies 10,574 (124) - 5,497
Accounts payable (137,849) (83,440) 4,723 (63,656)
Other 186,233 (107,610) 3,276 16,467
NET CASH PROVIDED FROM (USED FOR) OPERATING ACTIVITIES 2,315,246 (895,866) 711,162 709,960
INVESTING ACTIVITIES:
Gross property additions (1,400,768) (987) - (551,781)
Southern Electric business acquisitions (1,416,194) 665 - -
Sales of property 287,213 (71) - -
Other 152,342 472,012 (466,123) (53,321)
NET CASH PROVIDED FROM (USED FOR) INVESTING ACTIVITIES (2,377,407) 471,619 (466,123) (605,102)
FINANCING ACTIVITIES:
Proceeds --
Common stock 276,798 - 276,798 -
Capital contributions - (504,164) - -
First mortgage bonds 375,210 255,210 - -
Other long-term debt 1,805,680 (842,194) - 131,500
Retirements --
Preferred stock (1,000) - - -
First mortgage bonds (538,414) - - -
Other long-term debt (902,477) 117,557 - (132,291)
Interim obligations, net 727,353 398,678 313,563 210,134
Payment of common stock dividends (811,165) 939,443 (811,165) (285,000)
Payment of preferred stock dividends - 88,573 - (27,118)
Special Deposits (156,114) - - -
Miscellaneous (80,679) (44,631) (4,279) (4,143)
NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES 695,192 408,472 (225,083) (106,918)
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 633,031 (15,775) 19,956 (2,060)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 139,309 2,581 944 14,676
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 772,340 $ (13,194) $ 20,900 $ 12,616
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the year for --
Interest (net of amount capitalized) $ 621,502 $ (1,435) $ 17,212 $ 189,268
Income taxes 645,222 12,565 - 172,777
Business acquisitions --
Fair value of assets acquired $ 2,744,950 $ - $ - $ -
Less cash paid for common stock 1,416,194 - - -
Liabilities assumed $ 1,328,756 $ - $ - $ -
(Continued on following page)
A-4(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
GEORGIA GULF MISSISSIPPI SAVANNAH
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C>
Net income $ 657,014 $ 62,967 $ 57,430 $ 25,719
Adjustments to reconcile net income to
net cash provided by operating activities--
Depreciation and amortization 527,310 75,293 51,588 20,535
Deferred income taxes and investment tax credits 37,150 390 (480) 4,359
Allowance for equity funds used during construction (2,734) (36) (366) (163)
Amortization of deferred Plant Vogtle costs 124,454 - - -
Other, net 134 (26,537) 5,704 35
Changes in current assets and liabilities --
Receivables, net (59,370) (12,210) (8,758) (6,241)
Prepayments (36,374) (3,646) 3,376 622
Fossil fuel stock 24,101 (2,189) 1,219 1,481
Materials & supplies 6,660 1,571 2,743 837
Accounts payable 45,882 18,258 17,421 2,213
Other 93,796 (13,910) (2,695) (2,470)
NET CASH PROVIDED FROM (USED FOR) OPERATING ACTIVITIES 1,418,023 99,951 127,182 46,927
INVESTING ACTIVITIES:
Gross property additions (480,449) (63,113) (67,570) (26,503)
Southern Electric business acquisitions - - - -
Sales of property 131,099 - - -
Other (42,579) 4,401 (1,697) 3,198
NET CASH PROVIDED FROM (USED FOR) INVESTING ACTIVITIES (391,929) (58,712) (69,267) (23,305)
FINANCING ACTIVITIES:
Proceeds --
Common stock - - - -
Capital contributions - 58 - -
First mortgage bonds 75,000 - 30,000 15,000
Other long-term debt 504,700 - 10,600 33,500
Retirements --
Preferred stock - (1,000) - -
First mortgage bonds (505,789) (1,750) (1,625) (29,250)
Other long-term debt (541,810) (13,439) (40,699) (23,003)
Interim obligations, net (24,472) 27,000 - 1,500
Payment of common stock dividends (451,500) (46,400) (39,400) (17,600)
Payment of preferred stock dividends (48,419) (5,813) (4,899) (2,324)
Special Deposits - - - -
Miscellaneous (17,413) (117) (568) (2,131)
NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES (1,009,703) (41,461) (46,591) (24,308)
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 16,391 (222) 11,324 (686)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 12,539 902 1,317 1,563
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 28,930 $ 680 $ 12,641 $ 877
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the year for --
Interest (net of amount capitalized) $ 298,482 $ 26,161 $ 23,308 $ 12,775
Income taxes 404,129 38,537 36,908 11,316
Business acquisitions --
Fair value of assets acquired $ - $ - $ - $ -
Less cash paid for common stock - - - -
Liabilities assumed $ - $ - $ - $ -
(Continued on following page)
A-4(b)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
SOUTHERN
SEGCO SCS NUCLEAR SEI
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C>
Net income $ 8,104 $ - $ - $ (20,500)
Adjustments to reconcile net income to
net cash provided by operating activities--
Depreciation and amortization 8,520 17,971 1,714 1,093
Deferred income taxes and investment tax credits (1,311) - - (1,525)
Allowance for equity funds used during construction (123) - - -
Amortization of deferred Plant Vogtle costs - - - -
Other, net 550 30,853 3,444 1,326
Changes in current assets and liabilities --
Receivables, net 1,103 (54,409) (10,498) (8,288)
Prepayments 870 733 418 101
Fossil fuel stock - - - -
Materials & supplies - (223) - -
Accounts payable (6,310) 22,789 1,845 10,226
Other 99 21,922 3,783 19,158
NET CASH PROVIDED FROM (USED FOR) OPERATING ACTIVITIES 11,502 39,636 706 1,591
INVESTING ACTIVITIES:
Gross property additions (4,530) (17,626) (1,281) (600)
Southern Electric business acquisitions - - - (665)
Sales of property - - - 71
Other 310 (521) 69 -
NET CASH PROVIDED FROM (USED FOR) INVESTING ACTIVITIES (4,220) (18,147) (1,212) (1,194)
FINANCING ACTIVITIES:
Proceeds --
Common stock - - - -
Capital contributions - - - 9,006
First mortgage bonds - - - -
Other long-term debt 700 - - -
Retirements --
Preferred stock - - - -
First mortgage bonds - - - -
Other long-term debt (350) (428) - -
Interim obligations, net - (21,160) - -
Payment of common stock dividends (7,463) - - (1,104)
Payment of preferred stock dividends - - - -
Special Deposits - - - -
Miscellaneous - - - -
NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES (7,113) (21,588) - 7,902
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 169 (99) (506) 8,299
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 5 99 3,274 13,535
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 174 $ - $ 2,768 $ 21,834
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the year for --
Interest (net of amount capitalized) $ 4,937 $ 8,302 $ 308 $ -
Income taxes 3,935 - 110 -
Business acquisitions --
Fair value of assets acquired $ - $ - $ - $ -
Less cash paid for common stock - - - -
Liabilities assumed $ - $ - $ - $ -
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 through A-6 inclusive) are an integral part of this
statement.
A-5(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Southern Southern
SEIH MESH Development Communications SERC
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C> <C>
Net income $ 45,137 $ 12,799 $ (5,301) $ (7,697) $ -
Adjustments to reconcile net income to
net cash provided by operating activities--
Depreciation and amortization 46,583 11,608 196 522 -
Deferred income taxes and investment tax credits 26,720 18,880 137 5,427 -
Allowance for equity funds used during construction - - - - -
Amortization of deferred Plant Vogtle costs - - - - -
Other, net (55,465) 210 3,921 (68,243) -
Changes in current assets and liabilities --
Receivables, net (15,712) (8,165) (7,845) (2,628) (66)
Prepayments 3,702 (765) (85) (301) -
Fossil fuel stock 673 - - - -
Materials & supplies (5,881) (402) (104) - -
Accounts payable (18,438) (6,709) 7,203 (89,891) 35
Other 138,119 14,493 2,138 (333) -
NET CASH PROVIDED FROM (USED FOR) OPERATING ACTIVITIES 165,438 41,949 260 (163,144) (31)
INVESTING ACTIVITIES:
Gross property additions (122,989) (11,097) - (52,242) -
Southern Electric business acquisitions (1,416,194) - - - -
Sales of property 156,114 - - - -
Other 130,962 - (5,062) 110,693 -
NET CASH PROVIDED FROM (USED FOR) INVESTING ACTIVITIES (1,252,107) (11,097) (5,062) 58,451 -
FINANCING ACTIVITIES:
Proceeds --
Common stock - - - - -
Capital contributions 389,609 - 2,417 103,074 -
First mortgage bonds - - - - -
Other long-term debt 1,671,826 294,590 - 458 -
Retirements --
Preferred stock - - - - -
First mortgage bonds - - - - -
Other long-term debt (183,014) (85,000) - - -
Interim obligations, net (1,965) (175,925) - - -
Payment of common stock dividends (76,282) (14,694) - - -
Payment of preferred stock dividends - - - - -
Special Deposits (156,114) - - - -
Miscellaneous 2,481 (9,878) - - -
NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES 1,646,541 9,093 2,417 103,532 -
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 559,872 39,945 (2,385) (1,161) (31)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 82,844 1,173 2,558 1,251 48
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 642,716 $ 41,118 $ 173 $ 90 $ 17
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the year for --
Interest (net of amount capitalized) $ 33,772 $ 8,412 $ - $ - $ -
Income taxes (22,050) (13,005) - - -
Business acquisitions --
Fair value of assets acquired $ 2,744,950 $ - $ - $ - $ -
Less cash paid for common stock 1,416,194 - - - -
Liabilities assumed $ 1,328,756 $ - $ - $ - $ -
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 through A-6 inclusive) are an integral part of this
statement.
A-5(b)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
ASSETS Consolidated Add (Deduct) SOUTHERN ALABAMA
UTILITY PLANT:
<S> <C> <C> <C> <C>
Plant in service $ 31,878,166 $ (7,844) $ - $ 10,430,792
Less accumulated provision for depreciation 10,067,081 (197) - 3,838,093
21,811,085 (7,647) - 6,592,699
Nuclear fuel, at amortized cost 225,386 - - 100,537
Construction work in progress 989,808 1,656 - 362,768
Total 23,026,279 (5,991) - 7,056,004
OTHER PROPERTY AND INVESTMENTS:
Investments in and advances to consolidated
subsidiary companies, stated at equity 86,145 (8,999,155) 8,921,227 27,232
Argentine operating concession, being amortized 431,212 - - -
Goodwill 343,897 1 - -
Nuclear decommissioning trusts 200,641 - - 108,368
Miscellaneous 230,958 11,725 8,699 19,156
Total 1,292,853 (8,987,429) 8,929,926 154,756
CURRENT ASSETS:
Cash and cash equivalents 772,340 (13,194) 20,900 12,616
Special Deposits 156,114 (1,758) - -
Receivables--
Customer accounts receivable 1,140,023 (22,067) - 355,833
Affiliated companies - (802,063) 455,817 41,731
Other accounts and notes receivable 260,008 29,107 1,474 28,170
Accumulated provision for uncollectible accounts (37,119) (1) - (1,212)
Refundable income taxes - (52,665) - 2,635
Fossil fuel stock, at average cost 326,669 14,330 - 106,627
Materials and supplies, at average cost 551,546 - - 179,103
Prepayments 265,988 (10,119) 715 116,331
Vacation pay deferred 74,135 - - 29,458
Total 3,509,704 (858,430) 478,906 871,292
DEFERRED CHARGES:
Deferred charges related to income taxes 1,386,116 (19,250) - 436,837
Deferred Plant Vogtle costs 307,638 - - -
Debt expense, being amortized 100,388 34,150 - 7,648
Premium on reacquired debt, being amortized 294,825 - - 89,967
Deferred fuel charges 33,768 - - -
Nuclear decontamination and decommissioning fund 73,419 - - 40,282
Miscellaneous 529,140 (11,955) 4,883 87,574
Total 2,725,294 2,945 4,883 662,308
TOTAL ASSETS $ 30,554,130 $ (9,848,905) $ 9,413,715 $ 8,744,360
(Continued on following page)
A-6(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995
(Stated in Thousands of Dollars)
GEORGIA GULF MISSISSIPPI SAVANNAH
UTILITY PLANT:
<S> <C> <C> <C> <C>
Plant in service $ 14,538,595 $ 1,695,814 $ 1,434,327 $ 715,146
Less accumulated provision for depreciation 4,417,120 658,806 499,308 287,004
10,121,475 1,037,008 935,019 428,142
Nuclear fuel, at amortized cost 124,849 - - -
Construction work in progress 236,715 26,301 41,210 6,707
Total 10,483,039 1,063,309 976,229 434,849
OTHER PROPERTY AND INVESTMENTS:
Investments in and advances to consolidated
subsidiary companies, stated at equity 27,232 - - -
Argentine operating concession, being amortized - - - -
Goodwill - - - -
Nuclear decommissioning trusts 92,273 - - -
Miscellaneous 120,383 740 4,160 1,788
Total 239,888 740 4,160 1,788
CURRENT ASSETS:
Cash and cash equivalents 28,930 680 12,641 877
Special Deposits - - - -
Receivables--
Customer accounts receivable 418,749 85,365 32,307 19,574
Affiliated companies 15,482 802 9,213 614
Other accounts and notes receivable 102,953 3,393 9,438 7,251
Accumulated provision for uncollectible accounts (5,000) (768) (802) (983)
Refundable income taxes - - - -
Fossil fuel stock, at average cost 145,151 37,875 15,666 6,076
Materials and supplies, at average cost 286,804 33,686 22,558 8,239
Prepayments 107,764 12,232 7,584 6,467
Vacation pay deferred 35,543 4,419 4,715 -
Total 1,136,376 177,684 113,320 48,115
DEFERRED CHARGES:
Deferred charges related to income taxes 871,783 29,093 23,384 21,557
Deferred Plant Vogtle costs 307,638 - - -
Debt expense, being amortized 27,227 3,444 1,530 2,754
Premium on reacquired debt, being amortized 174,018 17,015 8,509 5,316
Deferred fuel charges - 33,768 - -
Nuclear decontamination and decommissioning fund 33,137 - - -
Miscellaneous 197,169 16,806 21,821 10,283
Total 1,610,972 100,126 55,244 39,910
TOTAL ASSETS $ 13,470,275 $ 1,341,859 $ 1,148,953 $ 524,662
(Continued on following page)
A-6(b)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995
(Stated in Thousands of Dollars)
SOUTHERN
SEGCO SCS NUCLEAR SEI
UTILITY PLANT:
<S> <C> <C> <C> <C>
Plant in service $ 309,545 $ 228,515 $ 12,585 $ -
Less accumulated provision for depreciation 186,182 121,392 8,477 -
123,363 107,123 4,108 -
Nuclear fuel, at amortized cost - - - -
Construction work in progress 983 17,492 - -
Total 124,346 124,615 4,108 -
OTHER PROPERTY AND INVESTMENTS:
Investments in and advances to consolidated
subsidiary companies, stated at equity - - - -
Argentine operating concession, being amortized - - - -
Goodwill - - - -
Nuclear decommissioning trusts - - - -
Miscellaneous 7 3,401 1,822 3,810
Total 7 3,401 1,822 3,810
CURRENT ASSETS:
Cash and cash equivalents 174 - 2,768 21,834
Special Deposits - - - -
Receivables--
Customer accounts receivable - - - 7,754
Affiliated companies 32,596 133,339 76,032 27,003
Other accounts and notes receivable - 31,606 470 -
Accumulated provision for uncollectible accounts - - - (282)
Refundable income taxes 311 - - -
Fossil fuel stock, at average cost - - - -
Materials and supplies, at average cost - 1,764 - -
Prepayments 201 1,601 929 2,817
Vacation pay deferred - - - -
Total 33,282 168,310 80,199 59,126
DEFERRED CHARGES:
Deferred charges related to income taxes 3,462 - - 13,066
Deferred Plant Vogtle costs - - - -
Debt expense, being amortized 149 1 - -
Premium on reacquired debt, being amortized - - - -
Deferred fuel charges - - - -
Nuclear decontamination and decommissioning fund - - - -
Miscellaneous 955 7,677 22,319 2,312
Total 4,566 7,678 22,319 15,378
TOTAL ASSETS $ 162,201 $ 304,004 $ 108,448 $ 78,314
(Continued on following page)
A-7(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Southern Southern
SEIH MESH Development Communications SERC
UTILITY PLANT:
<S> <C> <C> <C> <C> <C>
Plant in service $ 2,067,348 $ 361,076 $ - $ 92,266 $ 1
Less accumulated provision for depreciation 39,101 11,795 - - -
2,028,247 349,281 - 92,266 1
Nuclear fuel, at amortized cost - - - - -
Construction work in progress 255,398 7,810 - 32,768 -
Total 2,283,645 357,091 - 125,034 1
OTHER PROPERTY AND INVESTMENTS:
Investments in and advances to consolidated
subsidiary companies, stated at equity 109,609 - - - -
Argentine operating concession, being amortized 431,212 - - - -
Goodwill 343,896 - - - -
Nuclear decommissioning trusts - - - - -
Miscellaneous 41,840 - 5,448 7,979 -
Total 926,557 - 5,448 7,979 -
CURRENT ASSETS:
Cash and cash equivalents 642,716 41,118 173 90 17
Special Deposits 157,872 - - - -
Receivables--
Customer accounts receivable 228,239 13,798 - 471 -
Affiliated companies 5,840 - 1,455 2,073 66
Other accounts and notes receivable 38,971 526 6,565 84 -
Accumulated provision for uncollectible accounts (27,916) - (155) - -
Refundable income taxes 49,719 - - - -
Fossil fuel stock, at average cost 944 - - - -
Materials and supplies, at average cost 16,770 2,518 104 - -
Prepayments 17,966 1,107 85 308 -
Vacation pay deferred - - - - -
Total 1,131,121 59,067 8,227 3,026 83
DEFERRED CHARGES:
Deferred charges related to income taxes 6,184 - - - -
Deferred Plant Vogtle costs - - - - -
Debt expense, being amortized 8,623 14,862 - - -
Premium on reacquired debt, being amortized - - - - -
Deferred fuel charges - - - - -
Nuclear decontamination and decommissioning fund - - - - -
Miscellaneous 167,527 - 120 1,649 -
Total 182,334 14,862 120 1,649 -
TOTAL ASSETS $ 4,523,657 $ 431,020 $ 13,795 $ 137,688 $ 84
(Continued on following page)
</TABLE>
A-7(b)
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995
(Stated in Thousands of Dollars)
(Continued)
Intercompany
Eliminations
and Transfers
CAPITALIZATION AND LIABILITIES Consolidated Add (Deduct) SOUTHERN ALABAMA
CAPITALIZATION (see accompanying statements):
<S> <C> <C> <C> <C>
Common stock equity $ 8,772,162 $ (8,976,486) $ 8,772,162 $ 2,690,374
Preferred stock 1,332,203 - - 440,400
Subsidiary obligated mandatorily redeemable preferred securities 100,000 - - -
Long-term debt 8,305,861 (392,833) - 2,374,948
Total 18,510,226 (9,369,319) 8,772,162 5,505,722
MINORITY INTEREST 230,500 (666) - -
CURRENT LIABILITIES:
Amount of debt due within one year 508,572 (191) - 84,682
Notes payable 444,829 (5,890) 6,000 -
Commercial paper 1,224,909 - 612,563 390,016
Accounts payable--
Affiliated companies - (317,902) 11,295 76,294
Other 785,490 4,590 4,008 182,433
Customer deposits 216,644 - - 30,353
Taxes accrued--
Federal and state income 92,684 (63,921) - 13,599
Other 178,807 163 9 18,158
Interest accrued 199,112 (85) 4,707 53,527
Vacation pay accrued 99,678 1,472 - 29,458
Miscellaneous 530,461 1,195 - 70,543
Total 4,281,186 (380,569) 638,582 949,063
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income taxes 4,611,081 (48,987) - 1,191,591
Deferred credits related to income taxes 935,611 - - 386,038
Accumulated deferred investment tax credits 820,127 - - 305,372
Prepaid capacity revenues, net 131,186 - - 131,186
Department of Energy assessments 86,113 - - 36,620
Disallowed Plant Vogtle capacity buyback costs 58,514 - - -
Storm damage reserves 30,777 - - 17,959
Miscellaneous 858,809 (49,364) 2,971 220,809
Total 7,532,218 (98,351) 2,971 2,289,575
TOTAL CAPITALIZATION AND LIABILITIES $ 30,554,130 $ (9,848,905) $ 9,413,715 $ 8,744,360
(Continued on following page)
A-8(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995
(Stated in Thousands of Dollars)
(Continued)
CAPITALIZATION AND LIABILITIES GEORGIA GULF MISSISSIPPI SAVANNAH
CAPITALIZATION (see accompanying statements):
<S> <C> <C> <C> <C>
Common stock equity $ 4,299,012 $ 436,242 $ 374,884 $ 167,812
Preferred stock 692,787 89,602 74,414 35,000
Subsidiary obligated mandatorily redeemable preferred securities 100,000 - - -
Long-term debt 3,315,460 323,376 288,820 153,679
Total 8,407,259 849,220 738,118 356,491
MINORITY INTEREST - - - -
CURRENT LIABILITIES:
Amount of debt due within one year 150,446 31,548 57,229 1,407
Notes payable 178,000 80,500 - 4,000
Commercial paper 222,330 - - -
Accounts payable--
Affiliated companies 72,878 14,447 13,646 5,742
Other 316,278 27,196 37,129 5,620
Customer deposits 53,145 13,195 2,716 5,054
Taxes accrued--
Federal and state income 7,759 - 97 570
Other 96,633 9,547 31,816 1,014
Interest accrued 96,162 5,719 4,701 6,331
Vacation pay accrued 34,233 4,419 4,563 1,916
Miscellaneous 137,184 10,156 8,890 6,735
Total 1,365,048 196,727 160,787 38,389
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income taxes 2,510,458 162,345 129,711 74,152
Deferred credits related to income taxes 410,016 67,481 43,266 24,419
Accumulated deferred investment tax credits 432,184 36,052 29,773 13,934
Prepaid capacity revenues, net - - - -
Department of Energy assessments 49,493 - - -
Disallowed Plant Vogtle capacity buyback costs 58,514 - - -
Storm damage reserves - - 12,018 800
Miscellaneous 237,303 30,034 35,280 16,477
Total 3,697,968 295,912 250,048 129,782
TOTAL CAPITALIZATION AND LIABILITIES $ 13,470,275 $ 1,341,859 $ 1,148,953 $ 524,662
(Continued on following page)
A-8(b)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995
(Stated in Thousands of Dollars)
(Continued)
SOUTHERN
CAPITALIZATION AND LIABILITIES SEGCO SCS NUCLEAR SEI
CAPITALIZATION (see accompanying statements):
<S> <C> <C> <C> <C>
Common stock equity $ 54,465 $ 875 $ 1,624 $ 113
Preferred stock - - - -
Subsidiary obligated mandatorily redeemable preferred securities - - - -
Long-term debt 78,408 63,450 5,000 -
Total 132,873 64,325 6,624 113
MINORITY INTEREST - - - -
CURRENT LIABILITIES:
Amount of debt due within one year - 10,598 - -
Notes payable - 5,890 - -
Commercial paper - - - -
Accounts payable--
Affiliated companies 5,352 42,663 16,653 6,801
Other - 27,336 8,361 13,397
Customer deposits - - - -
Taxes accrued--
Federal and state income 5,963 - 41 -
Other 302 292 343 -
Interest accrued 897 106 75 -
Vacation pay accrued - 16,727 5,390 -
Miscellaneous 186 47,546 10,792 47,202
Total 12,700 151,158 41,655 67,400
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income taxes 9,425 - - -
Deferred credits related to income taxes 4,391 - - -
Accumulated deferred investment tax credits 2,812 - - -
Prepaid capacity revenues, net - - - -
Department of Energy assessments - - - -
Disallowed Plant Vogtle capacity buyback costs - - - -
Storm damage reserves - - - -
Miscellaneous - 88,521 60,169 10,801
Total 16,628 88,521 60,169 10,801
TOTAL CAPITALIZATION AND LIABILITIES $ 162,201 $ 304,004 $ 108,448 $ 78,314
(Continued on following page)
A-9(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995
(Stated in Thousands of Dollars)
(Continued)
Southern Southern
CAPITALIZATION AND LIABILITIES SEIH MESH Development Communications SERC
CAPITALIZATION (see accompanying statements):
<S> <C> <C> <C> <C> <C>
Common stock equity $ 806,507 $ 40,766 $ 4,359 $ 99,448 $ 5
Preferred stock - - - - -
Subsidiary obligated mandatorily redeemable preferred securities - - - - -
Long-term debt 1,792,837 302,466 - 250 -
Total 2,599,344 343,232 4,359 99,698 5
MINORITY INTEREST 230,498 668 - - -
CURRENT LIABILITIES:
Amount of debt due within one year 166,750 5,895 - 208 -
Notes payable 162,254 14,075 - - -
Commercial paper - - - - -
Accounts payable--
Affiliated companies 10,364 29,011 819 11,859 78
Other 135,511 783 6,478 16,369 1
Customer deposits 112,181 - - - -
Taxes accrued--
Federal and state income 125,241 3,335 - - -
Other 19,506 - 46 978 -
Interest accrued 17,083 9,889 - - -
Vacation pay accrued 1,166 - 153 181 -
Miscellaneous 185,156 2,038 1,939 899 -
Total 935,212 65,026 9,435 30,494 79
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income taxes 554,756 22,094 - 5,536 -
Deferred credits related to income taxes - - - - -
Accumulated deferred investment tax credits - - - - -
Prepaid capacity revenues, net - - - - -
Department of Energy assessments - - - - -
Disallowed Plant Vogtle capacity buyback costs - - - - -
Storm damage reserves - - - - -
Miscellaneous 203,847 - 1 1,960 -
Total 758,603 22,094 1 7,496 -
TOTAL CAPITALIZATION AND LIABILITIES $ 4,523,657 $ 431,020 $ 13,795 $ 137,688 $ 84
(Continued on following page)
A-9(b)
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 through A-6 inclusive) are an integral part of this
statement.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
COMMON STOCK EQUITY:
Common stock, par value $5 per share
Authorized -- 1,000,000,000 shares
<S> <C> <C> <C> <C>
Outstanding -- 669,542,914 shares $ 3,347,715 $ - $ 3,347,715 $ -
Common stock of subsidiaries - (699,754) - 224,358
Paid-in capital 1,939,811 (5,153,071) 1,940,823 1,304,645
Premium on preferred stock 1,012 - - 146
Additional minimum liability for -
under-funded pension obligations - 132 - -
Retained earnings 3,483,624 (3,123,793) 3,483,624 1,161,225
Total common stock equity 8,772,162 (8,976,486) 8,772,162 2,690,374
CUMULATIVE PREFERRED STOCK OF
SUBSIDIARIES (See note on page A-12):
$100 par or stated value--
4.20% to 5.96% 199,299 - - 77,400
6.32% to 7.88% 205,404 - - 5,000
$25 par or stated value--
$1.90 to $2.125 295,000 - - -
6.40% to 7.60% 322,500 - - 238,000
Auction rates--at January 1, 1996;
4.43% to 4.53% 70,000 - - 70,000
Adjustable rates--at January 1, 1996;
4.67% to 5.27% 240,000 - - 50,000
Total (annual dividend requirement--$86,121) 1,332,203 - - 440,400
SUBSIDIARY OBLIGATED MANDATORILY
REDEEMABLE PREFERRED SECURITIES:
$25 stated value--
9% (annual distribution requirement--$9,000) 100,000 - - -
LONG-TERM DEBT:
First mortgage bonds of subsidiaries--
Maturity Interest Rates
1996 4-1/2% to 4-3/4% 210,000 - - 60,000
1997 5-7/8% 25,000 - - -
1998 5% to 5.55% 230,000 - - 50,000
1999 6-1/8% to 6-3/8% 365,000 - - 170,000
2000 6% to 7% 340,000 - - 100,000
2001 through 2005 6-1/8% to 7% 910,000 - - 400,000
2006 through 2010 6-7/8% to 9% 225,930 - - 175,000
2016 through 2020 8.665% 255,210 - - -
2021 through 2025 6-7/8% to 9-3/8% 1,900,071 - - 1,044,856
Total first mortgage bonds 4,461,211 - - 1,999,856
Other long-term debt 4,402,342 (426,836) - 485,103
Unamortized debt premium (discount), net (49,120) 33,812 - (25,329)
Total long-term debt (annual interest
requirement--$625,874) 8,814,433 (393,024) - 2,459,630
Less amount due within one year 508,572 (191) - 84,682
Long-term debt excluding amount due
within one year 8,305,861 (392,833) - 2,374,948
TOTAL CAPITALIZATION $ 18,510,226 $ (9,369,319) $ 8,772,162 $ 5,505,722
(Continued on following page)
A-10(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995
(Stated in Thousands of Dollars)
GEORGIA GULF MISSISSIPPI SAVANNAH
COMMON STOCK EQUITY:
Common stock, par value $5 per share
Authorized -- 1,000,000,000 shares
<S> <C> <C> <C> <C>
Outstanding -- 669,542,914 shares $ - $ - $ - $ -
Common stock of subsidiaries 344,250 38,060 37,691 54,223
Paid-in capital 2,384,444 218,438 179,362 8,688
Premium on preferred stock 413 81 372 -
Additional minimum liability for
under-funded pension obligations - - - (132)
Retained earnings 1,569,905 179,663 157,459 105,033
Total common stock equity 4,299,012 436,242 374,884 167,812
CUMULATIVE PREFERRED STOCK OF
SUBSIDIARIES (See note on page A-12):
$100 par or stated value--
4.20% to 5.96% 95,787 15,102 11,010 -
6.32% to 7.88% 127,000 10,000 63,404 -
$25 par or stated value--
$1.90 to $2.125 295,000 - - -
6.40% to 7.60% - 49,500 - 35,000
Auction rates--at January 1, 1996;
4.43% to 4.53% - - - -
Adjustable rates--at January 1, 1996;
4.67% to 5.27% 175,000 15,000 - -
Total (annual dividend requirement--$86,121) 692,787 89,602 74,414 35,000
SUBSIDIARY OBLIGATED MANDATORILY
REDEEMABLE PREFERRED SECURITIES:
$25 stated value--
9% (annual distribution requirement--$9,000) 100,000 - - -
LONG-TERM DEBT:
First mortgage bonds of subsidiaries--
Maturity Interest Rates
1996 4-1/2% to 4-3/4% 150,000 - - -
1997 5-7/8% - 25,000 - -
1998 5% to 5.55% 100,000 45,000 35,000 -
1999 6-1/8% to 6-3/8% 195,000 - - -
2000 6% to 7% 200,000 - 40,000 -
2001 through 2005 6-1/8% to 7% 425,000 30,000 35,000 20,000
2006 through 2010 6-7/8% to 9% 50,000 930 - -
2016 through 2020 8.665% - - - -
2021 through 2025 6-7/8% to 9-3/8% 595,368 50,000 110,447 99,400
Total first mortgage bonds 1,715,368 150,930 220,447 119,400
Other long-term debt 1,765,430 206,704 128,745 38,440
Unamortized debt premium (discount), net (14,892) (2,710) (3,143) (2,754)
Total long-term debt (annual interest
requirement--$625,874) 3,465,906 354,924 346,049 155,086
Less amount due within one year 150,446 31,548 57,229 1,407
Long-term debt excluding amount due
within one year 3,315,460 323,376 288,820 153,679
TOTAL CAPITALIZATION $ 8,407,259 $ 849,220 $ 738,118 $ 356,491
(Continued on following page)
A-10(b)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995
(Stated in Thousands of Dollars)
SOUTHERN
SEGCO SCS NUCLEAR SEI
COMMON STOCK EQUITY:
Common stock, par value $5 per share
Authorized -- 1,000,000,000 shares
<S> <C> <C> <C> <C>
Outstanding -- 669,542,914 shares $ - $ - $ - $ -
Common stock of subsidiaries 328 725 10 100
Paid-in capital 32,472 150 1,614 101,932
Premium on preferred stock - - - -
Additional minimum liability for
under-funded pension obligations - - - -
Retained earnings 21,665 - - (101,919)
Total common stock equity 54,465 875 1,624 113
CUMULATIVE PREFERRED STOCK OF
SUBSIDIARIES (See note on page A-12):
$100 par or stated value--
4.20% to 5.96% - - - -
6.32% to 7.88% - - - -
$25 par or stated value--
$1.90 to $2.125 - - - -
6.40% to 7.60% - - - -
Auction rates--at January 1, 1996;
4.43% to 4.53% - - - -
Adjustable rates--at January 1, 1996;
4.67% to 5.27% - - - -
Total (annual dividend requirement--$86,121) - - - -
SUBSIDIARY OBLIGATED MANDATORILY
REDEEMABLE PREFERRED SECURITIES:
$25 stated value--
9% (annual distribution requirement--$9,000) - - - -
LONG-TERM DEBT:
First mortgage bonds of subsidiaries--
Maturity Interest Rates
1996 4-1/2% to 4-3/4% - - - -
1997 5-7/8% - - - -
1998 5% to 5.55% - - - -
1999 6-1/8% to 6-3/8% - - - -
2000 6% to 7% - - - -
2001 through 2005 6-1/8% to 7% - - - -
2006 through 2010 6-7/8% to 9% - - - -
2016 through 2020 8.665% - - - -
2021 through 2025 6-7/8% to 9-3/8% - - - -
Total first mortgage bonds - - - -
Other long-term debt 78,700 74,048 5,000 -
Unamortized debt premium (discount), net (292) - - -
Total long-term debt (annual interest
requirement--$625,874) 78,408 74,048 5,000 -
Less amount due within one year - 10,598 - -
Long-term debt excluding amount due
within one year 78,408 63,450 5,000 -
TOTAL CAPITALIZATION $ 132,873 $ 64,325 $ 6,624 $ 113
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 through A-6 inclusive) are an integral part of this
statement.
A-11(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Southern Southern
SEIH MESH Development Communications SERC
COMMON STOCK EQUITY:
Common stock, par value $5 per share
Authorized -- 1,000,000,000 shares
<S> <C> <C> <C> <C> <C>
Outstanding -- 669,542,914 shares $ - $ - $ - $ - $ -
Common stock of subsidiaries 1 1 1 1 5
Paid-in capital 762,144 41,367 9,659 107,144 -
Premium on preferred stock - - - - -
Additional minimum liability for
under-funded pension obligations - - - - -
Retained earnings 44,362 (602) (5,301) (7,697) -
Total common stock equity 806,507 40,766 4,359 99,448 5
CUMULATIVE PREFERRED STOCK OF
SUBSIDIARIES (See note on page A-12):
$100 par or stated value--
4.20% to 5.96% - - - - -
6.32% to 7.88% - - - - -
$25 par or stated value--
$1.90 to $2.125 - - - - -
6.40% to 7.60% - - - - -
Auction rates--at January 1, 1996;
4.43% to 4.53% - - - - -
Adjustable rates--at January 1, 1996;
4.67% to 5.27% - - - - -
Total (annual dividend requirement--$86,121) - - - - -
SUBSIDIARY OBLIGATED MANDATORILY
REDEEMABLE PREFERRED SECURITIES:
$25 stated value--
9% (annual distribution requirement--$9,000) - - - - -
LONG-TERM DEBT:
First mortgage bonds of subsidiaries--
Maturity Interest Rates
1996 4-1/2% to 4-3/4% - - - - -
1997 5-7/8% - - - - -
1998 5% to 5.55% - - - - -
1999 6-1/8% to 6-3/8% - - - -
2000 6% to 7% - - - -
2001 through 2005 6-1/8% to 7% - - - - -
2006 through 2010 6-7/8% to 9% - - - - -
2016 through 2020 8.665% - 255,210 - - -
2021 through 2025 6-7/8% to 9-3/8% - - - - -
Total first mortgage bonds - 255,210 - - -
Other long-term debt 1,961,550 85,000 - 458 -
Unamortized debt premium (discount), net (1,963) (31,849) - - -
Total long-term debt (annual interest
requirement--$625,874) 1,959,587 308,361 - 458 -
Less amount due within one year 166,750 5,895 - 208 -
Long-term debt excluding amount due
within one year 1,792,837 302,466 - 250 -
TOTAL CAPITALIZATION $ 2,599,344 $ 343,232 $ 4,359 $ 99,698 $ 5
</TABLE>
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 through A-6 inclusive) are an integral part of this
statement.
A-11(b)
<PAGE>
SOUTHERN AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995
(Continued)
NOTE TO CONSOLIDATING STATEMENT OF CAPITALIZATION:
Shares authorized, shares outstanding and redemption prices of the preferred
stock and preferred securities are shown below:
<TABLE>
<CAPTION>
Shares Redemption Price
Series Authorized Outstanding Per Share**
Cumulative Preferred Stock,
$100 par or stated value--
<S> <C> <C> <C>
4.20% to 5.96% 2,165,125 1,992,989 $102.18 to $110.00
6.32% to 7.88% 2,054,040 2,054,040 $101.82 to $108.32*
Undesignated 6,676,600 - -
$25 par or stated value--
$1.90 to $2.125 11,800,000 11,800,000 $26.90* to $27.13*
6.40% to 7.60% 12,900,000 12,900,000 $26.60* to $26.90*
Adjustable rate--at 1/1/96
4.67%-1993 Series 600,000 600,000 $26.25*
4.82%-1993 Series 2,000,000 2,000,000 $26.25*
5.27%-1993 Series 3,000,000 3,000,000 $27.50*
4.85%-1993 Series 4,000,000 4,000,000 $27.50*
Undesignated 32,000,000 - -
$1 Par Value--Undesignated 15,479,800 - -
Auction rate--at 1/1/96: 4.43%
$100 Stated Capital 500,000 500,000 $100
Auction rate--at 1/1/96: 4.53%
$100,000 Stated Capital 200 200 $100,000
$10 Par or Stated Value--
Undesignated 7,420,000 - -
Preferred Securities Redemption Price
Series Authorized Outstanding Per Preferred Security**
Subsidiary Obligated Mandatorily
Redeemable Preferred Securities
9% 4,000,000 4,000,000 $25
*Amount of premium in excess of par or stated value reduces in future years.
**Plus accrued dividends in each case.
</TABLE>
A-12
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dolllars)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
<S> <C> <C> <C> <C>
BALANCE, December 31, 1994 $ 3,191,228 $ (2,855,692) $ 3,191,228 $ 1,085,256
ADD:
Net income after dividends on
preferred
stock of subsidiary companies 1,103,092 (1,135,378) 1,103,092 360,894
4,294,320 (3,991,070) 4,294,320 1,446,150
DEDUCT (ADD):
Cash dividends paid on common stock 811,165 (1) (871,797) 811,165 (1) 285,000
Other common and preferred stock
transactions, net (469) 4,520 (469) (75)
BALANCE, December 31, 1995 $ 3,483,624 $ (3,123,793) $ 3,483,624 $ 1,161,225
(1) SOUTHERN paid quarterly dividends during 1995 of 30-1/2 cents per share or $1.22 for the year.
A-13(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dolllars)
GEORGIA GULF MISSISSIPPI SAVANNAH
<S> <C> <C> <C> <C>
BALANCE, December 31, 1994 $ 1,412,543 $ 168,951 $ 144,328 $ 99,216
ADD:
Net income after dividends on
preferred
stock of subsidiary companies 608,862 57,154 52,531 23,395
2,021,405 226,105 196,859 122,611
DEDUCT (ADD):
Cash dividends paid on common stock 451,500 46,400 39,400 17,600
Other common and preferred stock
transactions, net - 42 - (22)
BALANCE, December 31, 1995 $ 1,569,905 $ 179,663 $ 157,459 $ 105,033
</TABLE>
A-13(b)
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dolllars)
Southern Southern
SEGCO SEI SEIH MESH Development Communications
<S> <C> <C> <C> <C> <C> <C>
BALANCE, December 31, 1994 $ 21,170 $ (80,315) $ 7,715 $ 1,293 $ (4,465) $ -
ADD:
Net income after dividends on
preferred
stock of subsidiary companies 8,104 (20,500) 45,137 12,799 (5,301) (7,697)
29,274 (100,815) 52,852 14,092 (9,766) (7,697)
DEDUCT (ADD):
Cash dividends paid on common stock 7,609 1,104 8,490 14,694 - -
Other common and preferred stock
transactions, net - - - - (4,465) -
BALANCE, December 31, 1995 $ 21,665 $ (101,919) $ 44,362 $ (602) $ (5,301) $ (7,697)
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 through A-6 inclusive) are an integral part of this
statement.
A-13(c)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF PAID-IN CAPITAL
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
<S> <C> <C> <C> <C>
BALANCE, December 31, 1994 $ 1,711,366 $ (4,670,443) $ 1,712,378 $ 1,304,645
ADD (DEDUCT):
Proceeds from issuance of common
stock over the par value thereof 211,724 (1) - 211,724 (1) -
Contributions to (repayments of) capital - (303,677) - -
Conversion of debt to equity - (158,036) - -
Translation adjustment (6,748) - - -
Unrealized gains/losses on investment
valuations 27,358 - - -
Other (3,889) (20,915) 16,721 -
BALANCE, December 31, 1995 $ 1,939,811 $ (5,153,071) $ 1,940,823 $ 1,304,645
(1) SOUTHERN issued 13,014,788 shares of common stock during 1995.
A-14(a)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF PAID-IN CAPITAL
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
GEORGIA GULF MISSISSIPPI SAVANNAH
<S> <C> <C> <C> <C>
BALANCE, December 31, 1994 $ 2,384,348 $ 218,380 $ 179,362 $ 8,688
ADD (DEDUCT):
Proceeds from issuance of common
stock over the par value thereof - - - -
Contributions to (repayments of) capital - - - -
Conversion of debt to equity - - - -
Translation adjustment - - - -
Unrealized gains/losses on investment
valuations - - - -
Other 96 58 - -
BALANCE, December 31, 1995 $ 2,384,444 $ 218,438 $ 179,362 $ 8,688
A-14(b)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF PAID-IN CAPITAL
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
SOUTHERN
SEGCO SCS NUCLEAR SEI
<S> <C> <C> <C> <C>
BALANCE, December 31, 1994 $ 32,472 $ 58 $ 1,530 $ 92,926
ADD (DEDUCT):
Proceeds from issuance of common
stock over the par value thereof - - - -
Contributions to (repayments of) capital - - - 9,006
Conversion of debt to equity - - - -
Translation adjustment - - - -
Unrealized gains/losses on investment
valuations - - - -
Other - 92 84 -
BALANCE, December 31, 1995 $ 32,472 $ 150 $ 1,614 $ 101,932
A-14(c)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF PAID-IN CAPITAL
FOR THE YEAR ENDED DECEMBER 31, 1995
(Stated in Thousands of Dollars)
Southern Southern
SEIH MESH Development Communications
<S> <C> <C> <C> <C>
BALANCE, December 31, 1994 $ 361,461 $ 74,249 $ 7,242 $ 4,070
ADD (DEDUCT):
Proceeds from issuance of common
stock over the par value thereof - - - -
Contributions to (repayments of) capital 222,062 (32,882) 2,417 103,074
Conversion of debt to equity 158,036 - - -
Translation adjustment (6,748) - - -
Unrealized gains/losses on investment
valuations 27,358 - - -
Other (25) - - -
BALANCE, December 31, 1995 $ 762,144 $ 41,367 $ 9,659 $ 107,144
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 through A-6 inclusive) are an integral part of this
statement.
A-14(d)
</TABLE>
<PAGE>
Notes to Financial Statements
at December 31, 1995
The notes to the financial statements are herein incorporated by reference as
part of exhibit numbers A-1 through A-6 inclusive and are an integral part of
the financial statements.
A-15
<PAGE>
ALABAMA PROPERTY COMPANY
STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(Unaudited; Not Consolidated in Parent, ALABAMA)
REVENUES:
Sales of recreational lots $3,416,050
Other sales 608,430
Rentals 109,993
------------
Total Revenues 4,134,473
COSTS AND EXPENSES:
Cost of recreational lot sales 1,702,526
Other cost of sales 631,049
Selling, administrative and general expenses 829,224
------------
Total costs and expenses 3,162,799
OPERATING INCOME 971,674
OTHER INCOME:
Interest income 170,259
Other (37,331)
INCOME BEFORE PROVISION FOR INCOME TAXES 1,104,602
PROVISION FOR INCOME TAXES 401,987
NET INCOME $ 702,615
ALABAMA PROPERTY COMPANY
STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Unaudited; Not Consolidated in Parent, ALABAMA)
RETAINED EARNINGS AT DECEMBER 31, 1994 $8,439,562
Net income 702,615
Dividend on common stock (2,000,000)
----------
RETAINED EARNINGS AT DECEMBER 31, 1995 $7,142,177
==========
A-16
<PAGE>
ALABAMA PROPERTY COMPANY
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Unaudited; Not Consolidated in Parent, ALABAMA)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 702,615
------------
Adjustments to reconcile net income to net cash
provided by operating activities:
Additions to property held for sale (770,428)
Property cost of lot sales 1,289,083
Changes in current assets and liabilities:
Interest receivable (6,630)
Receivable from parent company (30,245)
Refundable income taxes (98,214)
Prepayments and other current assets 33,233
Accrued income taxes (82,036)
Other accrued taxes (15,261)
------------
Total adjustments 319,502
NET CASH PROVIDED FROM OPERATING ACTIVITIES 1,022,117
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends Paid (2,000,000)
NET CHANGE IN CASH AND CASH EQUIVALENTS (977,883)
CASH AND CASH EQUIVALENTS, Beginning of year 3,202,797
CASH AND CASH EQUIVALENTS, End of year $2,224,914
==========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Net cash paid during the year for income taxes $608,550
========
A-17
<PAGE>
ALABAMA PROPERTY COMPANY
BALANCE SHEET AT DECEMBER 31, 1995
(Unaudited; Not Consolidated in Parent, ALABAMA)
ASSETS
CURRENT ASSETS:
Cash $ 9,914
Temporary cash investments 2,215,000
Interest receivable 6,630
Accounts receivable 7,250
Receivable from parent company 31,674
Refundable income taxes 269,043
------------
Total current assets 2,539,511
PROPERTY AND MINERAL RIGHTS HELD FOR
FUTURE DEVELOPMENT 5,073,015
Total Assets $7,612,526
==========
LIABILITIES AND CAPITALIZATION
CURRENT LIABILITIES:
Other accrued taxes $ 20,349
----------
Total current liabilities 20,349
----------
CAPITALIZATION:
Common stock, $150 par value; 1,000 shares
authorized, issued and outstanding 150,000
Additional paid-in capital 300,000
Retained earnings 7,142,177
----------
Total capitalization 7,592,177
----------
Total liabilities and capitalization $7,612,526
==========
A-18
<PAGE>
<TABLE>
<CAPTION>
GEORGIA AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
GEORGIA GEORGIA GEORGIA
CONSOLIDATED ELIMINATIONS CORPORATE PIEDMONT CAPITAL
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES: $4,405,338 $(839) $4,405,338 $839 $ -
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation--
Fuel 900,973 - 900,973 - -
Purchased power from non-affiliates 183,009 - 183,009 - -
Purchased power from affiliates 131,740 - 131,740 - -
Other 746,525 (839) 747,364 - -
Maintenance 292,029 - 292,029 - -
Depreciation and amortization 421,850 - 421,804 46 -
Amortization of deferred Plant Vogtle
costs 124,454 - 124,454 - -
Taxes other than income taxes 204,675 - 204,336 339 -
Federal and state income taxes 449,204 - 449,029 175 -
- ------------------------------------------------------------------------------------------------------------------------------------
Total operating expenses 3,454,459 (839) 3,454,738 560 -
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME 950,879 - 950,600 279 -
OTHER INCOME (EXPENSE):
Allowance for equity funds used
during construction 2,734 - 2,734 - -
Interest income 5,524 (10,883) 6,165 963 9,279
Other, net (4,922) - (4,835) (Note A) (87) -
Income taxes applicable to
other income 3,022 - 3,113 (91) -
- ------------------------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 957,237 (10,883) 957,777 1,064 9,279
- ------------------------------------------------------------------------------------------------------------------------------------
INTEREST CHARGES:
Interest on long-term debt 254,607 (642) 254,607 642 -
Allowance for debt funds used
during construction (12,081) - (12,081) - -
Amortization of debt discount,
premium, and expense, net 15,835 - 15,835 - -
Other interest charges 41,862 (10,241) 43,103 - 9,000
- ------------------------------------------------------------------------------------------------------------------------------------
Net interest charges 300,223 (10,883) 301,464 642 9,000
- ------------------------------------------------------------------------------------------------------------------------------------
NET INCOME 657,014 - 656,313 422 279
DIVIDENDS ON PREFERRED STOCK 48,152 - 48,152 - -
- ------------------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS
ON PREFERRED STOCK $ 608,862 $ - $ 608,161 $ 422 $ 279
====================================================================================================================================
A-19
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GEORGIA AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
GEORGIA GEORGIA GEORGIA
CONSOLIDATED ELIMINATIONS CORPORATE PIEDMONT CAPITAL
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C> <C>
Net income $657,014 $ - $656,313 $422 $279
Adjustments to reconcile consolidated
net income to net cash provided by
operating activities-
Depreciation and amortization 527,310 - 527,208 102 -
Deferred income taxes and investment
tax credits, net 37,150 - 37,229 (79) -
Allowance for equity funds used
during construction (2,734) - (2,734) - -
Amortization of deferred Plant Vogtle costs124,454 - 124,454 - -
Other, net 134 - 134 - -
Changes in current assets and
liabilities-
Receivables, net (59,370) 279 (59,370) - (279)
Inventories 30,761 - 30,761 - -
Payables 45,882 - 45,882 - -
Taxes accrued 11,373 (184) 11,373 184 -
Energy cost recovery, retail 42,576 - 42,576 - -
Other 3,473 - 3,473 - -
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING
ACTIVITIES 1,418,023 95 1,417,299 629 -
- ------------------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES:
Gross property additions (480,449) - (480,449) - -
Sales of property 131,099 - 131,099 - -
Other (42,579) - (42,579) - -
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (391,929) - (391,929) - -
- ------------------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES:
Proceeds-
First Mortgage Bonds 75,000 - 75,000 - -
Other long-term debt 504,700 (210) 504,700 210 -
Retirements-
First mortgage bonds (505,789) - (505,789) - -
Other long-term debt (541,810) - (541,810) - -
Interim obligations, net (24,472) - (24,472) - -
Payment of common stock dividends (451,500) - (451,500) - -
Payment of preferred stock dividends (48,419) - (48,419) - -
Miscellaneous (17,413) 838 (17,413) (838) -
- ------------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM (USED FOR)
FINANCING ACTIVITIES (1,009,703) 628 (1,009,703) (628) -
- ------------------------------------------------------------------------------------------------------------------------------------
NET CHANGE IN CASH AND
CASH EQUIVALENTS 16,391 723 15,667 1 -
CASH AND CASH EQUIVALENTS
AT THE BEGINNING OF THE YEAR 12,539 (41) 12,539 41 -
- ------------------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS
AT THE END OF THE YEAR $ 28,930 $682 $28,206 $ 42 $ -
====================================================================================================================================
A-20
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GEORGIA AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1995
(in thousands)
GEORGIA GEORGIA GEORGIA
CONSOLIDATED ELIMINATIONS CORPORATE PIEDMONT CAPITAL
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
UTILITY PLANT $10,483,039 $ - $10,463,875 $19,164 $ -
- ------------------------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND
INVESTMENTS 239,888 (126,049) 260,606 (Note B) 2,231 103,100
- ------------------------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS:
Cash and cash equivalents 28,930 - 28,888 42 -
Receivables-
Customer accounts receivable 418,749 - 418,749 - -
Affiliated companies 15,482 - 15,482 - -
Other accounts receivable 102,953 (1,038) 102,953 - 1,038
Accumulated provisions for
uncollectible accounts (5,000) - (5,000) - -
Fossil fuel stock, at average cost 145,151 - 145,151 - -
Materials and supplies, at
average cost 286,804 - 286,804 - -
Prepayments 107,764 - 107,764 - -
Vacation pay deferred 35,543 - 35,543 - -
- ------------------------------------------------------------------------------------------------------------------------------------
Total 1,136,376 (1,038) 1,136,334 42 1,038
- ------------------------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES
Deferred charges related to
income taxes 871,783 - 871,783 - -
Deferred Plant Vogtle costs 307,638 - 307,638 - -
Miscellaneous 431,551 - 431,551 - -
- ------------------------------------------------------------------------------------------------------------------------------------
Total 1,610,972 - 1,610,972 - -
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $13,470,275 $(127,087) $13,471,787 $21,437 $104,138
====================================================================================================================================
</TABLE>
A-21
<PAGE>
<TABLE>
<CAPTION>
GEORGIA AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1995
(in thousands)
GEORGIA GEORGIA GEORGIA
CONSOLIDATED ELIMINATIONS CORPORATE PIEDMONT CAPITAL
- ------------------------------------------------------------------------------------------------------------------------------------
CAPITALIZATION:
<S> <C> <C> <C> <C> <C>
Common stock equity $4,299,012 $ (11,194) $4,297,708 $9,110 $ 3,388
Preferred stock 692,787 - 692,787 - -
Subsidiary obligated
mandatorily redeemable
preferred securities 100,000 - - 100,000
Long-term debt 3,315,460 (114,855) 3,418,560 11,755 -
- ------------------------------------------------------------------------------------------------------------------------------------
Total 8,407,259 (126,049) 8,409,055 20,865 103,388
- ------------------------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES:
Long-term debt due within
one year 150,446 - 150,446 - -
Notes payable to banks 178,000 - 178,000 - -
Commercial paper 222,330 - 222,330 - -
Accounts payable-
Affiliated companies 72,878 - 72,878 - -
Other 316,278 - 316,278 - -
Customer deposits 53,145 - 53,145 - -
Taxes accrued 104,392 - 103,519 873 -
Interest accrued 96,162 (1,038) 96,450 - 750
Vacation pay accrued 34,233 - 34,233 - -
Miscellaneous 137,184 - 137,184 - -
- ------------------------------------------------------------------------------------------------------------------------------------
Total 1,365,048 (1,038) 1,364,463 873 750
- ------------------------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS:
Accumulated deferred income
taxes 2,510,458 - 2,510,458 - -
Accumulated deferred investment
tax credits 432,184 - 432,485 (301) -
Deferred credits related to income
taxes 410,016 - 410,016 - -
Miscellaneous 345,310 - 345,310 - -
- ------------------------------------------------------------------------------------------------------------------------------------
Total 3,697,968 - 3,698,269 (301) -
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION
AND LIABILITIES $13,470,275 $(127,087) $13,471,787 $21,437 $104,138
====================================================================================================================================
</TABLE>
A-22
<PAGE>
Notes to GEORGIA's Consolidated
Financial Statements
(A) Includes $4,052,000 equity in earnings for SEGCO, a
non-consolidated subsidiary in which GEORGIA has 50% ownership.
SEGCO is accounted for on the equity basis. See pages A-2 through
A-14 for SEGCO's financial statements consolidated for SOUTHERN.
(B) Includes $27,232,000 of investments in SEGCO.
A-23
<PAGE>
PIEDMONT
STATEMENT OF INCOME AND
EARNINGS RETAINED IN THE BUSINESS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Consolidated in Parent, GEORGIA)
(Unaudited)
(in thousands)
REVENUES:
Rent $839
Other (Interest) 963 $1,802
----
EXPENSES:
Interest 642
Taxes 605
Depreciation 102
Miscellaneous 31 1,380
---- ------
NET INCOME 422
EARNINGS RETAINED IN THE BUSINESS
AT DECEMBER 31, 1994 594
------
EARNINGS RETAINED IN THE BUSINESS
AT DECEMBER 31, 1995 $1,016
======
A-24
<PAGE>
PIEDMONT
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Consolidated in Parent, GEORGIA)
(Unaudited)
(in thousands)
OPERATING ACTIVITIES:
Net income $422
Deferred income taxes (79)
Depreciation 102
Change in current liabilities 184 $629
----
FINANCING ACTIVITIES:
Increase in advances from parent 210
Decrease in capital contributions (838) (628)
---- ----
NET CHANGE IN CASH $ 1
====
A-25
<PAGE>
PIEDMONT
BALANCE SHEET AT DECEMBER 31, 1995
(Consolidated in Parent, GEORGIA)
(Unaudited)
(in thousands)
ASSETS
INVESTMENTS:
Plant-in-service $19,164
Non-utility property 2,231 $21,395
---------
CURRENT ASSETS:
Cash 42
-------
TOTAL ASSETS $21,437
=======
CAPITALIZATION AND LIABILITIES
CAPITALIZATION:
Common stock, $1 par (1,000,000 shares
authorized, 100,000 shares issued) $ 100
Other paid-in capital 7,994
Retained earnings 1,016 $ 9,110
------
Long-term debt - Advances from parent company 11,755
--------
Total capitalization 20,865
CURRENT LIABILITIES:
Federal and state income taxes accrued 610
Taxes other than income taxes 263 873
------
DEFERRED CREDITS:
Accumulated deferred income taxes (301)
---------
TOTAL CAPITALIZATION AND LIABILITIES $21,437
=========
A-26
<PAGE>
GEORGIA CAPITAL
STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(Consolidated in Parent, GEORGIA)
(Unaudited)
(in thousands)
Interest Income $9,279
Less: Preferred Distributions 9,000
------
NET INCOME 279
EARNINGS RETAINED IN THE BUSINESS AT DECEMBER 31, 1994 9
------
EARNINGS RETAINED IN THE BUSINESS AT DECEMBER 31, 1995 $ 288
======
A-27
<PAGE>
GEORGIA CAPITAL
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Consolidated in Parent, GEORGIA)
(Unaudited)
(in thousands)
OPERATING ACTIVITIES:
Net income $279
Change in current assets and current liabilities (279)
-----
NET CHANGE IN CASH $ 0
=====
A-28
<PAGE>
GEORGIA CAPITAL
BALANCE SHEET AT DECEMBER 31, 1995
(Consolidated in Parent, GEORGIA)
(Unaudited)
(in thousands)
ASSETS
INVESTMENTS $103,100
CURRENT ASSETS:
Interest receivable 1,038
--------
TOTAL ASSETS $104,138
========
CAPITALIZATION
CAPITALIZATION:
Miscellaneous paid-in capital $3,100
Retained earnings 288 $ 3,388
--------
Preferred securities 100,000
--------
Total Capitalization 103,388
CURRENT LIABILITIES:
Distributions payable 750
--------
TOTAL CAPITALIZATION AND LIABILITIES $104,138
========
A-29
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings):
Exhibit
Number Description of Exhibit
<S> <C>
A-1 Annual Report of SOUTHERN on Form 10-K for the year ended December 31, 1995. (File No.
1-3526.)
A-2 Annual Report of ALABAMA on Form 10-K for the year ended December 31, 1995. (File No.
1-3164.)
A-3 Annual Report of GEORGIA on Form 10-K for the year ended December 31, 1995. (File No.
1-6468.)
A-4 Annual Report of GULF on Form 10-K for the year ended December 31, 1995 (File No. 0-2429.)
A-5 Annual Report of MISSISSIPPI on Form 10-K for the year ended December 31, 1995. (File No.
0-6849.)
A-6 Annual Report of SAVANNAH on Form 10-K for the year ended December 31, 1995. (File No.
1-5072.)
A-7 Annual Report on Form U-13-60 for SEI for the year ended December 31, 1995.
B-1 Composite Certificate of Incorporation of SOUTHERN, reflecting all amendments thereto through
January 5, 1994. (Designated in Registration No. 33-3546, as Exhibit 4(a), in Certificate of
Notification, File No. 70-7341, as Exhibit A and in Certificate of Notification, File No.
70-8181, as Exhibit A.)
B-2 By-laws of SOUTHERN as amended effective October 21, 1991, and as presently in effect.
(Designated in Form U-1, File No. 70-8181, as Exhibit A-2.)
B-3 Charter of ALABAMA and amendments thereto through October 14, 1994. (Designated in
Registration No. 2-59634 as Exhibit 2(b), in Registration No. 2-60209 as Exhibit 2(c), in
Registration No. 2-60484 as Exhibit 2(b), in Registration No. 2-70838 as Exhibit 4(a)-2, in
Registration No. 2-85987 as Exhibit 4(a)-2, in Registration No. 33-25539 as Exhibit 4(a)-2,
in Registration No. 33-43917 as Exhibit 4(a)-2, in Form 8-K dated February 5, 1992, File No.
1-3164, as Exhibit 4(b)-3, in Form 8-K dated July 8, 1992, File No. 1-3164, as Exhibit
4(b)-3, in Form 8-K dated October 27, 1993, File No. 1-3164, as Exhibits 4(a) and 4(b) , in
Form 8-K dated November 16, 1993, File No. 1-3164, as Exhibit 4(a) and in Certificate of
Notification, File No. 70-8191, as Exhibit A.)
B-4 By-laws of ALABAMA as amended effective July 23, 1993, and as presently in effect.
(Designated in Form U-1, File No. 70-8191, as Exhibit A-2.)
A-30
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-5 Charter of GEORGIA and amendments thereto through October 25, 1993. (Designated in
Registration No. 2-63392 as Exhibit 2(a)-2, in Registration No. 2-78913 as Exhibits 4(a)-(2)
and 4(a)-(3), in Registration No. 2-93039 as Exhibit 4(a)-(2), in Registration No. 2-96810 as
Exhibit 4(a)(2), in Registration No. 33-141 as Exhibit 4(a)(2), in Registration No. 33-1359
as Exhibit 4(a)(2), in Registration No. 33-5405 as Exhibit 4(b)(2), in Registration No.
33-14367 as Exhibits 4(b)-2 and 4(b)-3, in Registration No. 33-22504 as Exhibits 4(b)-(2),
4(b)-(3) and 4(b)-(4), in GEORGIA's Form 10-K for the year ended December 31, 1991, File No.
1-6468, as Exhibits 4(a)(2) and 4(a)(3), in Registration No. 33-48895, as Exhibits 4(b)-(2)
and 4(b)-(3), in Form 8-K dated December 10, 1992, File No. 1-6468, as Exhibit 4(b), in Form
8-K dated June 17, 1993, File No. 1-6468, as Exhibit 4(b) and in Form 8-K dated October 20,
1993, File No. 1-6468, as Exhibit 4(b).)
B-6 By-laws of GEORGIA as amended effective July 18,
1990, and as presently in effect. (Designated in
GEORGIA's Form 10-K for the year ended December
31, 1990, File No. 1-6468, as Exhibit 3.)
B-7 Restated Articles of Incorporation of GULF and amendments thereto through November 8, 1993.
(Designated in Registration No. 33-43739 as Exhibit 4(b)-1), in Form 8-K dated January 15,
1992, File No. 0-2429, as Exhibit 1(b), in Form 8-K dated August 18, 1992, File No. 0-2429,
as Exhibit 4(b)-2, in Form 8-K dated September 22, 1993, File No. 0-2429, as Exhibit 4 and in
Form 8-K dated November 3, 1993, File No. 0-2429, as Exhibit 4.)
B-8 By-laws of GULF as amended effective February 25,
1994, and as presently in effect. (Designated in
GULF's Form 10-K for the year ended December 31,
1993, File No. 0-2429, as Exhibit 3(d)2.)
B-9 Articles of incorporation of MISSISSIPPI, articles of merger of Mississippi Power Company (a
Maine corporation) into MISSISSIPPI and articles of amendment to the articles of
incorporation of MISSISSIPPI through August 19, 1993. (Designated in Registration No.
2-71540 as Exhibit 4(a)-1, in Form U5S for 1987, File No. 30-222-2, as Exhibit B-10, in
Registration No. 33-49320 as Exhibit 4(b)-1, in Form 8-K dated August 5, 1992, File No.
0-6849, as Exhibits 4(b)-2 and 4(b)-3 in Form 8-K dated August 4, 1993, File No. 0-6849, as
Exhibit 4(b)-3 and in Form 8-K dated August 18, 1993, File No. 0-6849, as Exhibit 4(b)-3.)
B-10 By-laws of MISSISSIPPI as amended effective April 2, 1996, and as presently in effect.
B-11 Charter of SAVANNAH and amendments thereto through November 10, 1993. (Designated in
Registration No. 33-25183 as Exhibit 4(b)-(1), in Registration No. 33-45757 as Exhibit
4(b)-(2) and in Form 8-K dated November 9, 1993, File No. 1-5072 as Exhibit 4(b).)
A-31
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-12 By-laws of SAVANNAH as amended effective February 16, 1994, and as presently in effect. (Designated
in SAVANNAH's Form 10-K for the year ended December 31, 1993, File No. 1-5072, as Exhibit
3(f)2.)
B-13 SEGCO Certificate of Incorporation as amended to date, last amended November 29, 1966.
(Designated in Forms U-1, File No. 70-3480, as Exhibit A-5, File No. 70-3630, as Exhibit A-6,
File Nos. 70-3738 and 70-3842, as Exhibit A-8(b); Registration No. 2-18084 as Exhibit 3(a)-2
and First Certificate of Notification, File No. 70-3945, as Exhibit A.)
B-14 SEGCO By-laws as amended to date, last amended July 10, 1986. (Designated in Form U5S for the
year ended December 31, 1990, as Exhibit B-14.)
B-15 SCS Certificate of Incorporation as amended. (Designated in Form U-1, File No. 70-3573, as
Exhibit A-1; in Form U-1, File No. 70-3833, as Exhibit A-2; Form U5S for 1962, File No.
30-222-2, as Exhibit A-17; and Form U5S for 1985, File No. 30-222-2, as Exhibit B-13(b).)
B-16 SCS By-laws as amended to date, last amended February 20, 1995. (Designated in Form U5S for
1994, File No. 30-222-2, as Exhibit B-16)
B-17 Alabama Property Company Certificate of Incorporation. (Designated in Form U-5B, File No.
30-115, as Exhibit B-29.)
B-18 Alabama Property Company By-laws. (Designated in Form U-5B, File No. 30-115, as Exhibit
B-30.)
B-19 Piedmont-Forrest Corporation Articles of Incorporation and amendments thereto through August
31, 1987. (Designated in Form U-1, File No. 70-6135, as Exhibit A-1 and in Form U5S for
1987, File No. 30-222-2, as Exhibit B-21.)
B-20 Piedmont-Forrest Corporation By-laws as presently in effect. (Designated in Form U-1, File
No. 70-6135, as Exhibit A-2.)
B-21 Articles of Incorporation of SEI and amendments thereto through September 24, 1987.
(Designated in Form U5S for 1982, File No. 30-222-2, as Exhibit A-19 and in Form U5S for
1987, File No. 30-222-2, as Exhibit B-24.)
B-22 By-laws of SEI as amended to date, last amended February 25, 1994. (Designated in Form U5S
for 1993, File No. 30-222-2, as Exhibit B-24.)
B-23 Articles of Incorporation of MESH and amendments thereto.
B-24 By-laws of MESH.
</TABLE>
A-32
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-25 Articles of Incorporation of Southern Development and amendments thereto through March 25,
1993. (Designated in Form U5S for 1985, File No. 30-222-2, as Exhibit B-23 , in Form U5S for
1987, File No. 30-222-2, as Exhibit B-27 and in Form U5S for 1993, File No. 30-222-2, as
Exhibit B-25.)
B-26 By-laws of Southern Development. (Designated in Form U5S for 1985, File No. 30-222-2, as
Exhibit B-24.)
B-27 By-laws of SOUTHERN NUCLEAR as amended to date, last amended May 21, 1991. (Designated in
Form U5S for 1991, File No. 30-222-2, as Exhibit B-27.)
B-28 Articles of Incorporation of SOUTHERN NUCLEAR and amendment thereto through June 14, 1991.
(Designated in Form U5S for 1991, File No. 30-222-2, as Exhibit B-28.)
B-29 Certificate of Incorporation of SERC. (Designated in Form U5S for 1993, File No. 30-222-2,
as Exhibit B-30
B-30 By-laws of SERC. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-31.)
B-31 Certificate of Incorporation of SOUTHERN COMMUNICATIONS. (Designated in Form U5S for 1994,
File No. 30-222-2, as Exhibit B-31)
B-32 By-laws of SOUTHERN COMMUNICATIONS. (Designated in Form U5S for 1994, File No. 30-222-2, as
Exhibit B-32)
B-33 Certificate of Incorporation of SEIH. (Designated in Form U5S for 1993, File No. 30-222-2,
as Exhibit B-32.)
B-34 By-laws of SEIH. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-33.)
B-35 Certificate of Incorporation of SEIH-III. (Designated in Form U5S for 1993, File No.
30-222-2, as Exhibit B-34.)
B-36 By-laws of SEIH-III. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-35.)
B-37 Certificate of Incorporation of Southern Electric International - Europe, Inc. and amendments
thereto.
B-38 By-laws of Southern Electric International - Europe, Inc.
A-33
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-39 Certificate of Incorporation of SEWG. (Designated in Form U5S for 1993, File No. 30-222-2,
as Exhibit B-38.)
B-40 By-laws of SEWG. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-39.)
B-41 Certificate of Incorporation of SEIH-VIII. (Designated in Form U5S for 1994, File No.
30-222-2, as Exhibit B-41)
B-42 By-laws of SEIH-VIII. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-42)
B-43 Certificate of Incorporation of Southern Electric International Trinidad, Inc. and amendments
thereto.
B-44 By-laws of Southern Electric International Trinidad, Inc.
B-45 Certificate of Incorporation of SEIH-X. (Designated in Form U5S for 1994, File No. 30-222-2,
as Exhibit B-45)
B-46 By-laws of SEIH-X. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-46)
B-47 Certificate of Incorporation of SEIH-XI. (Designated in Form U5S for 1994, File No.
30-222-2, as Exhibit B-47)
B-48 By-laws of SEIH-XI. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-48)
B-49 Articles of Organization of MESCO and amendments thereto.
B-50 Operating Agreement of MESCO.
B-51 Certificate of Incorporation of Southern Electric, Inc. (Designated in Form U5S for 1994,
File No. 30-222-2, as Exhibit B-51)
B-52 By-laws of Southern Electric, Inc. (Designated in Form U5S for 1994, File No. 30-222-2, as
Exhibit B-52)
B-53 Certificate of Incorporation of GEORGIA POWER HOLDINGS. (Designated in Form U5S for 1994,
File No. 30-222-2, as Exhibit B-53)
A-34
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-54 By-laws of GEORGIA POWER HOLDINGS. (Designated in Form U5S for 1994, File No. 30-222-2, as
Exhibit B-54)
B-55 Certificate of Limited Partnership of GEORGIA CAPITAL. (Designated in Form U5S for 1994,
File No. 30-222-2, as Exhibit B-55)
B-56 Amended and Restated Agreement of Limited Partnership of GEORGIA CAPITAL. (Designated in
Form U5S for 1994, File No. 30-222-2, as Exhibit B-56)
B-57 Action of General Partner of GEORGIA CAPITAL dated December 9, 1994. (Designated in Form U5S
for 1994, File No. 30-222-2, as Exhibit B-57)
B-58 Certificate of Incorporation of SEI Newco 1, Inc.
B-59 By-laws of SEI Newco 1, Inc.
B-60 Certificate of Incorporation of SEI Newco 2, Inc.
B-61 By-laws of SEI Newco 2, Inc.
C-1 Indenture dated as of January 1, 1942, between ALABAMA and Chemical Bank, as Trustee, and
indentures supplemental thereto through that dated as of December 1, 1994. (Designated in
Registration Nos. 2-59843 as Exhibit 2(a)-2, 2-60484 as Exhibits 2(a)-3 and 2(a)-4, 2-60716
as Exhibit 2(c), 2-67574 as Exhibit 2(c), 2-68687 as Exhibit 2(c), 2-69599 as Exhibit 4(a)-2,
2-71364 as Exhibit 4(a)-2, 2-73727 as Exhibit 4(a)-2, 33-5079 as Exhibit 4(a)-2, 33-17083 as
Exhibit 4(a)-2, 33-22090 as Exhibit 4(a)-2, in ALABAMA's Form 10-K for the year ended
December 31, 1990, File No. 1-3164, as Exhibit 4(c), in Registration Nos. 33-43917 as Exhibit
4(a)-2, 33-45492 as Exhibit 4(a)-2, 33-48885 as Exhibit 4(a)-2, 33-48917 as Exhibit 4(a)-2,
in Form 8-K dated January 20, 1993, File No. 1-3436, as Exhibit 4(a)-3, in Form 8-K dated
February 17, 1993, File No. 1-3436, as Exhibit 4(a)-3, in Form 8-K dated March 10, 1993, File
No. 1-3436, as Exhibit 4(a)-3, in Certificate of Notification, File No. 70-8069, as Exhibits
A and B, in Form 8-K dated June 24, 1993, File No. 1-3436, as Exhibit 4, in Certificate of
Notification, File No. 70-8069, as Exhibit A, in Form 8-K dated November 16, 1993, File No.
1-3436, as Exhibit 4(b), in Certificate of Notification, File No. 70-8069, as Exhibits A and
B, in Certificate of Notification, File No. 70-8069, as Exhibit A, in Certificate of
Notification, File No. 70-8069, as Exhibit A and in Form 8-K dated November 30, 1994, File
No. 1-3436, as Exhibit 4.)
A-35
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
C-2 Indenture dated as of March 1, 1941, between GEORGIA and Chemical Bank, as Trustee, and
indentures supplemental thereto dated as of March 1, 1941, March 3, 1941 (3 indentures),
March 6, 1941 (139 indentures), March 1, 1946 (88 indentures) and December 1, 1947, through
October 15, 1995. (Designated in Registration Nos. 2-4663 as Exhibits B-3 and B-3(a), 2-7299
as Exhibit 7(a)-2, 2-61116 as Exhibit 2(a)-3 and 2(a)-4, 2-62488 as Exhibit 2(a)-3, 2-63393
as Exhibit 2(a)-4, 2-63705 as Exhibit 2(a)-3, 2-68973 as Exhibit 2(a)-3, 2-70679 as Exhibit
4(a)-(2), 2-72324 as Exhibit 4(a)-2, 2-73987 as Exhibit 4(a)-(2), 2-77941 as Exhibits
4(a)-(2) and 4(a)-(3), 2-79336 as Exhibit 4(a)-(2), 2-81303 as Exhibit 4(a)-(2), 2-90105 as
Exhibit 4(a)-(2), 33-5405 as Exhibit 4(a)-(2), 33-14367 as Exhibits 4(a)-(2) and 4(a)-(3),
33-22504 as Exhibits 4(a)-(2), 4(a)-(3) and 4(a)-(4), 33-32420 as Exhibit 4(a)-(2), 33-35683
as Exhibit 4(a)-(2), in GEORGIA's Form 10-K for the year ended December 31, 1990, File No.
1-6468, as Exhibit 4(a)(3), in Form 10-K for the year ended December 31, 1991, File No.
1-6468, as Exhibit 4(a)(5), in Registration No. 33-48895 as Exhibit 4(a)-(2), in Form 8-K
dated August 26, 1992, File No. 1-6468, as Exhibit 4(a)-(3), in Form 8-K dated September 9,
1992, File No. 1-6468, as Exhibits 4(a)-(3) and 4(a)-(4), in Form 8-K dated September 23,
1992, File No. 1-6468, as Exhibit 4(a)-(3), in Form 8-A dated October 12, 1992, as Exhibit
2(b), in Form 8-K dated January 27, 1993, File No. 1-6468, as Exhibit 4(a)-(3), in
Registration No. 33-49661 as Exhibit 4(a)-(2), in Form 8-K dated July 26, 1993, File No.
1-6468, as Exhibit 4, in Certificate of Notification, File No. 70-7832, as Exhibit M, in
Certificate of Notification, File No. 70-7832, as Exhibit C, in Certificate of Notification,
File No. 70-7832, as Exhibits K and L, in Certificate of Notification, File No. 70-8443, as
Exhibit C, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Certificate of
Notification, File No. 70-8443, as Exhibit E, in Certificate of Notification, File No.
70-8443, as Exhibit E, in Certificate of Notification, File No. 70-8443, as Exhibit E, in
GEORGIA's Form 10-K for the year ended December 31, 1994, File No. 1-6468, as Exhibits 4(c)2
and 4(c)3, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Certificate of
Notification, File No. 70-8443, as Exhibit C, in Form 8-K dated May 17, 1995, File No.
1-6468, as Exhibit 4 and in GEORGIA's Form 10-K for the year ended December 31, 1995, File
No. 1-6468, as Exhibits 4(c)2, 4(c)3, 4(c)4, 4(c)5 and 4(c)6.)
C-3 Indenture dated as of June 1, 1994, between GEORGIA and Trust Company Bank, as Trustee and
indenture supplemental thereto dated December 15, 1994. (Designated in Certificate of Notification,
File No. 70-8461 as Exhibits E and F.)
A-36
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
C-4 Indenture dated as of September 1, 1941, between GULF and The Chase Manhattan Bank (National
Association), as Trustee, and indentures supplemental thereto through February 1, 1996.
(Designated in Registration Nos. 2-4833 as Exhibit B-3, 2-62319 as Exhibit 2(a)-3, 2-63765 as
Exhibit 2(a)-3, 2-66260 as Exhibit 2(a)-3, 33-2809 as Exhibit 4(a)-2, 33-43739 as Exhibit
4(a)-2, in GULF's Form 10-K for the year ended December 31, 1991, File No. 0-2429, as Exhibit
4(b), in Form 8-K dated August 18, 1992, File No. 0-2429, as Exhibit 4(a)-3, in Registration
No. 33-50165 as Exhibit 4(a)-2, in Form 8-K dated July 12, 1993, File No. 0-2429, as Exhibit
4, in Certificate of Notification, File No. 70-8229, as Exhibit A, in Certificate of
Notification, File No. 70-8229, as Exhibits E and F, in Form 8-K dated January 17, 1996, File
No. 0-2429, as Exhibit 4 and in Certificate of Notification, File No. 70-8229, as Exhibit A.)
C-5 Indenture dated as of September 1, 1941, between MISSISSIPPI and Bankers Trust Company, as
Successor Trustee, and indentures supplemental thereto through December 1, 1995. (Designated
in Registration Nos. 2-4834 as Exhibit B-3, 2-62965 as Exhibit 2(b)-2, 2-66845 as Exhibit
2(b)-2, 2-71537 as Exhibit 4(a)-(2), 33-5414 as Exhibit 4(a)-(2), 33-39833 as Exhibit 4(a)-2,
in MISSISSIPPI's Form 10-K for the year ended December 31, 1991, File No. 0-6849, as Exhibit
4(b), in Form 8-K dated August 5, 1992, File No. 0-6849, as Exhibit 4(a)-2, in Second
Certificate of Notification, File No. 70-7941, as Exhibit I, in MISSISSIPPI's Form 8-K dated
February 26, 1993, File No. 0-6849, as Exhibit 4(a)-2, in Certificate of Notification, File
No. 70-8127, as Exhibit A, in Form 8-K dated June 22, 1993, File No. 0-6849, as Exhibit 1, in
Certificate of Notification, File No. 70-8127, as Exhibit A, in Form 8-K dated March 8, 1994,
File No. 0-6849, as Exhibit 4, in Certificate of Notification, File No. 70-8127, as Exhibit C
and in Form 8-K dated December 5, 1995, File No. 0-6849, as Exhibit 4.)
C-6 Indenture dated as of March 1, 1945, between SAVANNAH and Bank of New York, New York, as
Trustee, and indentures supplemental thereto through May 1, 1995. (Designated in
Registration Nos. 33-25183 as Exhibit 4(a)-(1), 33-41496 as Exhibit 4(a)-(2), 33-45757 as
Exhibit 4(a)-(2), in SAVANNAH's Form 10-K for the year ended December 31, 1991, File No.
1-5072, as Exhibit 4(b), in Form 8-K dated July 8, 1992, File No. 1-5072, as Exhibit 4(a)-3,
in Registration No. 33-50587 as Exhibit 4(a)-(2), in Form 8-K dated July 22, 1993, File No.
1-5072, as Exhibit 4 and in Form 8-K dated May 18, 1995, File No. 1-5072, as Exhibit
D-1 Income Tax Allocation Agreement and Amendments 1 through 27 thereto. (Designated in Form U5S
for 1981, File No. 30-222-2, as Exhibit A-21, in Form U5S for 1982, File No. 30-222-2, as
Exhibit A-22(b), in Form U5S for 1982, File No. 30-222-2, as Exhibit A-22(c), in Form U5S for
1983, File No. 30-222-2, as Exhibit D-1(d), in Form U5S for 1985, File No. 30-222-2, as
Exhibit D-1(e), in Amendment No. 1 to Form U5S for 1985, File No. 30-222-2, as Exhibit D-1(f)
in Form U5S for 1987, File No. 30-222-2, as
</TABLE>
A-37
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
Exhibit D-2, in Form U5S for 1991, File No. 30-222-2, as Exhibit D-2 and in Form U5S for
1992, File No. 30-222-2, as Exhibit D-2 and in Form U5S for 1991, File No. 30-222-2, as
Exhibit D-2 and in Form U5S for 1994, File No. 30-222-2, as Exhibit D-2.)
D-2 Amendments 28 through 31 to Income Tax Allocation Agreement.
E-1 ALABAMA's, GEORGIA's, GULF's, MISSISSIPPI's, SCS's and SOUTHERN NUCLEAR's personnel policies
pertaining to employee loans. (Designated in Form U5S for 1985, File No. 30-222-2, as
Exhibits E-1, E-2, E-3, E-4 and E-5, in Form U5S, File No. 30-222-2, for 1987 as Exhibit E-2,
in Form U5S for 1990, File No. 30-222-2, as Exhibit E-2, in Form U5S for 1991, File No.
30-222-2, as Exhibits E-2 and E-3 , in Form U5S for 1992, File No. 30-222-2, as Exhibit E-2
in Form U5S for 1993, File No. 30-222-2, as Exhibit E-2, in Form U5S for 1991, File No.
30-222-2, as Exhibit D-2 and in Form U5S for 1994, File No. 30-222-2, as Exhibit E-2.)
E-2 Supplements to GULF's, MISSISSIPPI's and SCS's
personnel policies pertaining to employee loans.
G-1 ALABAMA's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No.
1-3164, as Exhibit 27.)
G-2 GEORGIA's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No.
1-6468, as Exhibit 27.)
G-3 GULF's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No.
0-2429, as Exhibit 27.)
G-4 MISSISSIPPI's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File
No. 0-6849, as Exhibit 27.)
G-5 SAVANNAH's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File
No. 1-5072, as Exhibit 27.)
G-6 SOUTHERN system's consolidated Financial Data Schedule. (Designated in Form 8-K dated
February 21, 1996, File No. 1-3526, as Exhibit 27.)
H Organizational chart.
I Financial statements relating to certain exempt wholesale generators and foreign utility
companies.
</TABLE>
Exhibits listed above which have heretofore been filed with the
SEC pursuant to various Acts administered by the SEC, and which were
designated as noted above, are hereby incorporated herein by reference
and made a part hereof with the same effect as if filed herewith.
A-38
<PAGE>
SIGNATURE
The undersigned registered holding company has duly caused this
annual report to be signed on its behalf by the undersigned thereunto
duly authorized pursuant to the requirements of the Public Utility
Holding Company Act of 1935.
THE SOUTHERN COMPANY
Date: April 26, 1996 By/s/ W. L. Westbrook
W. L. Westbrook
Financial Vice President,
Chief Financial Officer, and
Treasurer
A-39
1
INSTRUCTIONS FOR THE USE OF MODIFIED FORM U-13-60
1. Time of Filing - - Annual Report essentially in the form of U-13-60 shall be
filed appended to Form U5S, Annual Report of the Parent and Associate Companies
Pursuant to the Public Utility Holding Company Act of 1935. Form U5S is required
to be filed by May 1.
2. Number of Copies - - Each annual report shall be filed in duplicate. The
company should prepare and retain at least one extra copy for itself in case
correspondence with reference to the report becomes necessary.
3. Definitions - - Definitions contained in Instruction 01-8 to the Uniform
System of Accounts for Mutual Service Companies and Subsidiary Service
Companies, Public Utility Holding Company Act of 1935, as amended February 2,
1979 shall be applicable to words or terms used specifically within the modified
Form U-13-60.
4. Organization Chart - - The company shall submit with each annual report a
copy of its current organization chart.
<PAGE>
Exhibit A-7
MODIFIED
Form U-13-60
ANNUAL REPORT
For The Period
Beginning January 1, 1995 and Ending December 31, 1995
To The
U.S. SECURITIES AND EXCHANGE COMMISSION
Of
SOUTHERN ELECTRIC INTERNATIONAL, INC.
(Exact Name of Reporting Company)
A Subsidiary Company
Date of Incorporation July 29, 1981. If not incorporated
Date of Organization______________
State or Sovereign Power under which Incorporated or Organized
State of Delaware
Location of Principal Executive Offices of Reporting Company
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
Report filed pursuant to File Number 70-6599
Name,title, and address of officer to whom correspondence
concerning this report should be addressed:
James A. Ward Controller 900 Ashwood Parkway, Suite 500
(Name) (Title) (Address)
Name of Principal Holding Company under which Reporting Company is
Organized:
THE SOUTHERN COMPANY
<PAGE>
2
- -------------------------------------------------------------------------------
LISTING OF SCHEDULES AND ANALYSIS OF ACCOUNTS
- -------------------------------------------------------------------------------
Description of Schedules and Accounts Schedule or Page
Account Number Number
- -------------------------------------------------------------------------------
COMPARATIVE BALANCE SHEET Schedule I 3-4
COMPANY PROPERTY Schedule II 5
ACCUMULATED PROVISIONS FOR DEPRECIATION
AND AMORTIZATION OF COMPANY PROPERTY Schedule III 6
INVESTMENTS Schedule IV 7
ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES
Schedule V 8
MISCELLANEOUS DEFERRED DEBITS Schedule IX 9
PROPRIETARY CAPITAL Schedule XI 10
LONG TERM DEBT Schedule XII 11
CURRENT AND ACCRUED LIABILITIES Schedule XIII 12
NOTES TO FINANCIAL STATEMENTS Schedule XIV 13
COMPARATIVE INCOME STATEMENT Schedule XV 14
ANALYSIS OF BILLING-ASSOCIATE COMPANIES Account 457 15
ANALYSIS OF BILLING-NONASSOCIATE COMPANIES
Account 458 16
SCHEDULE OF EXPENSE BY DEPARTMENT OR FUNCTION
Schedule XVII 17-18
DEPARTMENTAL ANALYSIS OF SALARIES Account 920 19
DISPOSITION OF INTELLECTUAL PROPERTY Account 928 20
MISCELLANEOUS GENERAL EXPENSES Account 930.2 21
TAXES OTHER THAN INCOME TAXES Account 408 22
DONATIONS Account 426.1 23
OTHER DEDUCTIONS Account 426.5 24
NOTES TO STATEMENT OF INCOME Schedule XVIII 25
OUTSIDE SERVICES EMPLOYED Schedule XIX 26
ORGANIZATION CHART 27-28
- -------------------------------------------------------------------------------
<PAGE>
3
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
- -------------------------------------------------------------------------------
SCHEDULE 1 - COMPARATIVE BALANCE SHEET
- -------------------------------------------------------------------------------
Give balance sheet of the Company as of December 31 of the current and
prior year. (Note: Amounts are in thousands of dollars)
- ------------------ ------------------------------------------------------------
ACCOUNT ASSETS AND OTHER DEBITS AS OF DECEMBER 31
- -------------------------------------------------------------------------------
CURRENT PRIOR
------------- ------
COMPANY PROPERTY
101 Company Property (Schedule II) 8,815 8,797
107 Construction work in progress (Schedule II) - -
------ -------
Total Property 8,815 8,797
------ -------
108 Less accumulated provision for
depreciation and amortization of company
property (Schedule III) 4,572) (3,757)
----- ------
Net Company Property 4,243 5,040
----- ------
INVESTMENTS
123 Investments in associate companies - -
124 Other Investments (Schedule IV) 665 -
----- ------
Total Investments 665 -
----- ------
CURRENT AND ACCRUED ASSETS
131 Cash 21,798 15,742
134 Special deposits 1,144 1,084
135 Working funds 35 130
136 Temporary cash investments (Schedule IV) - -
141 Notes Receivable 35 35
143 Accounts Receivable 8,288 5,733
144 Accumulated provision for uncollectable accounts (283) (196)
146 Accounts receivable from associate companies
(Schedule V) 26,122 24,048
152 Fuel stock expenses undistributed - -
154 Materials and supplies - 267
163 Stores expenses undistributed - -
165 Prepayments 328 205
174 Miscellaneous current and accrued assets 2,319 2,469
------- --------
Total Current and Accrued Assets 59,786 49,517
------ --------
DEFERRED DEBITS
181 Unamortized debt expense - -
184 Clearing accounts - -
186 Miscellaneous deferred debits (Schedule IX) 109 78
188 Research, development, or
demonstration expenditures - -
190 Accumulated deferred income taxes 14,055 14,093
------- -------
Total Deferred Debits 14,164 14,171
------ -------
TOTAL ASSETS AND OTHER DEBITS 78,858 68,728
------ -------
- -------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
4
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
- -------------------------------------------------------------------------------------------
SCHEDULE I - COMPARATIVE BALANCE SHEET
- -------------------------------------------------------------------------------------------
ACCOUNT LIABILITIES AND PROPRIETARY CAPITAL AS OF DECEMBER 31
- -------------------------------------------------------------------------------------------
CURRENT PRIOR
---------- --------
PROPRIETARY CAPITAL
201 Common stock issued (Schedule XI) 100 100
211 Miscellaneous paid-in capital (Schedule XI) 101,932 92,926
215 Appropriated retained earnings (Schedule XI) - -
216 Unappropriated retained earnings (Schedule XI) (101,919) (80,315)
-------- -------
Total Proprietary Capital 113 12,711
-------- -------
LONG TERM DEBT
223 Advances from associate companies (Schedule XII) - -
224 Other long-term debt (Schedule XII) - -
225 Unamortized premium on long-term debt - -
226 Unamortized discount on long-term debt-debit - -
-------- -------
Total long-term debt - -
-------- -------
CURRENT AND ACCRUED LIABILITIES
231 Notes Payable - -
232 Accounts payable 13,387 13,342
233 Notes payable to associate companies (Schedule XIII)
- -
234 Accounts payable to associate companies
(Schedule XIII) 6,811 4,515
236 Taxes accrued 190 1,532
237 Interest accrued - -
238 Dividends declared - -
241 Tax collections payable 4 305
242 Miscellaneous current and accrued liabilities
(Schedule XIII) 56,962 35,198
------- -------
Total current and accrued liabilities 77,354 54,892
------- -------
DEFERRED CREDITS
253 Other deferred credits 1,391 1,125
255 Accumulated deferred investment tax credits - -
------- -------
Total Deferred Credits 1,391 1,125
------- -------
282 ACCUMULATED DEFERRED INCOME TAXES
TOTAL LIABILITIES AND PROPRIETARY CAPITAL
78,858 68,728
------- -------
- -------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
5
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL , INC.
For the Year Ended December 31, 1995
----------------------------------------------------------------------------------------------------------------
SCHEDULE II - COMPANY PROPERTY
----------------------------------------------------------------------------------------------------------------
START OF END OF
YEAR RETIRED OTHER YEAR
DESCRIPTION BALANCE ADDITION OR SOLD CHANGES BALANCE
----------------------------------------------------------------------------------------------------------------
COMPANY PROPERTY
Account
301 ORGANIZATION - 9 - - 9
303 MISCELLANEOUS INTANGIBLE PLANT
1,568 - - - 1,568
304 LAND AND LAND RIGHTS
210 - 210 - 0
305 STRUCTURES AND IMPROVEMENTS
- - - - -
306 LEASEHOLD IMPROVEMENTS 1/
796 65 3 858
307 EQUIPMENT 1/ , 2/ 3,774 670 53 - 4,391
308 OFFICE FURNITURE AND EQUIPMENT
1/ 1,746 113 19 - 1,840
309 AUTOMOBILES, OTHER VEHICLES
AND RELATED GARAGE EQUIPMENT
152 - 3 - 149
310 AIRCRAFT AND AIRPORT EQUIPMENT
- - - - -
311 OTHER COMPANY PROPERTY 3/
- - - - -
----- --- --- --- -----
SUB-TOTAL 8,246 857 288 - 8,815
----- --- --- --- -----
107 CONSTRUCTION WORK IN PROGRESS
4/ - - - - -
----- --- --- --- -----
TOTAL 8,246 857 288 - 8,815
----- --- --- --- -----
----------------------------------------------------------------------------------------------------------------
</TABLE>
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
Purchase of computer hardware: $ 670
Purchase of office furniture: 113
Lease of Additional Space: 65
2/ SUBACCOUNTS ARE REQUIRED FOR EACH CLASS OF EQUIPMENT OWNED. THE
COMPANY SHALL PROVIDE A LISTING BY SUBACCOUNT OF EQUIPMENT
ADDITIONS DURING THE YEAR AND THE BALANCE AT THE CLOSE OF THE YEAR:
- -------------------------------------------------------------------------------
BALANCE AT
CLOSE OF YEAR
SUBACCOUNT DESCRIPTION ADDITIONS
- -------------------------------------------------------------------------------
Computer Software - 1,568
Computer Hardware 667 4,391
- -------------------------------------------------------------------------------
3/ DESCRIBE OTHER COMPANY PROPERTY:
Reproduction equipment
4/ DESCRIBE CONSTRUCTION WORK IN PROGRESS:
Not Applicable
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
6
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL , INC.
For the Year Ended December 31, 1995
- ---------------------------------------------------------------------------------------------------------------------
SCHEDULE III
ACCUMULATED PROVISION FOR DEPRECIATION AND
AMORTIZATION OF COMPANY PROPERTY
- ---------------------------------------------------------------------------------------------------------------------
CHARGED OTHER CHANGES
START OF YEAR TO CHANGES END OF
YEAR ACCOUNT RETIRE- ADD YEAR
DESCRIPTION BALANCE 403 /2 MENTS (DEDUCT) BALANCE
- ---------------------------------------------------------------------------------------------------------------------
COMPANY PROPERTY
Account
301 ORGANIZATION - - - - -
303 MISCELLANEOUS
INTANGIBLE PLANT
1,095 114 - - 1,209
304 LAND AND LAND RIGHTS
- - - - -
305 STRUCTURES AND IMPROVEMENTS
- - - - -
306 LEASEHOLD IMPROVEMENTS
101 134 - - 235
307 EQUIPMENT 1,874 663 3 - 2,534
308 OFFICE FURNITURE AND FIXTURES
358 148 8 - 498
309 AUTOMOBILES, OTHER VEHICLES
AND RELATED GARAGE EQUIPMENT
57 42 3 - 96
310 AIRCRAFT AND AIRPORT EQUIPMENT
- - - - -
311 OTHER COMPANY PROPERTY
- - - - -
----- ----- --- --- -----
TOTAL 3,485 1,101 14 - 4,572
----- ----- --- --- -----
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
2/ Amortization expense of $6, included on Schedule XV is related to product
development and is charged to development expenditures (Account 188)
rather than accumulated depreciation.
<PAGE>
7
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE IV - INVESTMENTS
- -------------------------------------------------------------------------------
INSTRUCTIONS: Complete the following schedule concerning investments.
Under account 124, "Other Investments", state each
investment separately, with description, including the
name of issuing company, number of shares or principal
amount, ect.
- -------------------------------------------------------------------------------
BALANCE AT
BEGINNING OF BALANCE AT
DESCRIPTION YEAR CLOSE OF YEAR
- -------------------------------------------------------------------------------
ACCOUNT 124 - OTHER INVESTMENT 1/
Investment in Mobile Energy Services Co , LLC - 665
--- ---
TOTAL - 665
--- ---
- -------------------------------------------------------------------------------
1/ Southern Enterprises (Southern Development Investment Group) was spun off
of Southern Electric International, Inc. effective 1/1/95. Therefore, Southern
Enterprises is not reflected in the 1995 financial information.
<PAGE>
8
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE V - ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES
- -------------------------------------------------------------------------------
INSTRUCTIONS: Complete the following schedule listing accounts receivable from
each associate company. Where the company has provided
accommodation or convenience payments for associate companies, a
separate listing of total payments for each associate by
subaccount should be provided.
- -------------------------------------------------------------------------------
BALANCE AT
BEGINNING OF BALANCE AT
DESCRIPTION YEAR CLOSE OF YEAR
- -------------------------------------------------------------------------------
ACCOUNT 146 - ACCOUNTS RECEIVABLE FROM ASSOCIATE
COMPANIES:
Joint Venture - -
Alabama Power Co. 101 3
Georgia Power Co. 160
Gulf Power Co. - -
Mississippi Power Co. - -
Southern Company Services 1,084 611
The Southern Co. - 8,000
Southern Nuclear Operating Company 4 -
Southern Electric Wholesale Generators, Inc. 10
Southern Electric International Birchwood, Inc. 805
Southern Electric International Holdings, Inc. 78 38
Associadios - 10
Southern Electric Holdings III, Inc. 1,935 113
Electricidad - 10
Hidroelectric Alicura, S.A. 105 -
Mobile Energy Services Company (MESCO) 11,249 6,007
Mobile Energy Services Holding (MESH) - 21
Southern Energy Marketing, Inc. - 591
Southern Electric International Birchwood Dev. 16 -
Edelnor 882 1,566
SEI Chile S.A. - 60
Southern Electric Holdings, IX 5,440 660
Birchwood Power Partners 738 1,344
SEI Hawaii Cogenerators - 49
Southern Electric, Inc - 3
Southern Electric Holdings X 6 8
Southern Electric Holdings VIII 11 29
Electrica SEI Chile Limitada 590 498
Inversiones SEI Chile Limitada 362 306
Southern Investments Holding UK - 124
Southern Investments UK plc - 10
South Western Electricity plc - 506
Southern Electric Bahamas Holding, Ltd 468 1,265
Beteiligungs GmbH - 141
Southern Electric Holdings Europe (IV) 4 4,149
------ ------
TOTAL 24,048 26,122
------ ------
- -------------------------------------------------------------------------------
ANALYSIS OF CONVENIENCE OR ACCOMMODATION PAYMENTS: TOTAL
PAYMENTS
-------------
Not Applicable -
-------------
TOTAL PAYMENTS -
- -------------------------------------------------------------------------------
<PAGE>
9
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL , INC.
For the year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE IX - MISCELLANEOUS DEFERRED DEBITS
- -------------------------------------------------------------------------------
INSTRUCTION: Provide detail of items in this account. Items less than $10,000
may be grouped by class showing the number of items in each class.
- -------------------------------------------------------------------------------
BALANCE AT
BEGINNING OF BALANCE AT
DESCRIPTION YEAR CLOSE OF YEAR
- -------------------------------------------------------------------------------
ACCOUNT 186 - MISCELLANEOUS
DEFERRED DEBITS 1\
78 109
--- ---
TOTAL 78 109
--- ---
- -------------------------------------------------------------------------------
1\ Miscellaneous Deferred Debits: $ 109 for Income Tax Advances, "VAT"
credit, & Withholdings (Operadora).
<PAGE>
<TABLE>
<CAPTION>
10
<S> <C> <C> <C> <C> <C> <C>
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -----------------------------------------------------------------------------------------------------------------------
SCHEDULE XI
PROPRIETARY CAPITAL
- -----------------------------------------------------------------------------------------------------------------------
NUMBER OF
SHARES PAR OR STATED VALUE
ACCOUNT NUMBER CLASS OF STOCK AUTHORIZED PER SHARE OUTSTANDING CLOSE OF PERIOD
-----------------------------------
NO. OF SHARES TOTAL AMOUNT
-----------------------------------
201 COMMON STOCK ISSUED 1,000 $100 1,000 100
INSTRUCTIONS: Classify amounts in each account with brief explanation,
disclosing the general nature of transactions which give rise to
the reported amounts.
D E S C R I P T I O N AMOUNT
ACCOUNT 211 MISC. PAID IN CAPITAL 101,932
ACCOUNT 215 APPROPRIATED RETAINED EARNINGS
TOTAL 101,932
-------
BALANCE AT
BEGINNING OF NET INCOME OR BALANCE AT
D E S C R I P T I O N YEAR LOSS 1/ DIVIDENDS PAID CLOSE OF YEAR
- ----------------------------------- ----------------------------------------------------------------------------------
ACCOUNT 216 UNAPPROPRIATED RETAINED EARNINGS (79,883) (20,932) 1,104 (101,919)
TOTAL (79,883) (20,932) 1,104 (101,919)
------ ------ ----- --------
- -----------------------------------------------------------------------------------------------------------------------
1/ The actual net income from operations was ($20,500). Also, a retained
earnings adjustment of ($432) was booked relative to 1994 and Southern
Enterprises. In addition, effective 1/1/95, Southern Enterprises (Southern
Development Investment Group) was spun off of Southern Electric International,
Inc.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
11
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- ------------------------------------------------------------------------------------------------------------------------------
SCHEDULE XII
LONG-TERM DEBT
- ------------------------------------------------------------------------------------------------------------------------------
INSTRUCTIONS: Advances from parent and associate companies should be reported separately for advances on notes, and
advances on open accounts. Names of associate companies from which advances were received shall be shown
under the class and series of obligation column. For Account 224 - Other Long Term Debt provide the name of
creditor company or organization, terms of the obligation, date
of maturity, interest rate, and the amount authorized and
outstanding.
- ----------------------------------------------------------------------------------------------------------------------------
TERMS OF OBLIG BALANCE AT BALANCE
N A M E O F C R E D I T O R CLASS & SERIES DATE OF INTEREST AMOUNT BEGINNING (1) AT CLOSE
OF OBLIGATION MATURITY RATE AUTHORIZED OF YEAR ADDITIONS DEDUCTIONS OF YEAR
- ------------------------------------------------------------------------------------------------------------------------------
ACCOUNT 223 - ADVANCES FROM PARENT
AND ASSOCIATE COMPANIES: - - - -
ACCOUNT 224 - OTHER LONG -TERM DEBT:
Not Applicable
TOTAL - - - -
--- --- --- ---
- ------------------------------------------------------------------------------------------------------------------------------
(1) GIVE AN EXPLANATION OF DEDUCTIONS:
</TABLE>
<PAGE>
12
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XIII - CURRENT AND ACCRUED LIABILITIES
- -------------------------------------------------------------------------------
INSTRUCTIONS: Provide balance of notes and accounts payable to each associate
company. Give description and amount of miscellaneous current
and accrued liabilities. Items less than $10,000 may be grouped,
showing the number of items in each group.
- -------------------------------------------------------------------------------
BALANCE AT BALANCE AT
BEGINNING CLOSE
D E S C R I P T I O N OF YEAR YEAR
- -------------------------------------------------------------------------------
ACCOUNT 233 - NOTES PAYABLE TO ASSOCIATE
COMPANIES:
THE SOUTHERN COMPANY - -
----- ----
TOTAL - -
- -------------------------------------------------------------------------------
ACCCOUNT 234 - ACCOUNTS PAYABLE TO ASSOCIATE
COMPANIES"
Alabama Power Company 35 436
Georgia Power Company 511 1,127
Gulf Power Company - -
Mississippi Power Company 6 -
Southern Company Services 1,690 674
Southern Electric Wholesale Generators - -
Southern Elec Int'l. Hawaiian Cogenerators 347 -
Hidroelectric Alicura, S.A. 173 406
Birchwood Power Partners 1,748 3,291
South Western Electricity plc - 14
Mobile Energy Services Co, LLC - 850
SEI Birchwood - 3
Southern Enterprises - 10
Bemberg - -
Electricidad 5 -
----- -----
TOTAL 4,515 6,811
----- -----
- -------------------------------------------------------------------------------
ACCOUNT 242 - MISCELLANEOUS CURRENT AND
ACCRUED LIABILITIES:
Accrued Pensions 3,366 3,904
Scott Credit Union W/H 17 -
Alabama Credit Union W/H 2 -
Employee Flex Care 6 10
Accrued Post Retirement Medical 3,884 4,421
Accrued Bonuses - Home Office 2,420 2,930
Accrued Bonuses - Plant 144 138
Accrued Officers Incentives - 677
Accrued Incentive Payable 486 899
Employee Group Insurance Premiums Withheld 9 13
Billing in Excess of Cost on Uncompleted
Contracts 1/ 23,185 40,982
Vacation Clearing Current/Prior Year 917 1,472
Loss Provision 747 1,477
ESP and ESOP 3 -
MESCO Insurance / Union Dues 8 29
Miscellaneous 4 10
------ ------
TOTAL 35,198 56,962
- -------------------------------------------------------------------------------
1/ Primarily represents billings relating to the Birchwood Construction project.
<PAGE>
13-A
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
- -------------------------------------------------------------------------------
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
General
Southern Electric International, Inc. ("SEI" or the "Company"), a wholly
owned subsidiary of The Southern Company ("Southern"), is engaged in the
development, construction, operation and maintenance ("O&M"), and
ownership of cogeneration and independent power facilities in the United
States and internationally. The Company's affiliate construction
activities in Virginia (Note 6) represent approximately 86% of revenues,
while its O&M activities with unaffiliated entities in Nevada and New York
represent approximately 4% of revenues. SEI's global business development
efforts represent approximately 14% of the Company's operating expenses.
SEI owns 99% of SEI Operadora del Argentina, S.A., incorporated in 1993
for the purpose of providing operational and maintenance services to
Hidroelectrica Alicura, S.A., and 1% of Mobile Energy Services Company,
L.L.C. ("Mobile Energy"), formed in 1995 for the purpose of owning and
operating an energy and chemical recovery complex located in Mobile,
Alabama. SEI also owns 100% of Southern Electric International, Asia, Inc.
and 100% of Southern Electric International, GmbH, which were formed in
1995 for the purpose of business development in Asia and Europe,
respectively.
Accounting Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Basis of Presentation
The consolidated financial statements include the accounts of SEI and its
subsidiaries. All significant intercompany accounts and transactions have
been eliminated in consolidation. Certain prior year amounts have been
reclassified to conform with the current financial statement presentation.
Cash and Cash Equivalents
Investments with an original maturity of 90 days or less are classified as
cash and cash equivalents.
Property and Equipment
Property and equipment are recorded at cost. Depreciation and amortization
are provided using the straight-line method over the estimated economic
lives of the related assets (ranging from 3 years to 12 years). Leasehold
improvements are amortized over the shorter of the respective lease terms
or the useful lives of the improvements. The Company's capitalization
policy expenses the cost of certain immaterial assets when purchased.
Upon the retirement or sale of assets, the cost of such assets and the
related accumulated depreciation are removed from the balance sheet and
the gain or loss, if any, is credited or charged to income.
<PAGE>
13-B
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any accounts thereof. Furnish particulars
as to any significant contingent assets or liabilities existing
at the end of the year. Notes relating to financial statements
shown elsewhere in this report may be indicated here by
reference.
- -------------------------------------------------------------------------------
Project Development Costs
SEI capitalizes and simultaneously fully reserves for development costs
for projects in which a milestone has not yet been achieved but whose
likelihood of success is probable. It is reasonably possible that the
estimated reserve will be reduced significantly in the near term due to
successful project development efforts, which would have a beneficial
impact on earnings.
Income Taxes
The Company provides deferred income taxes for all significant income tax
temporary differences in accordance with Financial Accounting Standards
Board Statement of Financial Accounting Standards ("SFAS") No. 109,
"Accounting for Income Taxes." SFAS No. 109 requires, among other things,
the use of an asset and liability method for the recognition of deferred
tax liabilities and assets.
Revenue Recognition
Revenues from construction contracts are recognized using the
percentage-of-completion method. The extent of progress toward completion
is measured by comparing the percentage of costs incurred to date to total
estimated costs on each contract. Provisions for estimated losses on
uncompleted contracts are charged to income in full when such losses
become probable and are reasonably estimable. Estimates used in
calculating the percentage-of-completion revenue recognition for the
affiliate construction in Virginia (Note 6) are likely to change in the
near term as construction is planned for completion during 1996. Other
service revenues are recognized when earned.
2. EMPLOYEE BENEFITS
Pension Plan
SEI participates in the Pension Plan for Employees of Southern Company
Services, Inc., a defined benefit, trusteed, noncontributory plan covering
substantially all regular employees. Certain union employees engaged in
the operations and maintenance contract with Mobile Energy (Note 6)
participate in a separate pension plan.
<PAGE>
<TABLE>
<CAPTION>
The following table sets forth SEI's defined benefit plans' funded status
as of December 31, 1995 and 1994 (in thousands):
<S> <C> <C>
1995 1994
----- ----
Actuarial present value of benefit obligations:
Vested benefits $ (8,980) $ (6,103)
Nonvested benefits (1,055) (471)
Accumulated benefit obligation (10,035) (6,574)
Additional amounts related to projected salary increases (4,196) (3,665)
-------- --------
Projected benefit obligation (14,231) (10,239)
Less:
Fair value of plan assets, primarily equity and fixed income securities
10,125 7,053
Unrecognized net gain (391) (333)
Unrecognized net transition obligation 138 157
Unrecognized prior service cost (63) (69)
-------- --------
Accrued pension costs recognized in the balance sheets $ (4,422) $ (3,431)
======== ========
</TABLE>
13-C
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
- -------------------------------------------------------------------------------
The actuarial present value of the projected benefit obligation for the plans
was determined using a discount rate of 7.25% for 1995 and 8% for 1994 and a
rate of increase in future compensation levels of 4.75% for 1995 and 5.5% for
1994. The expected long-term rate of return on assets was 8.5% for 1995 and
1994.
The net periodic pension cost for 1995 and 1994 included the following
components (in thousands):
1995 1994
Service cost--benefits earned $ 794 $558
Interest cost on projected benefit obligation 801 395
Actual return on plan assets (1,604) 87
Net amortization and deferrals 1,058 (382)
------ ----
Net periodic pension cost $1,049 $658
====== ====
Postretirement Benefits
SEI also provides certain medical care and life insurance benefits for retired
employees. Substantially all employees may become eligible for these benefits
when they retire.
Effective January 1, 1993, the Company adopted SFAS No. 106, "Employers
Accounting for Postretirement Benefits Other Than Pensions." SFAS No. 106
requires that medical care and life insurance benefits for retired employees be
accounted for on an accrual basis using a specified actuarial method,
benefit/years-of-service. The costs of such benefits recognized by the Company
in 1995 and 1994 were approximately $656,076 and $311,000, respectively.
<PAGE>
<TABLE>
<CAPTION>
The funded status of the medical and life plans at December 31, 1995 and 1994
was as follows (in thousands):
<S> <C> <C>
1995 1994
Medical Life Medical Life
------- ------ ------- ------
Actuarial present value of benefit obligation:
Retirees and dependents $ 119 $135 $ 109 $134
Employees eligible to retire 604 60 547 54
Other 2,261 454 2,410 505
Accumulated benefit obligation 2,984 649 3,066 693
Unamortized prior service cost 769 245 0 0
Unrecognized net (loss) gain (191) (35) 100 63
Accrued liability recognized in the balance sheets ------ ---- ------ ----
$3,562 $859 $3,166 $756
====== ==== ====== ====
</TABLE>
The discount, future compensation, and expected long-term return on assets rates
used for the pensions described above were also used in measuring the
postretirement benefit obligation. The weighted average medical care cost trend
rate was 9.8 % for 1995, decreasing gradually to 5.3% through the year 2005 and
remaining at that level thereafter. An annual increase in the assumed medical
care cost trend rate by 1% would increase the accumulated postretirement benefit
obligation for the medical portion of the plan as of December 31, 1995 by
approximately $321,000 and the aggregate of the service cost and interest cost
components of the net retiree medical cost by approximately $107,000.
<PAGE>
13-D
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding
the financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes
relating to financial statements shown elsewhere in this
report may be indicated here by reference.
- -------------------------------------------------------------------------------
The components of the plans' net costs are shown below (in thousands):
1995 1994
Medical Life Medical Life
------- ---- ------- ----
Benefits earned during the year $267 $ 69 $200 $52
Interest costs on accumulated projected
benefit obligation 238 57 85 31
---- ---- ---- ---
Net postretirement costs $505 $126 $285 $83
==== ==== ==== ===
Deferred Compensation Plans
In 1993, SEI began to partially compensate certain senior officers through
a stock formula plan, which seeks to reward individuals for the
performance of the investments of SEI and its affiliated companies over a
period of four years, relative to the performance of Southern. Units are
awarded annually by the SEI board of directors, the initial value of which
is based on the closing price of Southern common stock on the date prior
to the unit awards. The value of the units during the subsequent four
years generally depends upon SEI's return on equity relative to that of
Southern (excluding SEI), SEI's reliance on Southern for equity funding
and financial guarantees, and SEI's ability to provide cash dividends to
Southern. The original value of units awarded for the past three years,
the first of which will vest in January 1997, is as follows (in
thousands):
1993 $ 202
1994 475
1995 914
-----
Total $1,591
======
As the value of the units is not known until the vesting date, SEI
accounts for this formula plan as a variable plan; as such, the Company
regularly assesses the current value of the awards and adjusts its accrued
liability accordingly. At December 31, 1995 and 1994, the Company had
accrued approximately $677,000 and $235,000, respectively, related to this
plan, which are included in long-term liabilities in the accompanying
consolidated balance sheets.
In addition to the stock formula plan for senior officers, SEI partially
compensates employees associated with a specific successful project bid
effort through a deferred cash compensation program. Upon successful
completion of a bid, members directly affiliated with the effort receive a
cash bonus, half of which is paid immediately and half of which is
deferred for a period of two years and paid based on the actual
performance of the related investment. SEI accrues amounts at the time the
award is granted and adjusts the liability accordingly when awards vest
and are paid. At December 31, 1995 and 1994, the Company had accrued
approximately $486,000 and $898,000, respectively, related to this plan,
which is included in other accrued liabilities in the accompanying
consolidated balance sheets. SEI paid approximately $313,000 to employees
under this plan during 1995 related to successful bids in 1993; no
payments were made under this plan during 1994.
<PAGE>
13-E
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding
the financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes
relating to financial statements shown elsewhere in this
report may be indicated here by reference.
- -------------------------------------------------------------------------------
3. OPERATING LEASES
SEI has entered into noncancelable operating leases for office space. The
expenses under these leases were approximately $1,753,000 in 1995 and
$804,000 in 1994. These leases contain certain concessions and
escalations; therefore, rent expense is recognized on a straight-line
basis over the lease terms. The future rental obligations for the
remaining lease terms are as follows (in thousands):
1996 $1,040
1997 1,085
1998 1,118
1999 1,151
2000 1,082
Thereafter 0
------
Total minimum lease commitments $5,476
======
4. INCOME TAXES
A detail of the benefit for income taxes is set forth below (in
thousands):
1995 1994
--------- ---------
Current benefit $ 6,174 $ 7,654
Deferred benefit 4,760 3,163
------- -------
$10,934 $10,817
======= =======
The tax effects of temporary differences between the carrying amounts of
assets and liabilities in the financial statements and their respective
bases, which give rise to deferred tax assets and liabilities, are as
follows:
<TABLE>
<CAPTION>
<S> <C> <C>
1995 1994
Deferred Deferred Deferred Deferred
Tax Tax Tax Tax
Assets Liabilities Assets Liabilities
--------- ----------- -------- -----------
Accelerated depreciation $ 0 $ 217 $ 0 $ 117
Costs in excess of billings for contracts 189 0 133
0
Billings in excess of costs for contracts 582 0 1,069 0
Contract loss provisions 370 0 1,342 0
Deferred bidding expenses 7,856 0 7,653 0
Other 7,950 1,356 4,356 807
------- ------ ------- ------
Total 16,758 1,762 14,420 1,057
Less current portion 2,595 773 5,782 218
------- ------ ------- ------
Total noncurrent $14,163 $ 989 $ 8,638 $ 839
======= ====== ======= ======
</TABLE>
<PAGE>
13-F
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding
the financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes
relating to financial statements shown elsewhere in this
report may be indicated here by reference.
- --------------------- ---------------------------------------------------------
A reconciliation of the statutory federal tax rate to the effective federal
tax rate is as follows:
1995 1994
---- ----
Effective tax rate 35% 35%
Other, net 0 0
---- ---
Statutory federal tax rate 35% 35%
==== ===
SEI and the other subsidiaries of Southern file a consolidated federal tax
return. Under a joint consolidated income tax agreement, each company's
current and deferred tax expense is computed on a stand-alone basis. Under
this agreement, SEI received tax refunds from Southern of approximately
$8,740,000 and $11,800,000 during 1995 and 1994, respectively.
Approximately $533,000 of the receivables from associated companies
balances at December 31, 1995 is comprised of tax refunds under the joint
consolidated income tax agreement.
5. CONCENTRATION OF REVENUES
During the years ended December 31, 1995 and 1994, revenues generated from
contracts with affiliates accounted for approximately 89% and 85%,
respectively, of revenue earned.
6. RELATED-PARTY TRANSACTIONS
Additional Equity Contributions
During 1995, Southern contributed approximately $9,000,000 to paid-in
capital. Effective May 26, 1994, Southern converted $25,100,000 in
principal amount of notes payable to Southern to equity. This amount was
recorded as an increase in paid-in capital during the year ended December
31, 1994.
Construction Activities
During 1994, SEI was engaged by an affiliated company to construct a
coal-fired cogeneration facility and related greenhouse in King George
County, Virginia, the construction of which is scheduled for completion
during 1996. The fixed contract price for the construction of these
facilities is $292,040,000, and at December 31, 1995 the Company had
incurred approximately $212,000,000 in related expenses. Substantially all
of the balance of billings in excess of costs and estimated earnings on
contracts at December 31, 1995 is related to these construction
activities.
Services
SEI has agreements with Southern Company Services, Inc. and each of the
system operating companies under which those companies provide the
following services to SEI at cost: general engineering, design
engineering, accounting and statistical budgeting, business promotion and
public relations, systems and procedures, training, and administrative and
financial services. In addition to these services, certain facilities of
the system companies are made available to SEI and its customers. SEI
reimburses the service company and the various operating companies at cost
for these services. Such costs amounted to approximately $15,500,000 and
$15,000,000 in 1995 and 1994, respectively.
<PAGE>
13-G
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
- -------------------------------------------------------------------------------
SEI has a contract with Mobile Energy, an affiliated entity (Note 1), to
operate and maintain an energy complex in Mobile, Alabama for a period of
25 years at cost. SEI has a similar agreement with Birchwood Power
Partners, L.P. ("BPP") to operate and maintain its 220 megawatt coal-fired
cogeneration facility located in King George County, Virginia, for a
period of 25 years for a fee of $120,000 per year, adjusted annually for
inflation. The agreement with BPP will commence when SEI has completed
construction of the facility, which is planned for November 1996.
7. WOOD GASIFICATION PROJECT
During 1991, SEI recorded a loss provision of approximately $20,903,000
related to its wood gasification project with a paper company in Macon,
Georgia. The provision included asset write-offs and an estimate of future
costs to terminate the project. Subsequent to 1991, the loss provision was
reduced as termination costs were incurred and when SEI reached an
agreement to terminate the project and remove its leased equipment from
the paper plant in exchange for a $2,000,000 payment.
On March 31, 1994, SEI purchased the equipment from the lessor for
$7,444,000. As a result of the sale, the reserve for loss on the wood
gasification project was reduced by approximately $7,906,000 during 1994.
The remaining equipment was retained by an affiliated company during 1995.
8. CONTINGENCIES
Litigation With Former President
In October 1991, a former SEI president filed suit in the Superior Court
of DeKalb County (Georgia) against Southern, SEI, and an executive vice
president of Southern. The plaintiff alleged defamation, breach of
contract, and intentional infliction of emotional distress arising from
his termination as president of SEI. Judgment in favor of the plaintiff
was awarded by the court during 1994 in the amount of $2,700,000, plus
legal costs of approximately $2,000,000. In 1994, SEI filed an insurance
claim for an amount equal to the total judgment. The Company's insurer has
elected to appeal the Superior Court's judgment. In the opinion of
management, any portion of the judgment ultimately deemed uninsurable will
not have a material adverse impact on the results of operations or
financial position of the Company.
Labor Subject to Collective Bargaining Agreements
Substantially all of the employees engaged in the operations and
maintenance contract with Mobile Energy are subject to collective
bargaining agreements, none of which expire during 1996.
Other Matters
The Company is subject to other legal actions and claims arising in the
ordinary course of business. In the opinion of management, the disposition
of these matters will not have a material adverse impact on the results of
operations or financial position of the Company.
9. DISCONTINUED OPERATIONS
During 1993, SEI adopted a plan to dispose of certain noncore consulting
operations of the Company. The net assets of these operations were
transferred to Southern during 1995 in the form of a tax-free dividend. As
such, no gain or loss was recorded on the disposal of these discontinued
operations. The results of operations and net assets attributable to these
consulting services are presented as discontinued operations in the
accompanying consolidated statements of operations and balance sheets.
<PAGE>
14
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XV
STATEMENT OF INCOME
- -------------------------------------------------------------------------------
CURRENT PRIOR
ACCOUNT D E S C R I P T I O N YEAR YEAR
- -----------------------------------------------------------------------------
INCOME
457 Charges rendered to associate companies - 134
458 Services rendered to non-associate companies 181,218 105,517
421 Miscellaneous income or loss 722 590
------- -------
Total Income 181,940 106,241
-------- -------
EXPENSES
920 Salaries and wages 22,682 12,855
921 Office supplies and expenses 6,612 5,514
922 Administrative expense transferred - credit (4,317) (4,092)
923 Outside services employed 157,401 113,670
924 Property insurance 423 425
925 Injuries and damages 303 148
926 Employee pensions and benefits 7,495 4,145
928 Disposition of intellectual property - -
930.1 General advertising expense 37 33
930.2 Miscellaneous general expenses 777 622
931 Rents 2,048 1,573
932 Maintenance of structures and equipment 13,459 311
403 Depreciation and amortization expense 1,107 1,332
408 Taxes other than income taxes 3,917 1,355
409 Income taxes (6,077) (8,560)
410 Provision for deferred income taxes (1,189) (922)
411 Provision for deferred income taxes - credit (3,667) (1,568)
411.5 Investment tax credit - -
Foreign taxes 168 169
426.1 Donations 1,008 77
426.5 Other deductions 4 1
427 Interest on long-term debt 249 -
430 Interest on debt to associate companies - -
431 Other interest expense - -
-------- -------
Total Expense 202,440 127,088
-------- -------
Net Income or (Loss) (20,500) (20,847)
-------- -------
INSTRUCTION: Provide a schedule briefly describing types of intercompany
transactions.
TRANSACTIONS WITH ASSOCIATE COMPANIES
SEI has agreements with Southern Company Services, Inc. and each of the system
operating companies under which those companies provide the following services
to SEI at cost: general engineering, design engineering, accounting and
statistical, rates, budgeting, business promotion and public relations, systems
and procedures, training, administrative, and financial services. In addition to
these services, certain facilities of the system companies are made available to
SEI and its customers.
The service company and operating companies provide technical direction and
management of the services provided to SEI and its customers. SEI reimburses the
service company and operating companies at cost for these services.
<PAGE>
15
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
ANALYSIS OF BILLINGS
CHARGES FOR INTELLECTUAL PROPERTY TO
ASSOCIATE COMPANIES
ACCOUNT 457
- -------------------------------------------------------------------------------
TOTAL
NAME OF ASSOCIATE COMPANY AMOUNT
BILLED
- -------------------------------------------------------------------------------
Not Applicable
---------
TOTAL -
- -------------------------------------------------------------------------------
<PAGE>
16
- -------------------------------------------------------------------------------
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
ANALYSIS OF BILLING
NON-ASSOCIATE COMPANIES
ACCOUNT 458
- -------------------------------------------------------------------------------
DESCRIPTION TOTAL COST EXCESS OR TOTAL AMOUNT
DEFICIENCY BILLED
- -------------------------------------------------------------------------------
Consulting & Engineering 1/ 9,637 1,567 11,204
Information Systems - - -
Nuclear - - -
Franchises & Other - - -
Operations 34,390 1,453 35,843
Project Management 253 (253) -
Construction 132,006 616 132,622
Pooled Inventory Management (PEICO) - - -
Good Cents - - -
------- ------ -------
TOTAL 179,286 3,383 179,669
------- ------ -------
INSTRUCTION: Provide a brief description of the sales and services rendered by
category in accordance with your sales and service contracts and
list the amounts applicable per category.
- -------------------------------------------------------------------------------
1/ Consulting & Engineering includes Revenues and Costs relative to the Virgin
Islands Storm Restoration project as a result of Hurrican Marilyn. The
totals for 1995 are as follows:
Costs 5,046
Exess / Efficiency 688
------
Amount Billed 5,734
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
17
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
SCHEDULE XVII
SCHEDULE OF EXPENSE DISTRIBUTION
BY DEPARTMENT OR SERVICE FUNCTION
- --------------------------------------------------------------------------------------------------------------------------------
D E S C R I P T I O N O F I T E M S TOTAL D E P A R T M E N T O R S E R V I C E F U N C T I O N
AMOUNT OVERHEAD SEI Operadora Asia GmbH
- --------------------------------------------------------------------------------------------------------------------------------
920 SALARIES AND WAGES 22,682 22,646 - 36 -
921 OFFICE SUPPLIES AND EXPENSES 6,612 6,590 - 22 -
922 ADMIN EXP TRANSFERRED - CREDIT (4,317) (4,317) - - -
923 OUTSIDE SERVICES EMPLOYED 157,401 157,027 354 20 -
924 PROPERTY INSURANCE 423 423 - - -
925 INJURIES AND DAMAGES 303 303 - - -
926 EMPLOYEE PENSIONS AND BENEFITS 7,495 7,495 - - -
928 DISPOSITION OF INTELLECTUAL PROP. - - - - -
930.1 GENERAL ADVERTISING EXPENSE 37 37 - - -
930.2 MISCELLANEOUS GENERAL EXPENSE 777 326 - 1 450
931 RENTS 2,048 1,739 - 309 -
932 MAINTENANCE OF STRUCTURES & EQUIP 13,459 13,459 - - -
403 DEPRECIATION & AMORTIZATION EXP 1,107 1,093 - 14 -
408 TAXES OTHER THAN INCOME TAX 3,917 3,917 - - -
409 INCOME TAXES (6,077) (6,077) - - -
410 PROVISION FOR DEFERRED INCOME TAX (1,189) (1,189) - - -
411 PROV DEFERRED INCOME TAX - CREDIT (3,667) (3,667) - - -
FOREIGN TAXES 168 - 168 - -
411.5 INVESTMENT TAX CREDIT - - - - -
426.1 DONATIONS 1,008 1,008 - - -
426.5 OTHER DEDUCTIONS 4 4 - - -
427 INTEREST ON LONG TERM DEBT 249 249 - - -
430 INTEREST ON DEBT TO ASSOCIATE CO. - - - - -
431 OTHER INTEREST EXPENSE - - - - -
INSTRUCTION: Indicate each department or
service function. (See instruction 01-3
Gen'l Structure of Acc'ting Structure
System: Uniform System Account.
TOTAL EXPENSES 202,440 201,066 522 402 450
------- ------- --- --- ---
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
18
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31, 1995
- -------------------------------------------------------------------------------
SCHEDULE XVII
SCHEDULES OF EXPENSE DISTRIBUTION
BY DEPARTMENT OR FUNCTION
- -------------------------------------------------------------------------------
ACCOUNT NUMBER D E P A R T M E N T O R F U N C T I O N
- -------------------------------------------------------------------------------
920 Not needed
921
922
923
924
925
926
928
930.1
930.2
931
932
403
408
409
410
411
411.5
426.1
426.5
427
430
431
- -------------------------------------------------------------------------------
<PAGE>
19
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
DEPARTMENTAL ANALYSIS OF SALARIES
ACCOUNT 920
- -------------------------------------------------------------------------------
SALARY NUMBER
NAME OF DEPARTMENT OR SERVICE FUNCTION EXPENSE PERSONNEL
Indicate each department or service function. TOTAL AMOUNT END OF YEAR
SOUTHERN ELECTRIC INTERNATIONAL 22,682 431
TOTAL 22,682 431
------ ----
- -------------------------------------------------------------------------------
<PAGE>
20
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
DISPOSITION OF INTELLECTUAL PROPERTY
ACCOUNT 928
- -------------------------------------------------------------------------------
INSTRUCTIONS: Provide a listing of the amount included in Account 928,
"Disposition of Intellectual Property", classifying such expenses
by associate company receiving compensation for Disposition of
Intellectual Property.
- -------------------------------------------------------------------------------
A S S O C I A T E C O M P A N Y AMOUNT
- -------------------------------------------------------------------------------
Not Applicable
------
TOTAL -
------
- -------------------------------------------------------------------------------
<PAGE>
21
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
MISCELLANEOUS GENERAL EXPENSES
ACCOUNT 930.2
- -------------------------------------------------------------------------------
INSTRUCTIONS: Provide a listing of the amount in Account 930.2, "Miscellaneous
General Expenses", classifying such expenses according to
their nature. Payments and expenses permitted by Section 321 (b)
(2) of the Federal Election Campaign Act, as amended by Public
Law 94-283 in 1976 (2 U.S.C.S. 441 (b) (2) shall be
separately classified.
- -------------------------------------------------------------------------------
D E S C R I P T I O N AMOUNT
- -------------------------------------------------------------------------------
Dues and Memberships 116
Miscellaneous General Expense 646
Bad Debt Expense 15
------
TOTAL 777
- -------------------------------------------------------------------------------
<PAGE>
22
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
TAXES OTHER THAN INCOME TAXES
ACCOUNT 408
- -------------------------------------------------------------------------------
INSTRUCTIONS: Provide an analysis of Account 408, "Taxes Other Than Income
Taxes". Separate the analysis into two groups: (1) other
than U.S. Government taxes, and (2) U.S. Government taxes.
Specify each of the various kinds of taxes and show the amounts
thereof. Provide a subtotal for each class of tax.
- -------------------------------------------------------------------------------
K I N D O F T A X AMOUNT
- -------------------------------------------------------------------------------
Other than U.S. Government:
State Unemployment 74
Real Estate and Personal Property 78
Other State and Local Taxes and Licenses 192
Sales Tax 476
Argentina Withholding Tax expense 600
Chile Withholding Tax expense 759
Mexico Expatriate Social Security Tax - Employer -
Australia Expatriate Income tax - Employer 42
Puerto Rico Income Tax - Employee Differential -
Austria Income Tax - Employee Differential 13
Use Tax -
Expatriate Taxes 11
-----
Subtotal 2,245
-----
U. S. Government:
FICA - Employers Portion 1,647
FUTA 25
-----
Subtotal 1,672
-----
-----
TOTAL 3,917
- -------------------------------------------------------------------------------
<PAGE>
23
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
DONATIONS
ACCOUNT 426.1
- -------------------------------------------------------------------------------
INSTRUCTIONS: Provide a listing of the amount included in Account 426.1
"Donations", classifying
such expenses by its purpose. The aggregate number and
amount of all items less than $3,000 may be shown in lieu
of details.
- -------------------------------------------------------------------------------
NAME OF RECIPIENT PURPOSE OF DONATION AMOUNT
- -------------------------------------------------------------------------------
19 Items (Less than $3,000 each) Employer Gift Matching Contributions 5
Set up Charitable Contribution Trust 1,000
United Way of Metropolitan Atlanta Corporate Contribution - UW campaign 3
-----
TOTAL 1,008
- -------------------------------------------------------------------------------
<PAGE>
24
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
OTHER DEDUCTIONS
ACCOUNT 426.5
- -------------------------------------------------------------------------------
INSTRUCTIONS: Provide a listing of the amount included in Account 426.5 "Other
Deductions", classifying such expenses according to their nature.
AMOUNT
D E S C R I P T I O N NAME OF PAYEE BILLED
- ------------------------------------------------------------------------------
State & Local - Penalties /Fines -
Federal - Penalties / Fines Internal Revenue Service 4
----
TOTAL 4
- -------------------------------------------------------------------------------
<PAGE>
25
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
SCHEDULE XVIII
NOTES TO STATEMENT OF INCOME
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
statement of income or any account thereof. Furnish particulars
as to any significant increase in services rendered or expenses
incurred during the year. Notes relating to financial
statements shown elsewhere in this report may be indicated here
by reference.
- -------------------------------------------------------------------------------
NOT APPLICABLE
- -------------------------------------------------------------------------------
<PAGE>
26
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
For the Year Ended December 31,1995
- -------------------------------------------------------------------------------
SCHEDULE XIX
OUTSIDE SERVICES EMPLOYED 923
- -------------------------------------------------------------------------------
INSTRUCTIONS: Provided below is a break down of outside services employed.
- -------------------------------------------------------------------------------
1995 1994
---- ----
Legal Fees 6,231 6,196
Accounting and Audit Fees 582 156
Alabama Power Company 1,969 452
Georgia Power Company 3,334 2,945
Gulf Power Company 190 13
Mississippi Power Company 103 78
Southern Company Services 9,732 18,613
Savannah Electric Company 129 -
Other Outside Companies 1\ 135,131 85,159
Joint Venture SEI/Daniel - 58
------- -------
157,401 113,670
- -------------------------------------------------------------------------------
1\ Detail of Other Ouside Companies for 1994 is as follows:
Engineering 516
Computer consulting (28)
Temporary office services 248
Consulting (non financial) 6,547
Construction subcontractors (Birchwood) 124,392
Other plant operations 14
Financial consulting 326
Operadora expenses 354
Asia expenses 20
Other 2,742
-------
135,131
<PAGE>
27
ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
ORGANIZATION CHART OF SOUTHERN ELECTRIC INTERNATIONAL, INC.
Tom Boren/President and CEO
S. Marce Fuller/Vice President, Domestic Division
Mark S. Lynch/Vice President, Construction and Project Development
Raymond D. Hill/Senior Vice President Corporate Services Division and
Chief Financial Officer
William A. Maner, III/Vice President
J.R. Harris/Vice President, External Affairs
Richard J. Pershing/Senior Vice President, International Division and
Assistant Secretary
Tommy Chisholm/Vice President and Secretary
David T. Gallaspy/Vice President, Business Development Asia and Pacific Rim
J. William Holden, III/Vice President. Operations and Development Latin
America & Caribbean
Ronald E. Leggett/Vice President. O&M and Engineering Services
William L. Westbrook/Vice President
Charles W. Whitney/Vice President
James A. Ward/Controller
Karl E. Olsoni/Treasurer
ORGANIZATION CHART OF SEI OPERADORA DE ARGENTINA, S.A.
J. William Holden, III/ President of the Board
Mariano F. Grondona/Secretary of the Board
EXHIBIT B-10
MISSISSIPPI POWER COMPANY
BY-LAWS
AMENDED: April 2, 1996
<PAGE>
MISSISSIPPI POWER COMPANY
BYLAWS
ARTICLE I
Stockholders
SECTION 1.01. Annual Meeting.
The annual meeting of the shareholders of the Corporation for the
election of directors and for the transaction of such other corporate business
as may properly come before such meeting shall be held at the Corporation's
office at Gulfport, in the State of Mississippi, or at such other place within
or without the State of Mississippi as the Chairman of the Board, the President
or the Board of Directors may determine on the first Tuesday in April in each
year; provided, however, that the Chairman of the Board, the President or the
Board of Directors may fix an earlier day for such annual meeting of
shareholders in any particular year; and provided further that, if the day fixed
for such annual meeting of shareholders is a legal holiday, such meeting shall
be held on the first day thereafter which is not a legal holiday. [79-4-7.01]
SECTION 1.02. Special Meetings.
Subject to the provisions of Article Fourth of the Corporation's
Articles of Incorporation, special meetings of the shareholders of the
Corporation may be held at such time and at such place within or without the
State of Mississippi as the Chairman of the Board, the President or the Board of
Directors may determine. A special meeting may be called at any time by the
Chairman of the Board, the President, the Board of Directors, the Executive
Committee or shareholders holding one-tenth of the then outstanding capital
stock entitled to vote. [79-4-7.02]
SECTION 1.03. Notice of Meetings of Stockholders.
Written or printed notice stating the place, day and hour of the
meeting and, in case of a special meeting, the purpose or purposes for which the
<PAGE>
meeting is called, shall be delivered by the Secretary or the other officer
performing his duties, or the officer or persons calling the meeting not less
than ten nor more than fifty days before the meeting, either personally or by
mail, to each shareholder of record entitled to vote. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the stock transfer
books of the Corporation, with postage prepaid. [79-4-7.05] Whenever any notice
is required to be given to any shareholder, a waiver thereof in writing signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be equivalent to the giving of such notice.
[79-4-7.06]
SECTION 1.04. Fixing Date for Determination of Stockholders of Record.
In order to determine the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other purpose, the Board of Directors may provide that the
stock transfer books of the Corporation shall be closed for a stated period but
not to exceed fifty (50) days. If the stock transfer books shall be closed for
the purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting. In lieu of closing the stock transfer books,
the Board of Directors may fix, in advance, a record date for any such
determination of shareholders, which shall not be more than fifty (50) days and,
in case of a meeting of shareholders, not less than ten (10) days prior to the
date on which the particular action requiring such determination of shareholders
is to be taken. If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such dividend is adopted
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
2
<PAGE>
has been made as provided in this section, such determination shall apply to any
adjournment thereof. [79-4-7.07 & 79-4-7.20(a)]
SECTION 1.05. Quorum.
Subject to the provisions of Article Fourth of the Corporation's
Articles of Incorporation, at all meetings of shareholders, the holders of a
majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum for the transaction of any business. If a quorum is
present, the affirmative vote of the majority of the shares represented at the
meeting and entitled to vote on the subject matter shall constitute the act of
shareholders. [79-4-7.25]
SECTION 1.06. Voting Rights of Shareholders.
Each shareholder of record entitled to vote in accordance with the laws
of the State of Mississippi, the Corporation's Articles of Incorporation, or
these Bylaws, shall at every meeting of shareholders be entitled to one vote in
person or by proxy for each share of stock entitled to vote, but no proxy shall
be valid after eleven months from the date of its execution, unless otherwise
provided in the proxy. [79-4-7.21 & 79-4-7.22]
SECTION 1.07. Voting List -
Shareholder Examination.
The officer or agent having charge of the stock transfer books for
shares of the Corporation shall make, at least ten (10) days before each meeting
of shareholders, a complete list of the shareholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each, which list, for a period of
ten (10) days prior to such meeting, shall be kept on file at the registered
office of the Corporation and shall be subject to inspection by any shareholder
at any time during usual business hours. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting. No
3
<PAGE>
shareholder shall be entitled to inspect any such list or the stock transfer
books unless such inspection shall be made in good faith for a proper purpose.
The original stock transfer books shall be prima facie evidence as to who are
the shareholders entitled to examine such list or transfer books or to vote at
any meeting of shareholders. [79-4-7.20(b)-(d)]
Failure to comply with the requirements of this section shall not
affect the validity of any action taken at such meeting. [79-4-7.20(e)]
SECTION 1.08. Consent in Lieu of Meeting.
Any corporate action either required or permitted by the Business
Corporation Act of Mississippi, the Corporation's Articles of Incorporation, or
these Bylaws, to be taken at a meeting of the shareholders, may be taken without
a meeting if a consent in writing, setting forth the action so taken, shall be
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof. [79-4-7.04(a)]
ARTICLE II
Directors
SECTION 2.01. Management of Business.
The business and affairs of the Corporation shall be managed by the
Board of Directors. The provisions of this Article II shall be subject
to Article Fourth of the Corporation's Articles of
Incorporation. [79-4-8.01(b)]
SECTION 2.02. Number and Qualification of Directors.
The number of directors shall be not less than three nor more than
fifteen, the number to be fixed at the annual or any special meeting of the
stockholders entitled to vote for the election of directors, but no decrease
shall have the effect of shortening the term of any incumbent director.
[79-4-8.03(a)-(c)]
Directors need not be residents of Mississippi or shareholders of the
Corporation. [79-4-8.02]
4
<PAGE>
No person who is engaged or interested in a competing business either
individually or as employee or stockholder, shall serve as a director without
the consent of a majority of interest of the stockholders. [79-4-8.31]
A person being a full-time executive employee of the Corporation or its
parent company or any affiliated company when first elected a director of the
Corporation (hereinafter sometimes referred to as an "employee-director") shall
not be eligible to serve as a director when he ceases to be an executive
employee, whether by reason of resignation, retirement or other cause; and a
person not an employee-director shall not be eligible to serve as a director of
the Corporation after his 70th birthday. Any employee-director who is not
eligible to serve as a director by reason of the foregoing provisions shall be
eligible to serve as an advisory director until he shall have reached his 70th
birthday, if elected or re-elected by the Board of Directors, upon the
recommendation of the Chief Executive Officer of the Corporation. The term of
office of each advisory director shall terminate on the earlier of the date when
he ceases to be eligible for such position or, subject to reappointment, the
date of the first meeting of the Board of Directors after the annual meeting of
stockholders next following his appointment. Any person eligible for election as
an advisory director must be one whose services as such will be, in the opinion
of the Board of Directors, of value to the Corporation. An advisory director
shall be entitled to notice of, to attend, and to advise but not to vote at
meetings of the Board of Directors and of any committees thereof to which he
shall be appointed. An advisory director shall not be counted in determining the
existence of a quorum, and for his services may be paid, in the discretion of
the Board of Directors, compensation and reimbursement of expenses on the same
basis as if he were a director.
SECTION 2.03. Election and Term.
The directors shall be elected at the annual meeting of shareholders,
and each director shall be elected to hold office until his successor shall be
5
<PAGE>
elected and qualified, or until his earlier resignation or removal. The Board of
Directors, as soon as may be convenient after the election of directors in each
year, may appoint one of their number Chairman of the Board. [79-4-8.03(d)]
SECTION 2.04. Vacancies and Newly Created Directorships.
In case of any vacancies in the Board of Directors through death,
resignation, disqualification or any other cause, including a vacancy resulting
from an increase in the number of directors, the Board of Directors may fill the
vacancy by the affirmative vote of a majority of the remaining directors, which
shall constitute a quorum for such purpose, and the director or directors so
chosen shall hold office until the next annual election by shareholders and
until their successor or successors shall be elected and qualified. [79-4-8.10]
SECTION 2.05. Removal.
At a meeting called expressly for that purpose, any and all of the
directors may at any time be removed, with or without cause, by a vote of the
holders of a majority of the shares then entitled to vote at an election of
directors. If less than the entire Board is to be removed, no one of the
directors may be removed if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the entire
Board of Directors. [79-4-8.08]
SECTION 2.06. Quorum of Directors.
At all meetings of the Board of Directors, one-half of the number of
directors then in office or, if there shall be an odd number of directors, then
a majority thereof, shall constitute a quorum for the transaction of business.
The act of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors. [79-4-8.24]
SECTION 2.07. Annual Meeting.
The newly elected Board of Directors shall meet as soon as practicable
after the annual meeting of shareholders, within or without the State of
Mississippi, and no notice of such meeting shall be necessary.
[79-4-8.20]
6
<PAGE>
SECTION 2.08. Regular Meetings.
Regular meetings of the Board may be held at such time and place,
within or without the State of Mississippi, as shall from time to time be fixed
by the Chairman of the Board, the President or the Board of Directors, and no
notice of such meeting shall be necessary. [79-4-8.20]
SECTION 2.09. Special Meetings.
Special meetings may be called at any time by the Chairman of the
Board, the President, any Vice President, the Treasurer or the Secretary or by
the Board of Directors. Special meetings shall be held at such place, within or
without the State of Mississippi, as shall be fixed by the person or persons
calling the meeting and stated in the notice or waiver of notice of the meeting.
[79-4-8.20]
Notice of a special meeting shall be given by the Secretary, or such
other officer performing his duties, to each director at least two days prior to
such meeting, if delivered by express mail or courier, or one day's notice if
given by telegram or telecopy or personal communication by telephone or
otherwise, or not later than the fourth day prior to the meeting if given by
regular, postage-prepaid U.S. mail. Attendance of a director at a special
meeting shall constitute a waiver of notice of such meeting, except when a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. Notice by mail or telegraph to the usual business or residence address
of the director shall be sufficient. The business to be transacted at or the
purpose of a special meeting of the Board of Directors need not be stated in
such notice or waiver of notice and any and all business may be transacted at a
special meeting of the Board of Directors. [79-4-8.22 & 79-4-8.23]
7
<PAGE>
SECTION 2.10. Action Without a Meeting.
Any corporate action either required or permitted by the Business
Corporation Act of Mississippi, the Corporation's Articles of Incorporation, or
these Bylaws, to be taken at a meeting of the Board of Directors may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors entitled to vote with respect to the
subject matter thereof. Members of the Board of Directors or any committee
thereof may participate in a meeting of the Board or any committee thereof by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
[79-4-8.21]
SECTION 2.11. Compensation.
Directors shall be entitled to a fee for attendance at each regular or
special meeting of the Board of Directors, or a committee of the Board, and in
otherwise performing duties as such directors, and/or to a monthly or annual fee
or salary, provided that no fees or salaries shall be paid to those directors
who are officers or employees, other than retired employees, who are on a fixed
basis of compensation from the Company or any subsidiary or affiliated company
and who have duties and responsibilities to such companies other than those
arising from the office of director. Directors shall be reimbursed for actual
expenses incurred in attending meetings of the Board of Directors or any
committee thereof and in otherwise performing duties as such directors or in
lieu thereof to an allowance for expenses. The amount of fee or salary paid to
directors and expense allowance, if any, shall be fixed by the Board of
Directors. [79-4-8.11]
SECTION 2.12. Executive and Other Committees.
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board, designate an Executive Committee and one or more
other committees, including without limitation Audit and Compensation
Committees, each consisting of three or more directors, and each of which
8
<PAGE>
committees may act by a majority of its members. Such Executive Committee shall
have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Company when the Board is not
meeting; and each other committee shall have such powers of the Board and
otherwise as are provided in the resolution establishing such committee.
Provided, however, notwithstanding anything to the contrary herein, the
Executive Committee and all other committees established by the Board shall have
no power or authority to take any action specifically prohibited under the
Mississippi Business Corporation Act, Section 79-4-8.25(e), or any successor
statute. Unless otherwise specifically permitted by the Board, the rules
promulgated by these Bylaws with respect to meetings of directors, notice,
quorums, voting and other procedures at such meetings shall be applicable to
meetings of committees established by the Board. [79-4-8.25]
SECTION 2.13. Interest of Director in Corporate Act.
A director of this Corporation shall not be disqualified by his office
from dealing or contracting with the Corporation, either as vendor, purchaser or
otherwise, nor shall any transaction or contract of this Corporation be void or
voidable by reason of the fact that any director or any firm of which any
director is a member or any corporation of which any director is a shareholder
or director is in any way interested in such transaction or contract, provided
that such transaction or contract is or shall be authorized, ratified or
approved either (1) by vote of a majority or a quorum of the Board of Directors
or the Executive Committee, without counting in such majority or quorum any
directors so interested or being a member of a firm so interested or a
shareholder or director of a corporation so interested, or (2) by vote at a
stockholders' meeting of the holders of a majority of all the outstanding shares
of the stock of the Corporation entitled to vote or by a writing or writings
signed by a majority of such holders; nor shall any director be liable to
account to the Corporation for any profit realized by him from or through any
transaction or contract of this Corporation authorized, ratified or approved as
9
<PAGE>
aforesaid, by reason of the fact that he or any firm of which he is a member or
any corporation of which he is a shareholder or director was interested in such
transaction or contract. Nothing herein contained shall create any liability in
the events above described or prevent the authorization, ratification or
approval of such contracts or transactions in any other manner provided by law.
ARTICLE III
Officers
SECTION 3.01. Number.
The officers of the Corporation shall be chosen by the Board of
Directors. The officers shall be a President, a Secretary and a Treasurer, and
such number of Vice Presidents, Assistant Secretaries and Assistant Treasurers,
and such other officers, if any, as the Board of Directors may from time to time
determine. The Board of Directors may from time to time, but shall not be
required to, establish the office of Chairman of the Board and may, but shall
not be required to, designate the holder of such office, if established, as
Chief Executive Officer of the Corporation. The Board of Directors may choose
such other agents as it shall deem necessary. Any number of offices may be held
by the same person, except the offices of President and Secretary.
[79-4-8.40]
SECTION 3.02. Terms of Office.
Each officer shall hold his office until the next election of directors
and until his successor is chosen and qualified or until his earlier resignation
or removal. Any officer may resign at any time upon written notice to the
Corporation. Vacancies in any office shall be filled by the Board of Directors.
10
<PAGE>
SECTION 3.03. Removal of Officers.
Any officer or agent may be removed by the Board of Directors whenever
in its judgment the best interest of the Corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not of
itself create contract rights. [79-4-8.43(b)]
SECTION 3.04. Authority.
The officers of the Corporation shall have such duties as usually
pertain to their offices, except as modified by the Board of Directors and shall
also have such powers and duties as may from time to time be conferred upon them
by the Board of Directors. Notwithstanding the provisions of Section 3.01
hereof, in the event of the absence or inability of the President to act, the
powers and duties of the President shall, subject to the control of the Board of
Directors, devolve successively upon such other persons as shall have been
designated in a resolution adopted by the Board of Directors, and in accordance
with the order of succession set forth therein. [79-4-8.41]
ARTICLE IV
Indemnification of Directors and Officers
SECTION 4.01. Indemnification and Related Matters.
To the fullest extent permitted by law, the Company shall indemnify
each person made, or threatened to be made, a party to any threatened, pending,
or completed claim, action, suit or proceeding, whether civil or criminal,
administrative or investigative, and whether by or in the right of the Company
or otherwise, by reason of the fact that such person, or such person's testator
or intestate, is or was a director, officer or was an employee of the Company
holding one or more management positions through and inclusive of department
managers (but not positions below the level of department managers) (such
positions being hereinafter referred to as "Management Positions") or is or was
serving at the request of the Company as a director, officer, employee, agent or
11
<PAGE>
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in any capacity at the request of the Company,
against all loss and expense actually or reasonably incurred by him including,
without limiting the generality of the foregoing, judgments, fines, penalties,
liabilities, sanctions, and amounts paid in settlement and attorney's fees and
disbursements actually and necessarily incurred by him in defense of such action
or proceeding, or any appeal therefrom. The indemnification provided by this
Section shall inure to the benefit of the heirs, executors and administrators of
such person.
In any case in which a director, officer of the Company or employee of
the Company holding one or more Management Positions requests indemnification
with respect to the defense of any such claim, action or suit or proceedings,
the Company may advance expenses (including attorney's fees) incurred by such
person prior to the final disposition of such claim, action, suit or proceeding,
as authorized by the Board of Directors in the specific case, upon receipt of a
written undertaking by or on behalf of such person to repay amounts advanced if
it shall ultimately be determined that such person was not entitled to be
indemnified by the Company under this Section or otherwise; provided, however,
that the advancement of such expenses shall not be deemed to be indemnification
unless and until it shall ultimately be determined that such person is entitled
to be indemnified by the Company. Such a person claiming indemnification shall
be entitled to indemnification upon a determination that no judgment or other
final adjudication adverse to such person has established that such person's
acts were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or such
person personally obtained an economic benefit including a financial profit or
other advantage to which such person was not legally entitled.
12
<PAGE>
Without limiting the generality of the foregoing provision, no former,
present or future director or officer of the Company or employee of the Company
holding one or more management positions, or his heirs, executors or
administrators, shall be liable for any undertaking entered into by the Company
or its subsidiaries or affiliates as required by the Securities and Exchange
Commission pursuant to any rule or regulation of the Securities and Exchange
Commission now or hereafter in effect or orders issued pursuant to the Public
Utility Holding Company Act of 1935, the Federal Power Act, or any undertaking
entered into by the Company due to environmental requirements including all
legally enforceable environmental compliance obligations imposed by federal,
state or local statute, regulation, permit, judicial or administrative decree,
order and judgment or other similar means, or any undertaking entered into by
the Company pursuant to any approved Company compliance plan or any federal or
state or municipal ordinance which directly or indirectly regulates the Company,
or its parent by reason of their being holding or investment companies, public
utility companies, public utility holding companies or subsidiaries of public
utility holding companies.
The foregoing rights shall not be exclusive of any other rights to
which any such director, officer or employee may otherwise be entitled and shall
be available whether or not the director, officer or employee continues to be a
director, officer or employee at the time of incurring any such expenses and
liabilities.
If any word, clause or provision of the Bylaws or any indemnification
made under this Section 4.01 shall for any reason be determined to be invalid,
the remaining provisions of the Bylaws shall not otherwise be affected thereby
but shall remain in full force and effect. The masculine pronoun, as used in the
Bylaws, means the masculine and feminine wherever applicable. [79-4-8.51,
79-4-8.52, 79-4-8.53, 79-4-8.55 & 79-4-8.56]
13
<PAGE>
SECTION 4.02. Liability Insurance.
The Company may purchase and maintain insurance on behalf of any person
described in Section 4.01 against any liability or expense (including attorney's
fees) which may be asserted against such person whether or not the Company would
have the power to indemnify such person against such liability or expense under
this Article IV or otherwise. [79-4-8.57]
ARTICLE V
Capital Stock
SECTION 5.01. Stock Certificates.
Every holder of stock in the Corporation shall be entitled to have a
certificate signed by the President or a Vice President of the Corporation, and
by the Secretary or an Assistant Secretary of the Corporation, one of which may
be facsimile signature, and may be sealed with the seal of the Corporation or a
facsimile thereof. The signatures of the President or Vice President and the
Secretary or Assistant Secretary upon a certificate may both be facsimiles if
the certificate is countersigned by a transfer agent or registered by a
registrar, other than the Corporation itself or an employee of the Corporation.
In case any officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer before such certificate
is issued, it may be issued by the Corporation with the same effect as if he
were such officer at the date of issue.
The certificates of stock of the Corporation shall be numbered and
shall be entered in the books of the Corporation and
registered as they are issued. They shall exhibit the name of the registered
holder and shall certify the number of shares owned by him. [79-4-6.25]
SECTION 5.02. Registered Holders.
Prior to due presentment for registration of transfer of any security
of the Corporation in registered form, the Corporation shall treat the
14
<PAGE>
registered owner as the person exclusively entitled to vote, to receive
notifications and to otherwise exercise all the rights and powers of an owner,
and shall not be bound to recognize any equitable or other claim to, or interest
in, any security, whether or not the Corporation shall have notice thereof,
except as otherwise provided by the laws of the State of Mississippi.
SECTION 5.03. Transfers.
The stock of the Corporation shall be transferable or assignable on the
books of the Corporation by the holders in person or by attorney on the
surrender of the certificates therefor duly endorsed, or in any other manner
prescribed by the laws of the State of Mississippi.
SECTION 5.04. Replacement Certificates.
The Corporation may issue a new certificate of stock in place of any
certificates theretofore issued by it, alleged to have been lost or destroyed,
provided the person seeking the issuance of the new certificate shall be the
owner or satisfy the Corporation he is the owner of the stock certificate
alleged to have been lost or destroyed, and the directors shall require the
owner of the lost or destroyed certificate, or his legal representatives, to
give the Corporation a bond sufficient to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss or destruction
of any such certificate or the issuance of such new certificate. The issuance of
a new certificate, as herein above provided, shall not relieve the Corporation
or the directors from corporate or personal liability in damages to any person
to whom the original certificate has been or shall be transferred for value
without notice of the issuance of the new certificate.
15
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ARTICLE VI
Miscellaneous
SECTION 6.01. Seal.
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall prescribe.
SECTION 6.02. Checks.
The Board of Directors is authorized to select such depositories as
they shall deem proper for the funds of the Corporation. All checks and drafts
against such deposited funds shall be signed by such officers or such other
persons as may be specified by the Board of Directors.
SECTION 6.03. Loans.
No loans shall be made by the Corporation to its officers or directors,
except in the amounts and under the same terms and conditions as available to
all regular employees of the Corporation, and no loans shall be made by the
Corporation secured by its shares.
SECTION 6.04. Amendment of Bylaws.
These Bylaws may be amended or repealed and new Bylaws adopted by the
Board of Directors or by vote of the holders of the shares at the time entitled
to vote in the election of any director, except that any Bylaw adopted by such
holders shall not be amended or repealed by the Board of Directors. [79-4-10.20]
SECTION 6.05. Section Headings and References.
The headings of the Articles and Sections of these Bylaws and the
bracketed references to the Mississippi Business Corporation Act have been
inserted for convenience of reference only and shall not be deemed to be a part
of these Bylaws.
16
EXHIBIT B-23
AMENDMENT TO AND RESTATEMENT OF THE
ARTICLES OF INCORPORATION
OF
MOBILE ENERGY SERVICES HOLDINGS, INC.
Pursuant to, and with the effect provided in, Sections 10-2B-10.01 to
10-2B-10.07 of the Code of Alabama, 1975, as amended (the "Code"), the
undersigned corporation adopts the following Amendment to and Restatement of the
Articles of Incorporation:
FIRST: The name of the corporation is Mobile Energy Services Holdings, Inc.
(the "Corporation").
SECOND: The following amendment to the Corporation's Articles of
Incorporation was adopted in the manner provided by the Code by the
Corporation's sole shareholder, as of January ___, 1996:
"IV.
The Corporation shall be authorized to issue Two Thousand (2,000) shares
of capital stock of which One Thousand (1,000) shall be shares of One Dollar
($1.00) par value common stock (the "Common Stock") and One Thousand (1,000)
shall be shares of no par value preferred stock (the "Preferred Stock"). The
shares of Common Stock shall have unlimited voting rights. The shares of
Preferred Stock shall not be entitled to vote on any matter except for: (i) such
matters as require a vote of preferred stockholders under Alabama law, and (ii)
any subsequent amendment to the Articles of Incorporation that would affect the
priorities of the holders of such shares to dividends and to distributions upon
liquidation of the Corporation. The Board of Directors is hereby authorized to
determine the designation and the dividend, liquidation and other rights,
preferences and limitations of such shares of Preferred Stock."
THIRD: The Corporation had 1,000 shares of $1.00 par value Common Stock
issued and outstanding at the time of the adoption of this amendment. Of the
1,000 shares of $1.00 par value Common Stock issued and outstanding, 1,000
shares voted to approve, and 0 shares voted against or abstained from voting on
the foregoing amendment.
FOURTH: The Articles of Incorporation of the Corporation are hereby
restated as follows:
I.
The name of the corporation is MOBILE ENERGY SERVICES HOLDINGS, INC. (the
"Corporation").
<PAGE>
II.
The Corporation shall have perpetual duration.
III.
The nature of the business of the Corporation and its objects, purposes
and powers shall be limited to the following activities:
(a) to acquire, finance, own, expand, improve and operate or contract
for the operation of the energy and recovery complex and related
facilities located at the pulp and tissue mill in Mobile, Alabama owned
by Scott Paper Company, a Pennsylvania corporation ("Scott") (or any
successor thereto), and the paper mill owned by S.D. Warren Company, a
Pennsylvania corporation ("S.D. Warren") (or any successor thereto)
(the "Energy Complex");
(b) to serve as a member of and to own a majority of the outstanding
membership interests of Mobile Energy Services Company, L.L.C., an
Alabama limited liability company (the "Company"), and to act as the
sole manager thereof, provided that the foregoing shall not be
construed as restraining the Corporation from transferring interests in
the Company (i) in an amount not to exceed one percent (1%) of the
total interests in the Company to The Southern Company, a Delaware
corporation ("Southern"), prior to the issuance of the "Offered
Securities" (as hereinafter defined) by the Company; (ii) on
commercially reasonable terms to third parties that are not "Southern
Affiliated Entities" (as hereinafter defined), and permitting such
third parties to participate in the management of the Company, even if
the effect thereof would be to cause (A) the Corporation's ownership
interests in the Company to be reduced below a majority of the
ownership interests in the Company or (B) one or more such third
parties to acquire or share managerial control of the Company; or (iii)
to a Southern Affiliated Entity whose Articles of Incorporation (or
other organizational documents) contain the same operative provisions
as these Articles and which undertakes, for the benefit of the
"Bondholders" (as herein defined), each of the covenants and
restrictions of the Corporation set forth in the indenture among the
Company, the Corporation, as guarantor, and First Union National Bank
of Georgia ("First Union"), as trustee (the "Indenture") relating to up
to $290,000,000 aggregate principal amount of first mortgage bonds (the
"First Mortgage Bonds"), the Amended and Restated Lease and Agreement
(the "Tax-Exempt Lease") among the Company, the Corporation, as
guarantor, and the Industrial Development Board of the City of Mobile,
Alabama (the "IDB") entered into in connection with the issuance by the
IDB, for the benefit of the Company of $85,000,000 aggregate principal
amount of tax-exempt bonds (the "Tax-Exempt Bonds") pursuant to the
Amended and Restated Trust Indenture between the IDB and First Union
(the "Tax-Exempt Indenture")
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<PAGE>
in each case relating to compliance with and amendment of these
Articles. For purposes of these Articles, the term "Southern Affiliated
Entities" shall mean the Corporation, Southern, Southern Electric
International, Inc., a Delaware corporation ("SEI"), the Company and
any other corporation, partnership, limited liability company or other
business entity with respect to which the Corporation, Southern, SEI,
or the Company, through ownership of voting securities, by contract or
otherwise, has the power to direct (or cause the direction of) the
management and policies of such corporation, partnership, limited
liability company or other business entity;
(c) to enter into and perform any agreement providing for or relating
to (i) the issuance by the Company of the First Mortgage Bonds, the
issuance by the IDB of the Tax-Exempt Bonds, and the working capital
facility to be provided to the Company by an unaffiliated third party
(the "Working Capital Facility"), and in each case to receive and
dispose of proceeds thereunder or in exchange therefor and to provide
for any refinancing or refunding of the foregoing (the First Mortgage
Bonds, the Tax-Exempt Bonds and the Working Capital Facility are
sometimes collectively referred to as the "Offered Securities") and
(ii) the issuance by the Company of other additional indebtedness as
may be consistent with clause (g) of this Article III;
(d) to take all actions necessary to offer the First Mortgage Bonds and
the Tax- Exempt Bonds to the purchasers thereof (the "Bondholders");
(e) to enter into and perform any agreement for or relating to the
management and administration of the activities of the Corporation or
the Company;
(f) to enter into and perform any agreements to accomplish the
purposes set forth in paragraphs (a),(b),(c),(d) or (e) above; and
(g) to engage in any lawful act or activity, and to exercise any powers
permitted to corporations organized under the laws of the State of
Alabama, that are incidental to and necessary, suitable or convenient
for the accomplishment of the purposes set forth in (a), (b), (c), (d),
(e) or (f) above.
IV.
The Corporation shall be authorized to issue Two Thousand (2,000)
shares of capital stock of which One Thousand (1,000) shall be shares of One
Dollar ($1.00) par value common stock (the "Common Stock") and One Thousand
(1,000) shall be shares of no par value preferred stock (the "Preferred Stock").
The shares of Common Stock shall have unlimited voting rights. The shares of
Preferred Stock shall not be entitled to vote on any matter except for: (i) such
matters as require a vote of preferred stockholders under Alabama law, and (ii)
any subsequent amendment to the Articles of Incorporation that would affect the
priorities of the
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<PAGE>
holders of such shares to dividends and to distributions upon liquidation of the
Corporation. The Board of Directors is hereby authorized to determine the
designation and the dividend, liquidation and other rights, preferences and
limitations of such shares of Preferred Stock.
V.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the By-Laws of the Corporation.
VI.
To the fullest extent that the General Corporation Law of Alabama, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
VII.
The initial registered office of the Corporation in the State of
Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery Co.,
Alabama 36104. The initial registered agent of the Corporation at such address
shall be The Corporation Company.
VIII.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the By-Laws of the Corporation. The initial Board
of Directors of the Corporation shall consist of one (1)member, whose name and
corresponding mailing address is:
Raymond D. Hill
c/o Southern Electric International, Inc.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
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<PAGE>
IX.
The name and address of the Incorporator of the Corporation are
Elizabeth B. Chandler, NationsBank Plaza, 600 Peachtree Street, N.E., Suite
5200, Atlanta, Georgia 30309-2216.
X.
The unanimous approval of the Board of Directors of the Corporation is
required: (a) to file a bankruptcy or insolvency petition or otherwise institute
insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss.
301, or any successor thereto (the "Bankruptcy Code"), or any similar statute,
seeking protection of the Corporation as a debtor in such proceedings; (b) to
consent to the filing of a bankruptcy or insolvency petition or to the
institution of an insolvency proceeding under Section 301 of the Bankruptcy
Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar statute
seeking protection of the Company as a debtor in such proceeding, or (c) to
amend, repeal or supersede any provision of Articles III, X, XI, XII or XIII
hereof unless, in connection with such amendment, repeal or supersession, the
Corporation receives from a nationally recognized law firm acceptable to those
rating agencies which at the time of such opinion are rating the First Mortgage
Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern
or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy
court, exercising reasonable judgment after full consideration of all relevant
circumstances, in a properly presented case, would not disregard the separate
corporate existence of the Corporation or the Company so as to order substantive
consolidation of the assets and liabilities of the Corporation or the Company
with those of SEI or Southern.
The Board of Directors of the Corporation shall consist of a number as
determined by the By-Laws of the Corporation, provided that one duly qualified
and elected director at all times shall constitute an "Independent Director" (as
hereinafter defined). For purposes of the foregoing, the term "Independent
Director" shall mean an individual who, at all times during such individual's
service as a director of the Corporation, is not any of the following:
(a) a person who received more than eight percent (8%) of his or her
gross income (as defined for Federal income tax purposes) during either
of the preceding two calendar years ended December 31 from wages,
dividends, distributions or other payments received directly from the
Southern Affiliated Entities;
(b) a director, general partner, member, trustee, beneficiary or the
holder of ten percent (10%) or more of the equity interests of any
corporation, partnership, limited liability company, trust or other
entity which received more than eight (8%) of its gross revenues during
either of the preceding two calendar years ended December 31 from
wages, dividends, distributions or other payments received from the
Southern Affiliated Entities;
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<PAGE>
(c) a person who possesses equity or other interests in the Southern
Affiliated Entities, or debt of any of the Southern Affiliated
Entities, which, in the aggregate, have a fair market value in excess
of eight percent (8%) of the net worth of such person;
(d) a person who, on such date or at any time during the two years
preceding such date, was a director of any of the Southern Affiliated
Entities (other than the Corporation) or was an officer or employee of
any of the Southern Affiliated Entities (including the Corporation); or
(e) a parent, child, sibling or spouse of any person described in
clauses (a), (b), (c) or (d) above.
XI.
Neither the Corporation's funds nor any other assets thereof shall be
commingled with those of any other person or entity, and the Corporation's funds
shall be clearly traceable at all times and in all transactions. The
Corporation's assets shall remain identifiably separate from those of all other
entities such that there shall be no material difficulty in segregating and
ascertaining the assets of the Corporation as distinct from those of the other
Southern Affiliated Entities or any other person or entity. Notwithstanding the
foregoing: (a) equity or other contributions from any shareholder of the
Corporation may be received by the Corporation, deposited to the account of the
Corporation and treated as funds of the Corporation, and (b) revenues of the
Corporation or the Company may be collected by affiliates of the Corporation and
such affiliates may pay liabilities of the Corporation or the Company, as
applicable, therewith pursuant to the "Relevant Documents" (as hereinafter
defined), so long as appropriate records are maintained by the Corporation to
identify at all times funds belonging to the Corporation or the Company,
respectively. For purposes of these Articles, the "Relevant Documents" shall
mean: (1) the Registration Statement filed on Form S-1 under the Securities Act
of 1933, as amended, and the Prospectus, each relating to the issuance of the
First Mortgage Bonds, and the Limited Offering Memorandum issued in connection
with the sale of the Tax-Exempt Bonds; (2) the Articles of Incorporation of SEI
and Southern, the Articles of Organization of the Company, and these Articles;
(3) the By-Laws of the Corporation, SEI and Southern; (4) the Indenture, the
Tax-Exempt Indenture and the Tax-Exempt Lease Agreement; (5) the Working Capital
Facility and the Corporation's guaranty in respect thereof; (6) those certain
guaranties from Southern or appropriate letters of credit necessary to satisfy
certain of the Company's reserve account funding requirements under the
Indenture, the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as
hereinafter defined); (7) the Intercreditor Agreement entered into by and among
the Corporation, the Company, First Union, as trustee with respect to the First
Mortgage Bonds, First Union, as trustee with respect to the Tax-Exempt Bonds,
the IDB, Banque Paribas, as Working Capital Facility provider, and Bankers Trust
Company, as Collateral Agent (the "Intercreditor Agreement"); (8) the Asset
Purchase Agreement dated as of December 12, 1994, between Scott Paper Company
("Scott") and the
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<PAGE>
Corporation; (9) the Pulp Mill Environmental Indemnity Agreement, dated as
December 12, 1994, between Scott and the Corporation (the "Pulp Mill
Environmental Indemnity Agreement"), the Tissue Mill Environmental Indemnity
Agreement, dated as December 12, 1994, between Scott and the Corporation (the
"Tissue Mill Environmental Indemnity Agreement"), the Paper Mill Environmental
Indemnity Agreement, dated as December 12, 1994, between S.D. Warren and the
Corporation, and the Environmental Guaranty dated as of December 12, 1994, made
by Southern (together with the Pulp Mill Environmental Indemnity Agreement and
the Tissue Mill Environmental Indemnity Agreement, the "Environmental Indemnity
Agreements") in connection with the Company's obligations under the
Environmental Indemnity Agreements; (10) the Administrative Services Agreements
(the "SCS Agreements"), pursuant to which Southern Company Services, Inc.
("SCS") will provide certain administrative services to the Corporation and the
Company, the Operations and Maintenance Agreement, dated as of December 12, 1994
between the Corporation and SEI and the Administrative Services Agreement dated
as of July 14, 1995 between SEI and the Corporation; (11) the agreement between
the Corporation and Southern relating to the allocation of certain tax
liabilities; (12) the Mill Owner Maintenance Reserve Account Agreement among the
Company, Southern, Scott and S.D. Warren; and (13) the Employee Transition
Agreement among Scott, the Corporation and SEI, in each case as in effect on the
date of issuance and sale of the First Mortgage Bonds or as may be amended,
replaced or otherwise modified from time to time, provided that in connection
with any such amendment, replacement or modification, the Corporation receives
from a nationally recognized law firm acceptable to those rating agencies which
at the time of such opinion are rating the First Mortgage Bonds or the
Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were
to become a debtor under the Bankruptcy Code, a federal bankruptcy court,
exercising reasonable judgment after full consideration of all relevant
circumstances, in a properly presented case, would not disregard the separate
corporate existence of the Company or the Corporation so as to order substantive
consolidation of the assets and liabilities of the Company or the Corporation
with those of SEI or Southern.
XII.
The Corporation:
(a) shall maintain corporate records and books of account which at all
times shall be separate from those of any other person or entity and
shall be materially correct and complete;
(b) shall conduct its own business solely in its own name or through
its authorized agents, and not in the name of any of the other Southern
Affiliated Entities, in a manner which is not likely to mislead others
as to the identity of the legal entity with which such others are
dealing, shall not permit any person or entity to conduct any business
of such person or entity in the Corporation's name, and without
limiting the generality of the foregoing: (i) shall ensure that all
oral and written communications, including without
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<PAGE>
limitation, letters, invoices, purchase orders, contracts, statements
and applications, are and will be made solely in the name of the entity
to which they relate or in the name of such entity's authorized agents,
and (ii) shall not refer, and shall ensure that the other Southern
Affiliated Entities do not refer, to the Corporation or the Company as
a division or department of any other entity;
(c) shall prepare financial statements separate from any other person
or entity, which shall disclose its separate existence and the
transactions contemplated by the Relevant Documents in accordance with
generally accepted accounting principles, and shall disclose that the
assets of the Corporation are not available to any creditor of any
affiliate of the Corporation (other than as contemplated by the
Relevant Documents);
(d) except to the extent set forth in the Relevant Documents, shall pay
its liabilities out of its own funds, and, except as set forth in the
Relevant Documents, shall not permit any of the other Southern
Affiliated Entities to pay such liabilities;
(e) shall not hold out employees or officers of any of the other
Southern Affiliated Entities as employees or officers of the
Corporation, nor permit employees or officers of the Corporation to be
held out as employees or officers of any of the other Southern
Affiliated Entities; provided that said restrictions shall not preclude
a particular employee or officer of any of the other Southern
Affiliated Entities from also holding a position as an employee or
officer of the Corporation, so long as the Corporation takes reasonably
appropriate steps to assure that unaffiliated parties dealing with such
employee or officer are able to distinguish the particular entity which
such person is representing at any particular time;
(f) shall not guarantee or become obligated for the debts of any of the
other Southern Affiliated Entities or hold out its credit as being
available to satisfy the obligations of any of the other Southern
Affiliated Entities, other than (i) obligations to reimburse SEI for
expenses paid by SEI on behalf of the Corporation in connection with
the operation and maintenance of the Energy Complex in accordance with
the Relevant Documents, (ii) obligations of the Company related to the
First Mortgage Bonds, the Tax-Exempt Bonds or the Working Capital
Facility, and (iii) obligations to indemnify SEI for certain claims and
losses relating to SEI's operation and maintenance of the Energy
Complex in accordance with the Relevant Documents;
(g) shall allocate fairly and equitably any overhead for office
space shared with any of the other Southern Affiliated Entities;
(h) shall use stationery, invoices, checks and other business forms
dentifiably separate and distinct from those of any of the other
Southern Affiliated Entities. Such items shall bear a mailing
address and telephone number for the Corporation which is different
from that used by any of the other Southern Affiliated Entities. The
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<PAGE>
Corporation further shall maintain, as its principal address and
telephone number for receipt of notices and other communications under
the Relevant Documents, a mailing address and telephone number separate
from those of any of the other Southern Affiliated Entities;
(i) shall not pledge its funds or assets for the benefit of any of the
other Southern Affiliated Entities, except as set forth in the Relevant
Documents; and
(j) at all times shall hold itself out to the public as an entity
legally separate and distinct from any of the other Southern Affiliated
Entities.
XIII.
The Corporation shall at all times maintain and observe all corporate
formalities in the conduct of its affairs and with respect to the acquisition,
ownership, encumbrance or transfer of any material assets or the incurrence of
any material indebtedness. Such formalities shall include without limitation the
holding of appropriate periodic meetings of its Board of Directors and
shareholders in accordance with Alabama law, the recording of minutes of such
meetings and any other proceedings of its shareholders and Board of Directors,
the adoption by the Board of Directors (and, as appropriate, the shareholders)
of resolutions to approve material actions of the Corporation and the execution
and maintenance of appropriate documentation with respect to and in order to
evidence the acquisition, ownership, encumbrance or transfer of any material
assets or the incurrence of any material indebtedness.
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<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Amendment to and
Restatement of the Articles of Incorporation to be executed as of this ___ day
of January, 1996.
MOBILE ENERGY SERVICES HOLDINGS, INC.
By:
Title:
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<PAGE>
July 6, 1995
AMENDMENTS TO AND RESTATEMENT OF THE
ARTICLES OF INCORPORATION
OF
MOBILE ENERGY SERVICES HOLDINGS, INC.
I.
The name of the corporation is MOBILE ENERGY SERVICES HOLDINGS, INC.
(the "Corporation").
II.
The Corporation shall have perpetual duration.
III.
The nature of the business of the Corporation and its objects, purposes
and powers shall be limited to the following activities:
(a) to acquire, finance, own, expand, improve and operate or contract
for the operation of the cogeneration power production and recovery
complex located on the grounds of Scott Paper Company's pulp and tissue
mill in Mobile, Alabama (the "Energy Complex");
(b) to serve as a member of and to own a majority of the outstanding
membership interests of Mobile Energy Services Company, L.L.C., an
Alabama limited liability company (the "Company"), and to act as the
sole manager thereof, provided that the foregoing shall not be
construed as restraining the Corporation from transferring interests in
the Company (i) in an amount not to exceed one percent (1%) of the
total interests in the Company to The Southern Company, a Delaware
corporation ("Southern"), prior to the issuance of the "Offered
Securities" (as hereinafter defined) by the Company; (ii) on
commercially reasonable terms to third parties that are not "Southern
Affiliated Entities" (as hereinafter defined), and permitting such
third parties to participate in the management of the Company, even if
the effect thereof would be to cause (A) the Corporation's ownership
interests in the Company to be reduced below a majority of the
ownership interests in the Company or (B) such third parties to acquire
or share managerial control of the Company; or (iii) to a Southern
Affiliated Entity whose Articles of Incorporation (or other
organizational documents) contain the same operative provisions as
these Articles and which undertakes, for the benefit of the
"Bondholders" (as herein defined), each of the covenants and
restrictions of the Corporation set forth in the indenture relating to
the initial series of first mortgage bonds (the "First Mortgage Bonds")
relating to compliance with and amendment of these Articles. For
purposes of these Articles, the term "Southern Affiliated Entities"
shall mean the Corporation, Southern, Southern Electric International,
Inc., a Delaware corporation ("SEI"), the Company
<PAGE>
and any other corporation, partnership, limited liability company or
other business entity with respect to which the Corporation, Southern,
SEI, or the Company, through ownership of voting securities, by
contract or otherwise, has the power to direct (or cause the direction
of) the management and policies of such corporation, partnership,
limited liability company or other business entity;
(c) to enter into and perform any agreement providing for or relating
to the issuance or guaranty of the First Mortgage Bonds or the
$85,000,000 aggregate principal amount of tax-exempt bonds due _______,
2___ (the "Tax-Exempt Bonds") (and to receive and dispose of proceeds
in exchange therefor), or relating to the incurrence or guaranty of
obligations under a $15,000,000 working capital credit facility to be
provided to the Company by Banque Paribas (the "Working Capital
Facility") (the First Mortgage Bonds, the Tax-Exempt Bonds and the
Working Capital Facility are sometimes collectively referred to as the
"Offered Securities");
(d) to take all actions necessary to offer the First Mortgage
Bonds and the Tax-Exempt Bonds to the purchasers thereof (the
"Bondholders");
(e) to enter into and perform any agreement for or relating to the
management and administration of the activities of the Corporation or
the Company;
(f) to enter into and perform any agreements to accomplish the purposes
set forth in paragraphs (a), (b), (c), (d) or (e) above; and
(g) to engage in any lawful act or activity, and to exercise any powers
permitted to corporations organized under the laws of the State of
Alabama, that are incidental to and necessary, suitable or convenient
for the accomplishment of the purposes set forth in (a), (b), (c), (d),
(e) or (f) above.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the By-Laws of the Corporation.
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<PAGE>
VI.
To the fullest extent that the General Corporation Law of Alabama, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
VII.
The initial registered office of the Corporation in the State of
Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery Co.,
Alabama 36104. The initial registered agent of the Corporation at such address
shall be The Corporation Company.
VIII.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the By-Laws of the Corporation. The unanimous
approval of the Board of Directors of the Corporation is required: (a) to file a
bankruptcy or insolvency petition or otherwise institute insolvency proceedings
under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor
thereto, or any similar statute, seeking protection of the Corporation as a
debtor in such proceedings; (b) to consent to the filing of a bankruptcy or
insolvency petition or to the institution of an insolvency proceeding under
Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto,
or any similar statute, or (c) to amend, repeal or supersede any provision of
Articles III, VIII, IX, X, or XI hereof;
The Board of Directors of the corporation shall consist of a number as
determined by the ByLaws of the Corporation, provided one director at all times
shall constitute an "Independent Director" (as hereinafter defined). For
purposes of the foregoing, the term "Independent Director" shall mean an
individual who, at all times during such individual's service as a director of
the Corporation, is not any of the following:
(a) a person who received more than eight percent (8%) of his or her
gross income (as defined for Federal income tax purposes) during either
of the preceding two calendar years ended December 31 from wages,
dividends, distributions or other payments received directly from the
Southern Affiliated Entities;
(b) a director, general partner, member, trustee, beneficiary or the
holder of ten percent (10%) or more of the equity interests of any
corporation, partnership, limited liability company, trust or other
entity which received more than eight (8%) of its gross revenues during
either of the preceding two calendar years ended December 31 from
wages, dividends, distributions or other payments received from the
Southern Affiliated Entities;
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(c) a person who possesses equity or other interests in the Southern
Affiliated Entities, or debt of any of the Southern Affiliated
Entities, which, in the aggregate, have a fair market value in excess
of eight percent (8%) of the net worth of such person;
(d) a person who, on such date or at any time during the two years
preceding such date, was a director of any of the Southern Affiliated
Entities (other than the Corporation) or was an officer or employee of
any of the Southern Affiliated Entities (including the Corporation); or
(e) a parent, child, sibling or spouse of any person described in
clauses (a), (b), (c) or (d)above.
IX.
Neither the Corporation's funds nor any other assets thereof shall be
commingled with those of any other person or entity, and the Corporation's funds
shall be clearly traceable at all times and in all transactions. The
Corporation's assets shall remain identifiably separate from those of all other
entities such that there shall be no material difficulty in segregating and
ascertaining the assets of the Corporation as distinct from those of the other
Southern Affiliated Entities or any other person or entity. Notwithstanding the
foregoing: (a) equity or other contributions from any shareholder of the
Corporation may be received by the Corporation, deposited to the account of the
Corporation and treated as funds of the Corporation, and (b) revenues of the
Corporation or the Company may be collected by affiliates of the Corporation and
such affiliates may pay liabilities of the Corporation or the Company, as
applicable, therewith pursuant to the "Relevant Documents" (as hereinafter
defined), so long as appropriate records are maintained by the Corporation to
identify at all times funds belonging to the Corporation or the Company,
respectively. For purposes of these Articles, the "Relevant Documents" shall
mean: (1) the Registration Statement filed on Form S-1 under the Securities Act
of 1933, as amended, and the Prospectus dated _______, 1995, each relating to
the issuance of the First Mortgage Bonds, and the Official Statement dated
_______, 1995, issued in connection with the sale of the Tax-Exempt Bonds; (2)
the Articles of Incorporation of SEI and Southern, the Articles of Organization
of the Company, and these Articles of Organization; (3) the By-Laws of the
Corporation, SEI and Southern; (4) the indenture dated as of ______, 1995, (the
"Indenture") among the Company, the Corporation, as guarantor, and First Union
National Bank of Georgia, as trustee, entered into in connection with the
issuance of the First Mortgage Bonds, the indenture dated as of _______, 1995
(the "Tax-Exempt Indenture") among the IDB and First Union National Bank of
Georgia, as tax-exempt trustee, entered into in connection with the issuance of
the Tax-Exempt Bonds, and Tax-Exempt Lease Agreement; (5) the Working Capital
Facility and the Corporation's guaranty in respect thereof; (6) the guaranty
from Southern or the appropriate letter of credit necessary to satisfy the
Company's reserve requirements under the Indenture, the Tax-Exempt Indenture,
and the "Intercreditor Agreement"(as hereinafter defined); (7) the Intercreditor
Agreement entered into between and among the Corporation, the Company, First
Union National Bank of Georgia, as trustee with respect to the First Mortgage
Bonds, First Union National Bank of Georgia, as trustee with respect to the
Tax-Exempt Bonds, the IDB, Banque Paribas, as Working Capital Facility provider,
and Bankers Trust Company, as Collateral Agent (the "Intercreditor Agreement");
(8) the Asset Purchase Agreement dated as of December 12, 1994, between Scott
Paper Company, a Pennsylvania corporation ("Scott") and the Corporation; (9) the
Pulp Mill Environmental Indemnity Agreement, dated as December 12, 1994, between
Scott and the Corporation, the Tissue Mill
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Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and
the Corporation, the Paper Mill Environmental Indemnity Agreement, dated as
December 12, 1994, between S.D. Warren Company, a Pennsylvania corporation and
the Corporation, and the Environmental Guaranty dated as of December 12, 1994,
made by Southern in favor of the owners of the pulp mill, the tissue mill, and
the paper mill located in Mobile, Alabama; (10) the Administrative Services
Agreements (the "SCS Agreements"), pursuant to which Southern Company Services,
Inc. ("SCS") will provide certain administrative services to the Corporation and
the Company, and the Operations and Maintenance Agreement, dated as of December
12, 1994 between the Company (as assignee of the Corporation) and SEI; and (iii)
the Southern Master Tax Sharing Agreement.
X.
The Corporation:
(a) shall maintain corporate records and books of account which at all
times shall be separate from those of any other person or entity and
shall be materially correct and complete;
(b) shall conduct its own business solely in its own name or through
its authorized agents, and not in the name of any of the other Southern
Affiliated Entities, in a manner which is not likely to mislead others
as to the identity of the legal entity with which such others are
dealing, shall not permit any person or entity to conduct any business
of such person or entity in the Corporation's name, and without
limiting the generality of the foregoing: (i) shall ensure that all
oral and written communications, including without limitation, letters,
invoices, purchase orders, contracts, statements and applications, are
and will be made solely in the name of the entity to which they relate
or in the name of such entity's authorized agents, and (ii) shall not
refer, and shall ensure that the other Southern Affiliated Entities do
not refer, to the Corporation or the Company as a division or
department of any other entity;
(c) shall prepare financial statements separate from any other person
or entity, which shall disclose its separate existence and the
transactions contemplated by the Relevant Documents in accordance with
generally accepted accounting principles, and shall disclose that the
assets of the Corporation are not available to any creditor of any
affiliate of the Corporation (other than as contemplated by the
Relevant Documents);
(d) except to the extent set forth in the Relevant Documents, shall pay
its liabilities out of its own funds, and, except as set forth in the
Relevant Documents, shall not permit any of the other Southern
Affiliated Entities to pay such liabilities;
(e) shall not hold out employees or officers of any of the other
Southern Affiliated Entities as employees or officers of the
Corporation, nor permit employees or officers of the Corporation to be
held out as employees or officers of any of the other Southern
Affiliated Entities; provided that said restrictions shall not preclude
a particular employee or officer of any of the other Southern
Affiliated Entities from also holding a position as an employee or
officer of the Corporation, so long as the Corporation takes reasonably
appropriate steps to assure that unaffiliated parties dealing with such
employee or officer are able to distinguish the particular entity which
such person is representing at any particular time;
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<PAGE>
(f) shall not guarantee or become obligated for the debts of any of the
other Southern Affiliated Entities or hold out its credit as being
available to satisfy the obligations of any of the other Southern
Affiliated Entities, other than (i) obligations to reimburse SEI for
expenses paid by SEI on behalf of the Corporation in connection with
the operation and maintenance of the Energy Complex in accordance with
the Relevant Documents, (ii) obligations of the Company related to the
First Mortgage Bonds, the Tax-Exempt Bonds or the Working Capital
Facility, and (iii) obligations to indemnify SEI for certain claims and
losses relating to SEI's operation and maintenance of the Energy
Complex in accordance with the Relevant Documents;
(g) shall allocate fairly and equitably any overhead for office
space shared with any of the other Southern Affiliated Entities;
(h) shall use stationery, invoices, checks and other business forms
identifiably separate and distinct from those of any of the other
Southern Affiliated Entities. Such items shall bear a mailing address
and telephone number for the Corporation which is different from that
used by any of the other Southern Affiliated Entities. The Corporation
further shall maintain, as its principal address and telephone number
for receipt of notices and other communications under the Relevant
Documents, a mailing address and telephone number separate from those
of any of the other Southern Affiliated Entities;
(i) shall not pledge its funds or assets for the benefit of any of the
other Southern Affiliated Entities, except as set forth in the Relevant
Documents; and
(j) at all times shall hold itself out to the public as an entity
legally separate and distinct from any of the other Southern Affiliated
Entities.
XI.
The Corporation shall at all times maintain and observe all corporate
formalities in the conduct of its affairs and with respect to the acquisition,
ownership, encumbrance or transfer of any material assets or the incurrence of
any material indebtedness. Such formalities shall include without limitation the
holding of appropriate periodic meetings of its Board of Directors and
shareholders in accordance with Alabama law, the recording of minutes of such
meetings and any other proceedings of its shareholders and Board of Directors,
the adoption by the Board of Directors (and, as appropriate, the shareholders)
of resolutions to approve material actions of the Corporation and the execution
and maintenance of appropriate documentation with respect to and in order to
evidence the acquisition, ownership, encumbrance or transfer of any material
assets or the incurrence of any material indebtedness.
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<PAGE>
AMENDMENTS TO AND RESTATEMENT OF THE
ARTICLES OF INCORPORATION
OF
MOBILE ENERGY SERVICES HOLDINGS, INC.
Pursuant to, and with the effect provided in, Sections 10-2B-10.01 to
10-2B-10.07 of the Code of Alabama, 1975, as amended (the "Code"), the
undersigned corporation adopts the following Amendments to and Restatement of
the Articles of Incorporation:
FIRST: The name of the corporation is Mobile Energy Services Holdings,
Inc. (the "Corporation").
SECOND: The following amendments to the Corporation's Articles of
Incorporation were adopted in the manner provided by the Code by the
Corporation's sole shareholder, as of July 13, 1995:
"III.
The nature of the business of the Corporation and its objects, purposes
and powers shall be limited to the following activities:
(a) to acquire, finance, own, expand, improve and operate or contract
for the operation of the energy and recovery complex and related
facilities located at the pulp and tissue mill in Mobile, Alabama owned
by Scott Paper Company, a Pennsylvania corporation ("Scott") (or any
successor thereto), and the paper mill owned by S.D. Warren Company, a
Pennsylvania corporation ("S.D. Warren") (or any successor thereto)
(the "Energy Complex");
(b) to serve as a member of and to own a majority of the outstanding
membership interests of Mobile Energy Services Company, L.L.C., an
Alabama limited liability company (the "Company"), and to act as the
sole manager thereof, provided that the foregoing shall not be
construed as restraining the Corporation from transferring interests in
the Company (i) in an amount not to exceed one percent (1%) of the
total interests in the Company to The Southern Company, a Delaware
corporation ("Southern"), prior to the issuance of the "Offered
Securities" (as hereinafter defined) by the Company; (ii) on
commercially reasonable terms to third parties that are not "Southern
Affiliated Entities" (as hereinafter defined), and permitting such
third parties to participate in the management of the Company, even if
the effect thereof would be to cause (A) the Corporation's ownership
interests in the Company to be reduced below a majority of the
ownership interests in the Company or (B) one or more such third
parties to acquire or share managerial control of the Company; or (iii)
to a Southern Affiliated Entity whose Articles of Incorporation (or
other organizational documents) contain the same operative
<PAGE>
provisions as these Articles and which undertakes, for the benefit of
the "Bondholders" (as herein defined), each of the covenants and
restrictions of the Corporation set forth in the indenture among the
Company, the Corporation, as guarantor, and First Union National Bank
of Georgia ("First Union"), as trustee (the "Indenture") relating to up
to $290,000,000 aggregate principal amount of first mortgage bonds (the
"First Mortgage Bonds"), the Amended and Restated Lease and Agreement
(the "Tax-Exempt Lease") among the Company, the Corporation, as
guarantor, and the Industrial Development Board of the City of Mobile,
Alabama (the "IDB") entered into in connection with the issuance by the
IDB, for the benefit of the Company of $85,000,000 aggregate principal
amount of tax-exempt bonds (the "Tax-Exempt Bonds") pursuant to the
Amended and Restated Trust Indenture between the IDB and First Union
(the "Tax-Exempt Indenture") in each case relating to compliance with
and amendment of these Articles. For purposes of these Articles, the
term "Southern Affiliated Entities" shall mean the Corporation,
Southern, Southern Electric International, Inc., a Delaware corporation
("SEI"), the Company and any other corporation, partnership, limited
liability company or other business entity with respect to which the
Corporation, Southern, SEI, or the Company, through ownership of voting
securities, by contract or otherwise, has the power to direct (or cause
the direction of) the management and policies of such corporation,
partnership, limited liability company or other business entity;
(c) to enter into and perform any agreement providing for or relating
to (i) the issuance by the Company of the First Mortgage Bonds, the
issuance by the IDB of the Tax-Exempt Bonds, and the working capital
facility to be provided to the Company by an unaffiliated third party
(the "Working Capital Facility"), and in each case to receive and
dispose of proceeds thereunder or in exchange therefor and to provide
for any refinancing or refunding of the foregoing (the First Mortgage
Bonds, the Tax-Exempt Bonds and the Working Capital Facility are
sometimes collectively referred to as the "Offered Securities") and
(ii) the issuance by the Company of other additional indebtedness as
may be consistent with clause (g) of this Article III;
(d) to take all actions necessary to offer the First Mortgage
Bonds and the Tax-Exempt Bonds to the purchasers thereof (the
"Bondholders");
(e) to enter into and perform any agreement for or relating to the
management and administration of the activities of the Corporation or
the Company;
(f) to enter into and perform any agreements to accomplish the
purposes set forth in paragraphs (a), (b), (c), (d) or (e) above; and
(g) to engage in any lawful act or activity, and to exercise any powers
permitted to corporations organized under the laws of the State of
Alabama, that are incidental to and necessary, suitable or convenient
for the accomplishment of the purposes set forth in (a), (b), (c), (d),
(e) or (f) above.
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<PAGE>
X.
The unanimous approval of the Board of Directors of the Corporation is
required: (a) to file a bankruptcy or insolvency petition or otherwise institute
insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss.
301, or any successor thereto (the "Bankruptcy Code"), or any similar statute,
seeking protection of the Corporation as a debtor in such proceedings; (b) to
consent to the filing of a bankruptcy or insolvency petition or to the
institution of an insolvency proceeding under Section 301 of the Bankruptcy
Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar statute
seeking protection of the Company as a debtor in such proceeding, or (c) to
amend, repeal or supersede any provision of Articles III, X, XI, XII or XIII
hereof unless, in connection with such amendment, repeal or supersession, the
Corporation receives from a nationally recognized law firm acceptable to those
rating agencies which at the time of such opinion are rating the First Mortgage
Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern
or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy
court, exercising reasonable judgment after full consideration of all relevant
circumstances, in a properly presented case, would not disregard the separate
corporate existence of the Corporation or the Company so as to order substantive
consolidation of the assets and liabilities of the Corporation or the Company
with those of SEI or Southern.
The Board of Directors of the Corporation shall consist of a number as
determined by the By-Laws of the Corporation, provided that one duly qualified
and elected director at all times shall constitute an "Independent Director" (as
hereinafter defined). For purposes of the foregoing, the term "Independent
Director" shall mean an individual who, at all times during such individual's
service as a director of the Corporation, is not any of the following:
(a) a person who received more than eight percent (8%) of his or her
gross income (as defined for Federal income tax purposes) during either
of the preceding two calendar years ended December 31 from wages,
dividends, distributions or other payments received directly from the
Southern Affiliated Entities;
(b) a director, general partner, member, trustee, beneficiary or the
holder of ten percent (10%) or more of the equity interests of any
corporation, partnership, limited liability company, trust or other
entity which received more than eight (8%) of its gross revenues during
either of the preceding two calendar years ended December 31 from
wages, dividends, distributions or other payments received from the
Southern Affiliated Entities;
(c) a person who possesses equity or other interests in the Southern
Affiliated Entities, or debt of any of the Southern Affiliated
Entities, which, in the aggregate, have a fair market value in excess
of eight percent (8%) of the net worth of such person;
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<PAGE>
(d) a person who, on such date or at any time during the two years
preceding such date, was a director of any of the Southern Affiliated
Entities (other than the Corporation) or was an officer or employee of
any of the Southern Affiliated Entities (including the Corporation); or
(e) a parent, child, sibling or spouse of any person described in
clauses (a), (b), (c) or (d) above.
XI.
Neither the Corporation's funds nor any other assets thereof shall be
commingled with those of any other person or entity, and the Corporation's funds
shall be clearly traceable at all times and in all transactions. The
Corporation's assets shall remain identifiably separate from those of all other
entities such that there shall be no material difficulty in segregating and
ascertaining the assets of the Corporation as distinct from those of the other
Southern Affiliated Entities or any other person or entity. Notwithstanding the
foregoing: (a) equity or other contributions from any shareholder of the
Corporation may be received by the Corporation, deposited to the account of the
Corporation and treated as funds of the Corporation, and (b) revenues of the
Corporation or the Company may be collected by affiliates of the Corporation and
such affiliates may pay liabilities of the Corporation or the Company, as
applicable, therewith pursuant to the "Relevant Documents" (as hereinafter
defined), so long as appropriate records are maintained by the Corporation to
identify at all times funds belonging to the Corporation or the Company,
respectively. For purposes of these Articles, the "Relevant Documents" shall
mean: (1) the Registration Statement filed on Form S-1 under the Securities Act
of 1933, as amended, and the Prospectus, each relating to the issuance of the
First Mortgage Bonds, and the Limited Offering Memorandum issued in connection
with the sale of the Tax-Exempt Bonds; (2) the Articles of Incorporation of SEI
and Southern, the Articles of Organization of the Company, and these Articles;
(3) the By-Laws of the Corporation, SEI and Southern; (4) the Indenture, the
Tax-Exempt Indenture and the Tax-Exempt Lease Agreement; (5) the Working Capital
Facility and the Corporation's guaranty in respect thereof; (6) those certain
guaranties from Southern or appropriate letters of credit necessary to satisfy
certain of the Company's reserve account funding requirements under the
Indenture, the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as
hereinafter defined); (7) the Intercreditor Agreement entered into by and among
the Corporation, the Company, First Union, as trustee with respect to the First
Mortgage Bonds, First Union, as trustee with respect to the Tax-Exempt Bonds,
the IDB, Banque Paribas, as Working Capital Facility provider, and Bankers Trust
Company, as Collateral Agent (the "Intercreditor Agreement"); (8) the Asset
Purchase Agreement dated as of December 12, 1994, between Scott Paper Company
("Scott") and the Corporation; (9) the Pulp Mill Environmental Indemnity
Agreement, dated as December 12, 1994, between Scott and the Corporation (the
"Pulp Mill Environmental Indemnity Agreement"), the Tissue Mill Environmental
Indemnity Agreement, dated as December 12, 1994, between Scott and the
Corporation (the "Tissue Mill Environmental Indemnity Agreement"), the Paper
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<PAGE>
Mill Environmental Indemnity Agreement, dated as December 12, 1994, between S.D.
Warren and the Corporation, and the Environmental Guaranty dated as of December
12, 1994, made by Southern (together with the Pulp Mill Environmental Indemnity
Agreement and the Tissue Mill Environmental Indemnity Agreement, the
"Environmental Indemnity Agreements") in connection with the Company's
obligations under the Environmental Indemnity Agreements; (10) the
Administrative Services Agreements (the "SCS Agreements"), pursuant to which
Southern Company Services, Inc. ("SCS") will provide certain administrative
services to the Corporation and the Company, the Operations and Maintenance
Agreement, dated as of December 12, 1994 between the Corporation and SEI and the
Administrative Services Agreement dated as of July 14, 1995 between SEI and the
Corporation; (11) the agreement between the Corporation and Southern relating to
the allocation of certain tax liabilities; (12) the Mill Owner Maintenance
Reserve Account Agreement among the Company, Southern, Scott and S.D. Warren;
and (13) the Employee Transition Agreement among Scott, the Corporation and SEI,
in each case as in effect on the date of issuance and sale of the First Mortgage
Bonds or as may be amended, replaced or otherwise modified from time to time,
provided that in connection with any such amendment, replacement or
modification, the Corporation receives from a nationally recognized law firm
acceptable to those rating agencies which at the time of such opinion are rating
the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the
effect that, if Southern or SEI were to become a debtor under the Bankruptcy
Code, a federal bankruptcy court, exercising reasonable judgment after full
consideration of all relevant circumstances, in a properly presented case, would
not disregard the separate corporate existence of the Company or the Corporation
so as to order substantive consolidation of the assets and liabilities of the
Company or the Corporation with those of SEI or Southern.
XII.
The Corporation:
(a) shall maintain corporate records and books of account which at all
times shall be separate from those of any other person or entity and
shall be materially correct and complete;
(b) shall conduct its own business solely in its own name or through
its authorized agents, and not in the name of any of the other Southern
Affiliated Entities, in a manner which is not likely to mislead others
as to the identity of the legal entity with which such others are
dealing, shall not permit any person or entity to conduct any business
of such person or entity in the Corporation's name, and without
limiting the generality of the foregoing: (i) shall ensure that all
oral and written communications, including without limitation, letters,
invoices, purchase orders, contracts, statements and applications, are
and will be made solely in the name of the entity to which they relate
or in the name of such entity's authorized agents, and (ii) shall not
refer, and shall ensure that the other Southern Affiliated Entities do
not refer, to the Corporation or the Company as a division
-5-
<PAGE>
or department of any other entity;
(c) shall prepare financial statements separate from any other person
or entity, which shall disclose its separate existence and the
transactions contemplated by the Relevant Documents in accordance with
generally accepted accounting principles, and shall disclose that the
assets of the Corporation are not available to any creditor of any
affiliate of the Corporation (other than as contemplated by the
Relevant Documents);
(d) except to the extent set forth in the Relevant Documents, shall pay
its liabilities out of its own funds, and, except as set forth in the
Relevant Documents, shall not permit any of the other Southern
Affiliated Entities to pay such liabilities;
(e) shall not hold out employees or officers of any of the other
Southern Affiliated Entities as employees or officers of the
Corporation, nor permit employees or officers of the Corporation to be
held out as employees or officers of any of the other Southern
Affiliated Entities; provided that said restrictions shall not preclude
a particular employee or officer of any of the other Southern
Affiliated Entities from also holding a position as an employee or
officer of the Corporation, so long as the Corporation takes reasonably
appropriate steps to assure that unaffiliated parties dealing with such
employee or officer are able to distinguish the particular entity which
such person is representing at any particular time;
(f) shall not guarantee or become obligated for the debts of any of the
other Southern Affiliated Entities or hold out its credit as being
available to satisfy the obligations of any of the other Southern
Affiliated Entities, other than (i) obligations to reimburse SEI for
expenses paid by SEI on behalf of the Corporation in connection with
the operation and maintenance of the Energy Complex in accordance with
the Relevant Documents, (ii) obligations of the Company related to the
First Mortgage Bonds, the Tax-Exempt Bonds or the Working Capital
Facility, and (iii) obligations to indemnify SEI for certain claims and
losses relating to SEI's operation and maintenance of the Energy
Complex in accordance with the Relevant Documents;
(g) shall allocate fairly and equitably any overhead for office
space shared with any of the other Southern Affiliated Entities;
(h) shall use stationery, invoices, checks and other business forms
identifiably separate and distinct from those of any of the other
Southern Affiliated Entities. Such items shall bear a mailing address
and telephone number for the Corporation which is different from that
used by any of the other Southern Affiliated Entities. The Corporation
further shall maintain, as its principal address and telephone number
for receipt of notices and other communications under the Relevant
Documents, a mailing address and telephone number separate from those
of any of the other Southern Affiliated Entities;
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<PAGE>
(i) shall not pledge its funds or assets for the benefit of any of the
other Southern Affiliated Entities, except as set forth in the Relevant
Documents; and
(j) at all times shall hold itself out to the public as an entity
legally separate and distinct from any of the other Southern Affiliated
Entities.
XIII.
The Corporation shall at all times maintain and observe all corporate
formalities in the conduct of its affairs and with respect to the acquisition,
ownership, encumbrance or transfer of any material assets or the incurrence of
any material indebtedness. Such formalities shall include without limitation the
holding of appropriate periodic meetings of its Board of Directors and
shareholders in accordance with Alabama law, the recording of minutes of such
meetings and any other proceedings of its shareholders and Board of Directors,
the adoption by the Board of Directors (and, as appropriate, the shareholders)
of resolutions to approve material actions of the Corporation and the execution
and maintenance of appropriate documentation with respect to and in order to
evidence the acquisition, ownership, encumbrance or transfer of any material
assets or the incurrence of any material indebtedness."
THIRD: The Corporation had 1,000 shares of $1.00 par value Common Stock
issued and outstanding at the time of the adoption of this amendment. Of the
1,000 shares of $1.00 par value Common Stock issued and outstanding, 1,000
shares voted to approve, and 0 shares voted against or abstained from voting on
the foregoing amendment.
FOURTH: The Articles of Incorporation of the Corporation are hereby
restated as follows:
I.
The name of the corporation is MOBILE ENERGY SERVICES HOLDINGS, INC.
(the "Corporation").
II.
The Corporation shall have perpetual duration.
III.
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<PAGE>
The nature of the business of the Corporation and its objects, purposes
and powers shall be limited to the following activities:
(a) to acquire, finance, own, expand, improve and operate or contract
for the operation of the energy and recovery complex and related
facilities located at the pulp and tissue mill in Mobile, Alabama owned
by Scott Paper Company, a Pennsylvania corporation ("Scott") (or any
successor thereto), and the paper mill owned by S.D. Warren Company, a
Pennsylvania corporation ("S.D. Warren") (or any successor thereto)
(the "Energy Complex");
(b) to serve as a member of and to own a majority of the outstanding
membership interests of Mobile Energy Services Company, L.L.C., an
Alabama limited liability company (the "Company"), and to act as the
sole manager thereof, provided that the foregoing shall not be
construed as restraining the Corporation from transferring interests in
the Company (i) in an amount not to exceed one percent (1%) of the
total interests in the Company to The Southern Company, a Delaware
corporation ("Southern"), prior to the issuance of the "Offered
Securities" (as hereinafter defined) by the Company; (ii) on
commercially reasonable terms to third parties that are not "Southern
Affiliated Entities" (as hereinafter defined), and permitting such
third parties to participate in the management of the Company, even if
the effect thereof would be to cause (A) the Corporation's ownership
interests in the Company to be reduced below a majority of the
ownership interests in the Company or (B) one or more such third
parties to acquire or share managerial control of the Company; or (iii)
to a Southern Affiliated Entity whose Articles of Incorporation (or
other organizational documents) contain the same operative provisions
as these Articles and which undertakes, for the benefit of the
"Bondholders" (as herein defined), each of the covenants and
restrictions of the Corporation set forth in the indenture among the
Company, the Corporation, as guarantor, and First Union National Bank
of Georgia ("First Union"), as trustee (the "Indenture") relating to up
to $290,000,000 aggregate principal amount of first mortgage bonds (the
"First Mortgage Bonds"), the Amended and Restated Lease and Agreement
(the "Tax-Exempt Lease") among the Company, the Corporation, as
guarantor, and the Industrial Development Board of the City of Mobile,
Alabama (the "IDB") entered into in connection with the issuance by the
IDB, for the benefit of the Company of $85,000,000 aggregate principal
amount of tax-exempt bonds (the "Tax-Exempt Bonds") pursuant to the
Amended and Restated Trust Indenture between the IDB and First Union
(the "Tax-Exempt Indenture") in each case relating to compliance with
and amendment of these Articles. For purposes of these Articles, the
term "Southern Affiliated Entities" shall mean the Corporation,
Southern, Southern Electric International, Inc., a Delaware corporation
("SEI"), the Company and any other corporation, partnership, limited
liability company or other business entity with respect to which the
Corporation, Southern, SEI, or the Company, through ownership of voting
securities, by contract or otherwise, has the power to direct (or cause
the direction of) the management and policies of such corporation,
partnership, limited liability company or other business entity;
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<PAGE>
(c) to enter into and perform any agreement providing for or relating
to (i) the issuance by the Company of the First Mortgage Bonds, the
issuance by the IDB of the Tax-Exempt Bonds, and the working capital
facility to be provided to the Company by an unaffiliated third party
(the "Working Capital Facility"), and in each case to receive and
dispose of proceeds thereunder or in exchange therefor and to provide
for any refinancing or refunding of the foregoing (the First Mortgage
Bonds, the Tax-Exempt Bonds and the Working Capital Facility are
sometimes collectively referred to as the "Offered Securities") and
(ii) the issuance by the Company of other additional indebtedness as
may be consistent with clause (g) of this Article III;
(d) to take all actions necessary to offer the First Mortgage Bonds
and the Tax-Exempt Bonds to the purchasers thereof (the "Bondholders");
(e) to enter into and perform any agreement for or relating to the
management and administration of the activities of the Corporation or
the Company;
(f) to enter into and perform any agreements to accomplish the purposes
set forth in paragraphs (a), (b), (c), (d) or (e) above; and
(g) to engage in any lawful act or activity, and to exercise any powers
permitted to corporations organized under the laws of the State of
Alabama, that are incidental to and necessary, suitable or convenient
for the accomplishment of the purposes set forth in (a), (b), (c), (d),
(e) or (f) above.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the By-Laws of the Corporation.
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<PAGE>
VI.
To the fullest extent that the General Corporation Law of Alabama, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
VII.
The initial registered office of the Corporation in the State of
Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery Co.,
Alabama 36104. The initial registered agent of the Corporation at such address
shall be The Corporation Company.
VIII.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the By-Laws of the Corporation. The initial Board
of Directors of the Corporation shall consist of one (1)member, whose name and
corresponding mailing address is:
Raymond D. Hill
c/o Southern Electric International, Inc.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
IX.
The name and address of the Incorporator of the Corporation are
Elizabeth B. Chandler, NationsBank Plaza, 600 Peachtree Street, N.E., Suite
5200, Atlanta, Georgia 30309-2216.
X.
The unanimous approval of the Board of Directors of the Corporation is
required: (a) to file a bankruptcy or insolvency petition or otherwise institute
insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss.
301, or any successor thereto (the "Bankruptcy Code"), or any similar statute,
seeking protection of the Corporation as a debtor
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in such proceedings; (b) to consent to the filing of a bankruptcy or insolvency
petition or to the institution of an insolvency proceeding under Section 301 of
the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar
statute seeking protection of the Company as a debtor in such proceeding, or (c)
to amend, repeal or supersede any provision of Articles III, X, XI, XII or XIII
hereof unless, in connection with such amendment, repeal or supersession, the
Corporation receives from a nationally recognized law firm acceptable to those
rating agencies which at the time of such opinion are rating the First Mortgage
Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern
or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy
court, exercising reasonable judgment after full consideration of all relevant
circumstances, in a properly presented case, would not disregard the separate
corporate existence of the Corporation or the Company so as to order substantive
consolidation of the assets and liabilities of the Corporation or the Company
with those of SEI or Southern.
The Board of Directors of the Corporation shall consist of a number as
determined by the By-Laws of the Corporation, provided that one duly qualified
and elected director at all times shall constitute an "Independent Director" (as
hereinafter defined). For purposes of the foregoing, the term "Independent
Director" shall mean an individual who, at all times during such individual's
service as a director of the Corporation, is not any of the following:
(a) a person who received more than eight percent (8%) of his or her
gross income (as defined for Federal income tax purposes) during either
of the preceding two calendar years ended December 31 from wages,
dividends, distributions or other payments received directly from the
Southern Affiliated Entities;
(b) a director, general partner, member, trustee, beneficiary or the
holder of ten percent (10%) or more of the equity interests of any
corporation, partnership, limited liability company, trust or other
entity which received more than eight (8%) of its gross revenues during
either of the preceding two calendar years ended December 31 from
wages, dividends, distributions or other payments received from the
Southern Affiliated Entities;
(c) a person who possesses equity or other interests in the Southern
Affiliated Entities, or debt of any of the Southern Affiliated
Entities, which, in the aggregate, have a fair market value in excess
of eight percent (8%) of the net worth of such person;
(d) a person who, on such date or at any time during the two years
preceding such date, was a director of any of the Southern Affiliated
Entities (other than the Corporation) or was an officer or employee of
any of the Southern Affiliated Entities (including the Corporation); or
(e) a parent, child, sibling or spouse of any person described in
clauses (a), (b), (c) or (d) above.
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XI.
Neither the Corporation's funds nor any other assets thereof shall be
commingled with those of any other person or entity, and the Corporation's funds
shall be clearly traceable at all times and in all transactions. The
Corporation's assets shall remain identifiably separate from those of all other
entities such that there shall be no material difficulty in segregating and
ascertaining the assets of the Corporation as distinct from those of the other
Southern Affiliated Entities or any other person or entity. Notwithstanding the
foregoing: (a) equity or other contributions from any shareholder of the
Corporation may be received by the Corporation, deposited to the account of the
Corporation and treated as funds of the Corporation, and (b) revenues of the
Corporation or the Company may be collected by affiliates of the Corporation and
such affiliates may pay liabilities of the Corporation or the Company, as
applicable, therewith pursuant to the "Relevant Documents" (as hereinafter
defined), so long as appropriate records are maintained by the Corporation to
identify at all times funds belonging to the Corporation or the Company,
respectively. For purposes of these Articles, the "Relevant Documents" shall
mean: (1) the Registration Statement filed on Form S-1 under the Securities Act
of 1933, as amended, and the Prospectus, each relating to the issuance of the
First Mortgage Bonds, and the Limited Offering Memorandum issued in connection
with the sale of the Tax-Exempt Bonds; (2) the Articles of Incorporation of SEI
and Southern, the Articles of Organization of the Company, and these Articles;
(3) the By-Laws of the Corporation, SEI and Southern; (4) the Indenture, the
Tax-Exempt Indenture and the Tax-Exempt Lease Agreement; (5) the Working Capital
Facility and the Corporation's guaranty in respect thereof; (6) those certain
guaranties from Southern or appropriate letters of credit necessary to satisfy
certain of the Company's reserve account funding requirements under the
Indenture, the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as
hereinafter defined); (7) the Intercreditor Agreement entered into by and among
the Corporation, the Company, First Union, as trustee with respect to the First
Mortgage Bonds, First Union, as trustee with respect to the Tax-Exempt Bonds,
the IDB, Banque Paribas, as Working Capital Facility provider, and Bankers Trust
Company, as Collateral Agent (the "Intercreditor Agreement"); (8) the Asset
Purchase Agreement dated as of December 12, 1994, between Scott Paper Company
("Scott") and the Corporation; (9) the Pulp Mill Environmental Indemnity
Agreement, dated as December 12, 1994, between Scott and the Corporation (the
"Pulp Mill Environmental Indemnity Agreement"), the Tissue Mill Environmental
Indemnity Agreement, dated as December 12, 1994, between Scott and the
Corporation (the "Tissue Mill Environmental Indemnity Agreement"), the Paper
Mill Environmental Indemnity Agreement, dated as December 12, 1994, between S.D.
Warren and the Corporation, and the Environmental Guaranty dated as of December
12, 1994, made by Southern (together with the Pulp Mill Environmental Indemnity
Agreement and the Tissue Mill Environmental Indemnity Agreement, the
"Environmental Indemnity Agreements") in connection with the Company's
obligations under the Environmental Indemnity Agreements; (10) the
Administrative Services Agreements (the "SCS Agreements"), pursuant to which
Southern Company Services, Inc. ("SCS") will provide certain administrative
services to the Corporation
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<PAGE>
and the Company, the Operations and Maintenance Agreement, dated as of December
12, 1994 between the Corporation and SEI and the Administrative Services
Agreement dated as of July 14, 1995 between SEI and the Corporation; (11) the
agreement between the Corporation and Southern relating to the allocation of
certain tax liabilities; (12) the Mill Owner Maintenance Reserve Account
Agreement among the Company, Southern, Scott and S.D. Warren; and (13) the
Employee Transition Agreement among Scott, the Corporation and SEI, in each case
as in effect on the date of issuance and sale of the First Mortgage Bonds or as
may be amended, replaced or otherwise modified from time to time, provided that
in connection with any such amendment, replacement or modification, the
Corporation receives from a nationally recognized law firm acceptable to those
rating agencies which at the time of such opinion are rating the First Mortgage
Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern
or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy
court, exercising reasonable judgment after full consideration of all relevant
circumstances, in a properly presented case, would not disregard the separate
corporate existence of the Company or the Corporation so as to order substantive
consolidation of the assets and liabilities of the Company or the Corporation
with those of SEI or Southern.
XII.
The Corporation:
(a) shall maintain corporate records and books of account which at all
times shall be separate from those of any other person or entity and
shall be materially correct and complete;
(b) shall conduct its own business solely in its own name or through
its authorized agents, and not in the name of any of the other Southern
Affiliated Entities, in a manner which is not likely to mislead others
as to the identity of the legal entity with which such others are
dealing, shall not permit any person or entity to conduct any business
of such person or entity in the Corporation's name, and without
limiting the generality of the foregoing: (iii) shall ensure that all
oral and written communications, including without limitation, letters,
invoices, purchase orders, contracts, statements and applications, are
and will be made solely in the name of the entity to which they relate
or in the name of such entity's authorized agents, and (iv) shall not
refer, and shall ensure that the other Southern Affiliated Entities do
not refer, to the Corporation or the Company as a division or
department of any other entity;
(c) shall prepare financial statements separate from any other person
or entity, which shall disclose its separate existence and the
transactions contemplated by the Relevant Documents in accordance with
generally accepted accounting principles, and shall disclose that the
assets of the Corporation are not available to any creditor of any
affiliate of the Corporation (other than as contemplated by the
Relevant Documents);
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<PAGE>
(d) except to the extent set forth in the Relevant Documents, shall pay
its liabilities out of its own funds, and, except as set forth in the
Relevant Documents, shall not permit any of the other Southern
Affiliated Entities to pay such liabilities;
(e) shall not hold out employees or officers of any of the other
Southern Affiliated Entities as employees or officers of the
Corporation, nor permit employees or officers of the Corporation to be
held out as employees or officers of any of the other Southern
Affiliated Entities; provided that said restrictions shall not preclude
a particular employee or officer of any of the other Southern
Affiliated Entities from also holding a position as an employee or
officer of the Corporation, so long as the Corporation takes reasonably
appropriate steps to assure that unaffiliated parties dealing with such
employee or officer are able to distinguish the particular entity which
such person is representing at any particular time;
(f) shall not guarantee or become obligated for the debts of any of the
other Southern Affiliated Entities or hold out its credit as being
available to satisfy the obligations of any of the other Southern
Affiliated Entities, other than (i) obligations to reimburse SEI for
expenses paid by SEI on behalf of the Corporation in connection with
the operation and maintenance of the Energy Complex in accordance with
the Relevant Documents, (ii) obligations of the Company related to the
First Mortgage Bonds, the Tax-Exempt Bonds or the Working Capital
Facility, and (iii) obligations to indemnify SEI for certain claims and
losses relating to SEI's operation and maintenance of the Energy
Complex in accordance with the Relevant Documents;
(g) shall allocate fairly and equitably any overhead for office
space shared with any of the other Southern Affiliated Entities;
(h) shall use stationery, invoices, checks and other business forms
identifiably separate and distinct from those of any of the other
Southern Affiliated Entities. Such items shall bear a mailing address
and telephone number for the Corporation which is different from that
used by any of the other Southern Affiliated Entities. The Corporation
further shall maintain, as its principal address and telephone number
for receipt of notices and other communications under the Relevant
Documents, a mailing address and telephone number separate from those
of any of the other Southern Affiliated Entities;
(i) shall not pledge its funds or assets for the benefit of any of the
other Southern Affiliated Entities, except as set forth in the Relevant
Documents; and
(j) at all times shall hold itself out to the public as an entity
legally separate and distinct from any of the other Southern Affiliated
Entities.
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<PAGE>
XIII.
The Corporation shall at all times maintain and observe all corporate
formalities in the conduct of its affairs and with respect to the acquisition,
ownership, encumbrance or transfer of any material assets or the incurrence of
any material indebtedness. Such formalities shall include without limitation the
holding of appropriate periodic meetings of its Board of Directors and
shareholders in accordance with Alabama law, the recording of minutes of such
meetings and any other proceedings of its shareholders and Board of Directors,
the adoption by the Board of Directors (and, as appropriate, the shareholders)
of resolutions to approve material actions of the Corporation and the execution
and maintenance of appropriate documentation with respect to and in order to
evidence the acquisition, ownership, encumbrance or transfer of any material
assets or the incurrence of any material indebtedness.
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EXHIBIT B-24
Effective - May 25, 1995
MOBILE ENERGY SERVICES HOLDINGS, INC.
* * * * *
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office of the corporation shall be in the
State of Alabama at such location as determined by the board of directors from
time to time.
Section 2. The corporation's principal office shall be in Atlanta,
DeKalb County, Georgia.
Section 3. The corporation may also have offices at such other places
both within and without the State of Alabama as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of stockholders for the election of directors
shall be held at such place as may be fixed from time to time by the board of
directors, or at such other place, within or without the State of Alabama, as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Alabama, as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president or by a majority of the board of
directors and shall be called by the president or secretary within 21 days of
the receipt of a written demand of the holders of at least ten percent (10%) of
all the votes entitled to be cast on any issue proposed to be considered at the
proposed special meeting. Such demand shall be signed by the stockholders
demanding the meeting and shall state the purpose or purposes of the proposed
meeting.
Section 4. Written notice stating the place, date and hour of all
meetings shall, unless waived, be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting, and in the case of special meetings, the purpose thereof
shall be stated.
Section 5. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 6. Shares entitled to vote may take action on a matter at a
meeting only if a quorum of those shares exists with respect to that matter. A
majority of the shares entitled to vote on the matter, represented in person or
by proxy, shall constitute a quorum for action on that matter. Once a share is
represented for any purpose at a meeting, it is, unless established to the
contrary, presumed present for quorum purposes for the remainder of the meeting.
If a quorum is present when a vote is taken, action on a matter is approved if
the votes cast favoring the action exceed the votes cast opposing the action,
unless the Constitution of Alabama, the articles of incorporation, or the
statutes require a greater number of affirmative votes. If, however, a quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 7. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the Constitution
of Alabama, the statutes or the articles of incorporation a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 8. Unless otherwise provided in the articles of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may
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be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by all
stockholders entitled to vote on the action, and such consent shall be delivered
to the corporation for inclusion in the minutes or filing with the corporate
records. The record date for determining the stockholders entitled to take
action without a meeting is the date the first stockholder signs the consent.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than fifteen (15). The initial
board shall consist of one (1) director. Thereafter, the number of directors may
be fixed or changed from time to time by the stockholders, or, if the articles
of incorporation so provide, by the board of directors. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section
2 of this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
Section 2. If a vacancy occurs on the board of directors: (i) the
stockholders may fill the vacancy, whether resulting from an increase in the
number of directors or otherwise; or (ii) the board of directors may fill the
vacancy, except that the directors shall have the power to fill a vacancy
resulting from an increase in the number of directors only if expressly provided
for in the articles of incorporation; or (iii) if the directors remaining in
office constitute fewer than a quorum of the board, they may fill the vacancy,
if such vacancy is one that the directors are authorized to fill, by the
affirmative vote of a majority of all the directors remaining in office. A
vacancy that will occur at a specific later date may be filled before the
vacancy occurs but the new director may not take office until the vacancy
occurs.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the articles of incorporation or by these bylaws directed or required to be
exercised or done by the stockholders.
Section 4. The board of directors may elect a chairman and one or more
vice-chairmen. The chairman and vice-chairmen shall perform such duties and have
such powers as the board of directors may from time to time prescribe.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Alabama.
Section 6. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting
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and no notice of such meeting shall be necessary to the newly elected directors
in order legally to constitute the meeting, provided a quorum shall be present.
In the event of the failure of the stockholders to fix the time or place of such
first meeting of the newly elected board of directors, or in the event such
meeting is not held at the time and place so fixed by the stockholders, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the board of directors, or
as shall be specified in a written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 8. Special meetings of the board may be called by the president
on two (2) days' notice to each director, either personally or by mail or by
telegram; special meetings shall be called by the president or secretary in like
manner and on like notice on the written request of two directors unless the
board consists of only one director, in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director. Attendance at or participation by a
director at a special meeting (i) waives objection to lack of any required
notice or defective notice of the meeting, unless the director at the beginning
of the meeting (or promptly upon arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting; and (ii) waives objection to consideration of a
particular matter at the meeting that is not within the purpose described in the
meeting notice, unless the director objects to considering the matter before
action is taken on the matter.
Section 9. At all meetings of the board, a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the articles of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
A director is, unless established to the contrary, presumed present for quorum
purposes for the remainder of the meeting at which he has been present for any
purpose. A director who is present at a meeting of the board or any committee of
the board when corporate action is taken is deemed to assent to the action taken
place unless (i) he objects at the beginning of the meeting (or promptly upon
arrival) to holding it or transacting business at the meeting or, as to a matter
required under the articles of incorporation or these bylaws to be included in
the notice of the purpose of the meeting, he objects before action is taken on
the matter; (ii) his dissent or abstention from action taken is entered in the
minutes of the meeting; or (iii) he delivers written notice of his dissent or
abstention to the presiding officer of the meeting before its adjournment or to
the corporation immediately after adjournment of the meeting. The right of
dissent or abstention is not available to a director who votes in favor of the
action taken.
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<PAGE>
Section 10. Unless otherwise restricted by the articles of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee. Action taken is effective when
the last director signs the consent, unless the consent specifies a different
effective date. Such consent shall have the same effect as a unanimous vote.
Section 11. Unless otherwise restricted by the articles of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 12. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to (1) authorizing distributions, (2) approving or
proposing to stockholders any action requiring approval of the stockholders, (3)
filling vacancies on the board of directors or on any of its committees, (4)
amending articles of incorporation, (5) adopting, amending or repealing these
bylaws, (6) approving a plan of merger not requiring stockholder approval, (7)
authorizing or approving reacquisition of shares, except according to a formula
or method prescribed by the board of directors, or (8) authorizing or approving
the issuance or sale or contract for sale of shares, or determining the
designation and relative rights, preferences and limitations of a class or
series of shares, except that the board of directors may authorize a committee
(or a senior executive officer of the corporation) to do so within limits
specifically prescribed by the board of directors. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors.
Section 13. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
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<PAGE>
COMPENSATION OF DIRECTORS
Section 14. Unless otherwise restricted by the articles of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 15. Unless otherwise restricted by the articles of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes, the articles
of incorporation or these bylaws, notice is required to be given to any director
or stockholder, it shall not be construed to mean personal notice, but such
notice may be given in writing, by mail, telephone, telegraph, teletype,
telecopier, facsimile transmission, or other form of wire or wireless
communication; or by mail or private carrier. Written notice by the corporation
to its stockholders, if in a comprehensible form, is effective when mailed, if
mailed postpaid and correctly addressed to the stockholder's address shown in
the corporation's current record of stockholders.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes, the articles of incorporation or these bylaws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto and shall be delivered to the corporation for inclusion in
the minutes or filing with the corporate records. A person's attendance at a
meeting: (i) waives objection to lack of notice or defective notice of the
meeting, unless the person at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting; and (2) waives objection to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the person objects
to considering the matter before action is taken on the matter.
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<PAGE>
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and controller.
The board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant controllers. Any number of offices may be held by the
same person, unless the articles of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a controller.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salary of the president shall be fixed by the board of
directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. An officer may resign at any time by giving
notice to the corporation. A resignation is effective when the notice is given
unless the notice specifies a later effective date. If a resignation is made
effective at a later date and the corporation accepts the future effective date,
the board of directors may fill the pending vacancy before the effective date if
the board of directors provides that the successor does not take office until
the effective date.
THE PRESIDENT
Section 6. The president, subject to the board of directors, shall be
the chief executive officer of the corporation, shall preside at all meetings of
the stockholders and the board of directors, shall have general and active
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
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<PAGE>
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. In the absence of the secretary or in the event of his
inability or refusal to act, the assistant secretary (or in the event there be
more than one assistant secretary, the assistant secretaries in the order
designated by the board of directors or in the absence of any designation, then
in the order of their election) shall perform the duties of the secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the secretary. The assistant secretary shall perform such
other duties and have such other powers as the board of directors may from time
to time prescribe.
THE CONTROLLER AND ASSISTANT CONTROLLERS
Section 11. The controller shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The controller shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board
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of directors so requires, an account of all his transactions as controller and
of the financial condition of the corporation. The controller shall perform such
other duties and have such other powers as the board of directors may from time
to time prescribe.
Section 13. In the absence of the controller or in the event of his
inability or refusal to act, the assistant controller (or in the event there
shall be more than one assistant controller, the assistant controllers in the
order determined by the board of directors or in the absence of any
determination, then in the order of their election) shall perform the duties of
the controller, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the controller. The assistant controller shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
Section 14. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate. Certificates shall be signed by, or in the name of the corporation
by, the chairman or vice-chairman of the board of directors, or the president or
a vice-president and the controller or an assistant controller, or the secretary
or an assistant secretary of the corporation.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to
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give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in advance,
a record date, which shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting unless the board of directors fixes a new record date for the adjourned
meeting, which it must do if the meeting is adjourned to a date more than one
hundred twenty (120) days after the date fixed for the original meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and entitled to vote as such owner, and entitled to hold liable for
calls and assessments a person registered on its books as the owner of shares,
and the corporation shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Alabama.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of project manager (such positions being
hereinafter referred to as "Management Positions") and who was or is a party or
was or is threatened to be made a party to any
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threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was a director of the corporation or officer or employee of the
corporation holding one or more Management Positions, or is or was serving at
the request of the corporation as a director, alternate director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall be indemnified by the
corporation as a matter of right against any and all expenses (including
attorneys' fees) actually and reasonably incurred by him and against any and all
claims, judgments, fines, penalties, liabilities and amounts paid in settlement
actually incurred by him in defense of such claim, action, suit or proceeding,
including appeals, to the full extent permitted by applicable law. The
indemnification provided by this section shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case upon a determination that the facts then known
would not preclude indemnification under the applicable law, upon receipt of a
written affirmation by such person that he has met the standard of conduct
required by the applicable law and upon receipt of an undertaking by or on
behalf of such person to repay such amount unless it shall ultimately be
determined that such person is entitled to be indemnified by the corporation
under these bylaws or otherwise; provided, however, that the advancement of such
expenses shall not be deemed to be indemnification unless and until it shall
ultimately be determined that such person is entitled to be indemnified by the
corporation.
Section 3. The corporation may purchase and maintain insurance, or
furnish similar protection, at the expense of the corporation on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or any person who is or was serving at the request of the corporation as a
director (or the equivalent), alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against any liability or expense (including
attorneys' fees) asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liability or expense under these bylaws
or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith and in a manner reasonably believed to be in
or, in the case of a director or officer not acting in his official capacity,
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such conduct
was unlawful, which is required, authorized, or approved by any order or orders
issued pursuant to the
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Public Utility Holding Company Act of 1935, the Federal Power Act, or any
federal or state statute or municipal ordinance regulating the corporation or
its parent by reason of their being holding or investment companies, public
utility companies, public utility holding companies, or subsidiaries of public
utility holding companies. In any action, suit, or proceeding based on any act,
omission, step, or conduct, as in this paragraph described, the provisions
hereof shall be brought to the attention of the court. In the event that the
foregoing provisions of this paragraph are found by the court not to constitute
a valid defense on the grounds of not being applicable to the particular class
of plaintiff, each such director and officer, and his heirs, executors, and
administrators, shall be reimbursed for, or indemnified against, all expenses
and liabilities incurred by him or imposed on him, in connection with, or
arising out of, any such action, suit, or proceeding based on any act, omission,
step, or conduct taken or had in good faith as further in this paragraph
described. Such expenses and liabilities shall include, but shall not be limited
to, judgments, court costs, and attorneys' fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the articles of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
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corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Alabama." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the articles of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
articles of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
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EXHIBIT B-37
CERTIFICATE OF INCORPORATION
OF
SEI HOLDINGS IV, INC.
I.
The name of the corporation is SEI HOLDINGS IV, INC. (the "Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801. The initial registered agent of
the Corporation at such address shall be The Corporation Trust Company.
III.
The purpose or purposes for which the Corporation is organized is to
engage exclusively in the direct and indirect ownership of the securities, or an
interest in the business, of any one or more exempt wholesale generators,
foreign utility companies, or "qualifying facilities," as defined under the
Public Utility Regulatory Policies Act of 1978, and in activities that are
incidental thereto.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the By-Laws of the Corporation. The initial Board
of Directors of the corporation shall consist of one (1) member, whose name and
corresponding mailing address is:
James A. Ward
c/o Southern Electric International, Inc.
100 Ashford Center North
Atlanta, Georgia 30338
VI.
The Corporation shall have perpetual duration.
<PAGE>
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the By-Laws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is M.
Stuart Sutherland, Esquire, NationsBank Plaza, 600 Peachtree Street, N.E., Suite
5200, Atlanta, Georgia 30308-2216.
------------------------------------------
M. Stuart Sutherland, Esquire, Incorporator
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MACDONALD-BRYAN, INC.
MACDONALD-BRYAN, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation") hereby certifies:
FIRST: That the Board of Directors of the Corporation duly adopted a
resolution proposing and declaring advisable the following amendment to the
heading and Article I of the Certificate of Incorporation of the Corporation:
RESOLVED, That the name of the Corporation be changed from
MACDONALD-BRYAN, INC. to SOUTHERN ELECTRIC INTERNATIONAL -EUROPE, INC.,
and, to effect such change, the heading and Article I of the Articles
of Incorporation of the Corporation be amended, insofar as they refer
to the name of the Corporation, to read SOUTHERN ELECTRIC INTERNATIONAL
- EUROPE, INC. in lieu of MACDONALD-BRYAN, INC.
SECOND: That the sole shareholder of the Corporation has given its
written consent to said amendment in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its duly authorized
officers to execute this Certificate as of this _____ day of
______________________, 1995.
MACDONALD-BRYAN, INC.
By:
Its:_______________________________
Attest:
Its: ______________________________
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<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SEI HOLDINGS IV, INC.
SEI HOLDINGS IV, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation") hereby certifies:
FIRST: That the Board of Directors of the Corporation duly
adopted a resolution proposing and declaring advisable the
following amendment to the heading and Article 1. of the
Certificate of Incorporation of the Corporation:
RESOLVED, That the name of the Corporation be changed from SEI
HOLDINGS IV, INC. to MACDONALD-BRYAN, INC., and, to effect such change,
the heading and Article I of the Articles of Incorporation of the
Corporation be amended, insofar as they refer to the name of the
Corporation, to read MACDONALD-BRYAN, INC. in lieu of SEI HOLDINGS IV,
INC.
SECOND: That the sole shareholder of the Corporation has given its
written consent to said amendment in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its duly authorized
officers to execute this Certificate as of this 16th day of June, 1995.
SEI HOLDINGS IV, INC.
By:/s/ James A. Ward
Its: Sole Director
Attest:/s/ Tommy Chisholm
Its: Secretary and Treasurer
EXHIBIT B-38
SOUTHERN ELECTRIC INTERNATIONAL - EUROPE, INC.
(FORMERLY SEI HOLDINGS IV, INC.)
* * * * *
AMENDED AND RESTATED
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
<PAGE>
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which
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a quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
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Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
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<PAGE>
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
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<PAGE>
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
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<PAGE>
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
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<PAGE>
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar
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<PAGE>
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record
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<PAGE>
entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting: provided, however, that the board of directors
may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an
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<PAGE>
undertaking by or on behalf of such person to repay such amount unless it shall
ultimately be determined that such person is entitled to be indemnified by the
corporation under these by-laws or otherwise; provided, however, that the
advancement of such expenses shall not be deemed to be indemnification unless
and until it shall ultimately be determined that such person is entitled to be
indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
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ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
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<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing Amended and Restated By-Laws were
duly adopted by the Board of Directors of the Corporation on , 1995.
[SEAL]
Assistant Secretary
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EXHIBIT B-43
CERTIFICATE OF INCORPORATION
OF
SEI HOLDINGS IX, INC.
I.
The name of the corporation is SEI HOLDINGS IX, INC. (the "Corporation").
II.
The initial registered office of the Corporation in the State of Delaware
shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801. The initial registered agent of the
Corporation at such address shall be The Corporation Trust Company.
III.
The purpose or purposes for which the Corporation is organized is to
engage exclusively in the direct and indirect ownership of the securities, or an
interest in the business, of any one or more exempt wholesale generators,
foreign utility companies, or "qualifying facilities," as defined under the
Public Utility Regulatory Policies Act of 1978, and in activities that are
incidental thereto.
IV.
The Corporation shall be authorized to issue One Thousand (1,000) shares
of One Dollar ($1.00) par value capital stock, all of which shall be designated
"Common Stock." The shares of Common Stock shall have unlimited voting rights
and shall be entitled to receive all of the net assets of the Corporation upon
dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the By-Laws of the Corporation. The initial Board
of Directors of the corporation shall consist of one (1) member, whose name and
corresponding mailing address is:
Thomas G. Boren
c/o Southern Electric International, Inc.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
<PAGE>
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the By-Laws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Richard A.
Hartnig, Esquire, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200,
Atlanta, Georgia 30308-2216.
------------------------------------------
Richard A. Hartnig, Esquire, Incorporator
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<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SEI HOLDINGS IX, INC.
SEI HOLDINGS IX, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation") hereby certifies:
FIRST: That the Board of Directors of the Corporation duly adopted a
resolution proposing and declaring advisable the following amendment to the
heading and Article 1 of the Certificate of Incorporation of the Corporation:
RESOLVED, That the name of the Corporation be changed from SEI
HOLDINGS IX, INC. to SOUTHERN ELECTRIC INTERNATIONAL TRINIDAD, INC.,
and, to effect such change, the heading and Article I of the
Certificate of Incorporation of the Corporation be amended, insofar as
they refer to the name of the Corporation, to read SOUTHERN ELECTRIC
INTERNATIONAL TRINIDAD, INC. in lieu of SEI HOLDINGS IX, INC.
SECOND: That the sole shareholder of the Corporation has given its
written consent to said amendment in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its duly authorized
officers to execute this Certificate as of the 12th day of September, 1995.
SEI HOLDINGS IX, INC.
By:
Its:
Attest:
Its:
EXHIBIT B-44
SEI HOLDINGS IX, INC.
* * * * *
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the
<PAGE>
meeting, at which they shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than
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thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office,
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though less than a quorum, or by a sole remaining director, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced. If there
are no directors in office, then an election of directors may be held in the
manner provided by statute. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
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<PAGE>
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
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<PAGE>
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
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<PAGE>
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
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<PAGE>
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
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<PAGE>
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other
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<PAGE>
lawful action, the board of directors may fix, in advance, a record date, which
shall not be more than sixty (60) nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or
more Management
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Positions with respect to the defense of any such claim, action, suit or
proceeding may be advanced by the corporation prior to the final disposition of
such claim, action, suit or proceeding, as authorized by the board of directors
in the specific case, upon receipt of an undertaking by or on behalf of such
person to repay such amount unless it shall ultimately be determined that such
person is entitled to be indemnified by the corporation under these by-laws or
otherwise; provided, however, that the advancement of such expenses shall not be
deemed to be indemnification unless and until it shall ultimately be determined
that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the
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<PAGE>
provisions of the by-laws shall not otherwise be affected thereby but shall
remain in full force and effect. The masculine pronoun, as used in the by-laws,
means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
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<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing By-Laws were duly adopted by the
sole Director of the Corporation on October 14, 1994.
[SEAL]
Secretary
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EXHIBIT B-49
ARTICLES OF ORGANIZATION
OF
MOBILE ENERGY SERVICES COMPANY, L.L.C.
I.
The name of the limited liability company is Mobile Energy Services
Company, L.L.C. (the "Company").
II.
The Company shall have perpetual duration.
III.
The nature of business to be conducted or promoted by the Company shall
be limited to the following activities:
(a) to acquire, finance, refinance, own, expand, improve and
operate or contract for the operation of, and to assume
certain existing indebtedness and liabilities in connection
with, the energy and recovery complex and related facilities
located at the pulp and tissue mill in Mobile, Alabama owned
by Scott Paper Company, a Pennsylvania corporation ("Scott")
(or any successor thereto), and the paper mill owned by S.D.
Warren Company, a Pennsylvania corporation ("S.D. Warren") (or
any successor thereto) (the "Energy Complex");
(b) to enter into and perform any agreement providing for or
relating to (i) the issuance by the Company of up to
$290,000,000 aggregate principal amount of first mortgage
bonds (the "First Mortgage Bonds"), the issuance by the
Industrial Development Board of the City of Mobile, Alabama
(the "IDB"), for the benefit of the Company of $85,000,000
aggregate principal amount of tax-exempt bonds (the
"Tax-Exempt Bonds"), and the working capital facility to be
provided to the Company by an unaffiliated third party (the
"Working Capital Facility"), and in each case to receive and
dispose of proceeds thereunder or in exchange therefor, and to
provide for any refinancing or refunding of the foregoing (the
First Mortgage Bonds, the Tax-Exempt Bonds and the Working
Capital Facility are sometimes collectively referred to as the
"Offered Securities") and (ii) the issuance by the Company of
other additional indebtedness as may be consistent with clause
(f) of this Article III;
(c) to take actions necessary to offer the First Mortgage
Bonds and the Tax- Exempt Bonds to the purchasers thereof (the
"Bondholders");
(d) to enter into and perform any agreements providing for
or relating to the management and administration of the
activities of the Company;
(e) to enter into and perform any agreements to accomplish
the purposes set forth in paragraphs (a), (b), (c) or (d) of
this Article III; and
<PAGE>
(f) to engage in any lawful act or activity, and to exercise
any powers permitted to limited liability companies organized
under the laws of the State of Alabama, that are incidental to
and necessary, suitable or convenient for the purposes set
forth in paragraphs (a), (b), (c), (d) or (e) of this Article
III.
IV.
The initial registered office of the Company in the State of Alabama
shall be located at 60 Commerce Street, Montgomery, Montgomery County, Alabama
36104. The initial registered agent of the Company at such address shall be The
Corporation Company.
V.
The names, addresses and initial capital contributions of the initial
members of the Company are:
<TABLE>
<CAPTION>
<S> <C> <C>
Members Address Initial Capital Contributions
Mobile Energy Services Holdings, Inc. 900 Ashwood Parkway $100
Suite 450
Atlanta, Georgia 30338
Southern Electric International, Inc. 900 Ashwood Parkway $100
Suite 500
Atlanta, Georgia 30338
</TABLE>
VI.
The Company may admit additional members with the prior written consent
of all the members.
VII.
The business of the Company may be continued in accordance with the
terms of Section 10-12-37 of the Alabama Code following the dissociation of a
member.
VIII.
From and after the date of filing of these Articles of Organization,
the sole manager of the Company shall be Mobile Energy Services Holdings, Inc.,
an Alabama corporation ("Mobile Energy"), which shall be responsible for the
day-to-day operations of the Company. The foregoing shall not be construed as
restraining Mobile Energy from transferring interests in the Company (a) in
2
<PAGE>
an amount not to exceed one percent (1%) of the total interests in the Company
to The Southern Company, a Delaware corporation ("Southern"), prior to the
issuance of the Offered Securities; (b) on commercially reasonable terms to
third parties that are not "Southern Affiliated Entities" (as hereinafter
defined), and permitting such third parties to participate in the management of
the Company, even if the effect thereof would be to cause: (i) Mobile Energy's
ownership interest in the Company to be reduced below a majority of the
ownership interests in the Company; or (ii) one or more of such third parties to
acquire or share managerial control of the Company; or (c) to a Southern
Affiliated Entity whose Articles of Incorporation (or other organizational
documents) contain the same operative provisions as the Articles of
Incorporation of Mobile Energy and which undertakes, for the benefit of the
Bondholders, each of the covenants and restrictions of Mobile Energy set forth
in the indenture (the "Indenture") among the Company, Mobile Energy, as
guarantor, and First Union National Bank of Georgia ("First Union"), as trustee,
entered into in connection with the issuance of the First Mortgage Bonds, and
the Amended and Restated Lease and Agreement (the "Tax-Exempt Lease") among the
Company, Mobile Energy, as guarantor, and the IDB entered into in connection
with the issuance of the Tax-Exempt Bonds pursuant to the Amended and Restated
Trust Indenture between the IDB and First Union (the "Tax-Exempt Indenture") in
each case relating to compliance with and amendment of such Articles of
Incorporation. For purposes of these Articles, the term "Southern Affiliated
Entities" shall mean the Company, Southern, Southern Electric International,
Inc., a Delaware corporation ("SEI"), and Mobile Energy and any other
corporation, partnership, limited liability company or other business entity
with respect to which the Company, Southern, SEI or Mobile Energy, through
ownership of voting securities, by contract or otherwise, has the power to
direct (or cause the direction of) the management and policies of such
corporation, partnership, limited liability company or other business entity.
The mailing address of Mobile Energy is 900 Ashwood Parkway, Suite 450, Atlanta,
Georgia 30338.
IX.
The unanimous approval of all members of the Company is required: (a)
to file a bankruptcy or insolvency petition or otherwise institute insolvency
proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any
successor thereto (the "Bankruptcy Code"), or any similar statute, seeking
protection of the Company as a debtor in such proceedings, or (b) to amend,
repeal or supersede any provision of Articles III, VIII, IX, X, XI and XII
hereof unless, in connection with such amendment, repeal or supersession, the
Company receives from a nationally recognized law firm acceptable to those
rating agencies which at the time of such opinion are rating the First Mortgage
Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern
or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy
court, exercising reasonable judgment after full consideration of all relevant
circumstances, in a properly presented case, would not disregard the separate
corporate existence of the Company or Mobile Energy so as to order substantive
consolidation of the assets and liabilities of the Company or Mobile Energy with
those of SEI or Southern.
X.
Neither the Company's funds nor any other assets thereof shall be
commingled with those of any other person or entity, and the Company's funds
shall be clearly traceable at all times and in all transactions. The Company's
assets shall remain identifiably separate from those of all other entities
3
<PAGE>
such that there shall be no material difficulty in segregating and ascertaining
the assets of the Company as distinct from those of its affiliates or any other
person or entity. Notwithstanding the foregoing, (a) equity or other
contributions from any member of the Company may be received by the Company,
deposited to the account of the Company and treated as funds of the Company and
(b) revenues of Mobile Energy or the Company may be collected by affiliates of
Mobile Energy, and such affiliates may pay liabilities of Mobile Energy or the
Company, as applicable, therewith pursuant to the "Relevant Documents" (as
hereinafter defined), so long as appropriate records are maintained by Mobile
Energy or the Company to identify at all times funds belonging to Mobile Energy
or the Company, respectively. For purposes of these Articles, the "Relevant
Documents" shall mean: (1) the Registration Statement filed on Form S-1 under
the Securities Act of 1933, as amended, and the corresponding Prospectus, each
relating to the issuance of the First Mortgage Bonds, and the Limited Offering
Memorandum, issued in connection with the sale of the Tax-Exempt Bonds; (2) the
Articles of Incorporation of Mobile Energy, SEI and Southern, and these Articles
of Organization; (3) the ByLaws of Mobile Energy, SEI and Southern; (4) the
Indenture, the Tax-Exempt Indenture, and the Tax-Exempt Lease Agreement; (5) the
Working Capital Facility and Mobile Energy's guaranty in respect thereof; (6)
those guaranties from Southern or appropriate letters of credit necessary to
satisfy the Company's reserve account funding requirements under the Indenture,
the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as hereinafter
defined); (7) the Intercreditor Agreement entered into by and among the Company,
Mobile Energy, First Union, as trustee with respect to the First Mortgage Bonds,
First Union, as trustee with respect to the Tax-Exempt Bonds, the IDB, and the
Working Capital Facility provider, and Bankers Trust Company, as Collateral
Agent, (the "Intercreditor Agreement"); (8) the Asset Purchase Agreement dated
as of December 12, 1994, between Scott and Mobile Energy; (9) the Pulp Mill
Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and
Mobile Energy (the "Pulp Mill Environmental Indemnity Agreement"), the Tissue
Mill Environmental Indemnity Agreement, dated as December 12, 1994, between
Scott and Mobile Energy (the "Tissue Mill Environmental Indemnity Agreement"),
the Paper Mill Environmental Indemnity Agreement, dated as December 12, 1994,
between S.D. Warren and Mobile Energy (together with the Pulp Mill Environmental
Indemnity Agreement and the Tissue Mill Environmental Indemnity Agreement, the
"Environmental Indemnity Agreements"), and the Environmental Guaranty dated as
of December 12, 1994, made by Southern in connection with the Company's
obligations under the Environmental Indemnity Agreements; (10) the
Administrative Services Agreements (the "SCS Agreements"), pursuant to which
Southern Company Services, Inc. ("SCS") will provide certain administrative
services to Mobile Energy and the Company, the Operations and Maintenance
Agreement, dated as of December 12, 1994 between Mobile Energy and SEI, and the
Administrative Services Agreement dated as of July 14, 1995, between SEI and
Mobile Energy; (11) the agreement between Mobile Energy and Southern relating to
the allocation of certain tax liabilities; (12) the Mill Owner Maintenance
Reserve Account Agreement among the Company, Southern, Scott and S.D. Warren;
and (13) the Employee Transition Agreement among Scott, Mobile Energy and SEI;
in each case as in effect on the date of filing of these Articles of
Organization or, if entered into after such date, on the date of issuance and
sale of the First Mortgage Bonds or as may be amended, replaced or otherwise
modified from time to time, provided that in connection with any such amendment,
replacement or modification, the Company receives from a nationally recognized
law firm acceptable to those rating agencies which at the time of such opinion
are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion
to the effect that, if Southern or SEI were to become a debtor under the
Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment
after full consideration of all relevant circumstances, in a properly presented
case, would not disregard the separate corporate existence of the Company or
Mobile Energy so as to
4
<PAGE>
order substantive consolidation of the assets and liabilities of the Company or
Mobile Energy with those of SEI or Southern.
XI.
The Company:
(a) shall maintain complete records and books of account which at all times
shall be separate from those of any other person or entity and shall be
materially correct and complete;
(b) shall conduct its own business solely in its own name or through its
authorized agents, and not in the name of any of the other Southern
Affiliated Entities, in a manner which is not likely to mislead
others as to the identity of the legal entity with which such others
are dealing, shall not permit any person or entity to conduct any
business of such person or entity in the Company's name, and without
limiting the generality of the foregoing: (i) shall ensure that all
oral and written communications, including without limitation,
letters, invoices, purchase orders, contracts, statements and
applications, are and will be made solely in the name of the entity
to which they relate or in the name of such entity's authorized
agents, and (ii) shall not refer, and shall ensure that the other
Southern Affiliated Entities do not refer, to the Company as a
division or department of any other entity (including any
affiliate thereof);
(c) shall prepare financial statements separate from any other
person or entity, which shall disclose its separate existence
and the transactions contemplated by the Relevant Documents in
accordance with generally accepted accounting principles, and
shall disclose that the assets of the Company are not
available to any creditor of the other Southern Affiliated
Entities (other than as contemplated by the Relevant
Documents);
(d) except to the extent set forth in the Relevant Documents, shall pay its
liabilities out of its own funds, and, except as set forth in the Relevant
Documents, shall not permit any of the other Southern Affiliated Entities
to pay such liabilities;
(e) shall not hold out employees or officers of the other Southern
Affiliated Entities as employees or officers of the Company, nor permit
employees or officers of the Company to be held out as employees or
officers of any of the other Southern Affiliated Entities; provided that
such restrictions shall not preclude a particular employee or officer of
any of the Southern Affiliated Entities from also holding a position as
an employee or officer of the Company, so long as the Company takes
reasonably appropriate steps to assure that unaffiliated parties dealing
with such employee or officer are able to distinguish the particular
entity which such person is representing at any particular time;
(f) shall not guarantee or become obligated for the debts of any of the other
Southern Affiliated Entities or hold out its credit as being available to
satisfy the obligations of any of the other Southern Affiliated Entities,
other than (i) obligations to reimburse SEI or SCS for expenses paid by
SEI or SCS on behalf of the Company in connection with the operation and
5
<PAGE>
maintenance of the Energy Complex in accordance with the Relevant
Documents and (ii) obligations to indemnify SEI for certain claims and
losses relating to SEI's operation and maintenance of the Energy Complex,
in accordance with the Relevant Documents, and SCS for certain claims and
losses relating to SCS's performance of its obligations under the SCS
Agreement;
(g) shall allocate fairly and equitably any overhead for office space shared
with any of the other Southern Affiliated Entities;
(h) shall use stationery, invoices, checks and other business forms
identifiably separate and distinct from those of any of the other
Southern Affiliated Entities. Such items shall bear a mailing address and
telephone number for the Company which is different from that used by any
of the other Southern Affiliated Entities. The Company further shall
maintain, as its principal address and telephone number for receipt of
notices and other communications under the Relevant Documents, a mailing
address and telephone number separate from those of any of the other
Southern Affiliated Entities;
(i) shall not pledge its funds or assets for the benefit of any of the other
Southern Affiliated Entities, except as set forth in the Relevant
Documents; and
(j) at all times shall hold itself out to the public as an entity legally
separate and distinct from any of the other Southern Affiliated Entities.
XII.
The Company shall at all times maintain and observe all corporate
formalities in the conduct of its affairs and with respect to the acquisition,
ownership, encumbrance or transfer of any material assets or the incurrence of
any material indebtedness. Such formalities shall include, without limitation,
the recording of any proceedings of its members and the approval by its members,
to the extent appropriate under Alabama law, of material actions of the Company
and the execution and maintenance of appropriate documentation with respect to
and in order to evidence the acquisition, ownership, encumbrance or transfer of
any material assets or the incurrence of any material indebtedness.
XIII.
Notwithstanding anything contained herein to the contrary, the Company
shall be dissolved and its functions shall be wound up if Mobile Energy
transfers a sufficient amount of its membership interest in the Company such
that its membership interest following such transfer(s) is less than twenty-five
percent (25%) of the total membership interests in the Company. This provision
shall automatically terminate and shall be of no further effect if any person or
persons who are not Southern Affiliated Entities and who would not be deemed to
be related to the Company, Mobile Energy, Southern or SEI, are admitted as
members in the Company. Nothing in this provision shall prohibit Mobile Energy
from making an assignment of its economic interest in the Company to an
assignee.
6
<PAGE>
AMENDED AND RESTATED
ARTICLES OF ORGANIZATION
OF
MOBILE ENERGY SERVICES HOLDINGS COMPANY, L.L.C.
I.
The name of the corporation is Mobile Energy Services Holdings Company,
L.L.C. (the "Corporation").
II.
The Corporation shall have perpetual duration.
III.
The nature of business to be conducted or promoted by the Corporation shall
be limited to the following activities:
(a) to acquire, finance, refinance, own, expand, improve and operate or
contract for the operation of the [Energy Complex];
(b) to serve as a member of and to own a majority of the outstanding
ownership interest of the [LLC], and to act as the sole manager thereof;
(c) to enter into and perform any agreement providing for or relating to the
issuance of the [Offered Securities] and to receive and dispose of proceeds
in exchange therefore;
(d) to take all actions necessary to offer the [Offered Securities] to the
purchasers thereof;
(e) to enter into and perform any agreement providing for or relating to
the management and administration of the activities of the Corporation;
(f) to take any action to fulfill its obligations under the [Transaction
Documents], and to perform any agreements to accomplish the purposes set
forth in (a), (b), (c) (d) and (e) above; and
(g) to engage in any lawful act or activity, and to exercise any powers
permitted to corporations organized under the laws of the State of Alabama,
that are incidental to and necessary, suitable or convenient for the
accomplishment of the purposes set forth in (a), (b), (c), (d), (e) and (f)
above.
<PAGE>
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the By-Laws of the Corporation.
VI.
There shall at all times be a duly qualified and elected director of
the Corporation who shall be a person who, as of any date during such person's
service as a director, has not been, at any time during the two years preceding
such date, (a) a shareholder, officer or employee of the Corporation, or a
controlling shareholder, director, officer or employee of any of its affiliates,
(b) a person controlling any such shareholder, director, officer or employee or
(c) a member of the immediate family of any such shareholder, director, officer
or employee. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a person or entity whether through ownership of voting securities,
by contract or otherwise.
VII.
The unanimous approval of the Board of Directors of the Corporation is
required: (a) to file a bankruptcy or insolvency petition or otherwise institute
insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss.
301, or any successor thereto, or any similar statute; (b) to consent to the
filing of a bankruptcy or insolvency petition or to the institution of
insolvency proceeding under Section 301 of the Bankruptcy Code 11 U.S.C. ss.
301, or any successor thereto, or any similar statute, on behalf of the LLC; or
(c) to amend, repeal or supersede any provision of items [1) through (6)] of the
Articles of Incorporation of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Alabama, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
-2-
<PAGE>
IX.
Neither the Corporation's funds nor any other assets thereof shall be
commingled with those of any other person or entity, and the Corporation's funds
shall be clearly traceable at all times and in all transactions. The
Corporation's assets shall remain identifiably separate from those of all other
entities such that there shall be no material difficulty to segregating and
ascertaining the assets of the Corporation as distinct from those of its
affiliates or any other person or entity. Notwithstanding the foregoing, (a)
equity or other contributions from any shareholder of the Corporation may be
received by the Corporation, deposited to the account of the Corporation and
treated as funds of the Corporation and (b) revenues of the Corporation or the
LLC may be collected by affiliates of the Corporation and such affiliates may
pay liabilities of the Corporation or the LLC, as applicable, therewith pursuant
to the Operations and Maintenance Agreement, so long as appropriate records are
maintained by the Corporation to identify at all times funds belonging to the
Corporation and the LLC.
X.
The Corporation shall maintain complete corporate records and books of
account which at all times shall be separate from those of any other person or
entity and shall be materially correct and complete.
XI.
The Corporation shall at all times maintain and observe all corporate
formalities in the conduct of its affairs and with respect to the acquisition,
ownership, encumbrance or transfer of any material assets or the incurrence of
any material indebtedness. Such formalities shall include without limitation the
holding of appropriate periodic meetings of its Board of Directors and
shareholders in accordance with Alabama law, the recording of minutes of such
meetings and any other proceedings of its shareholders and Board of Directors,
the adoption by the board of Directors (and, as appropriate, the shareholders)
of resolutions to approve material actions of the Corporation and the execution
and maintenance of appropriate documentation with respect to and in order to
evidence the acquisition, ownership, encumbrance or transfer of any material
assets or the incurrence of any material indebtedness.
XII.
The initial registered office of the Corporation in the State of
Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery Co.,
Alabama 36104. The initial registered agent of the Corporation at such address
shall be The Corporation Company.
-3-
<PAGE>
XIII.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the By-Laws of the Corporation. The initial Board
of Directors of the Corporation shall consist of one (1) member, whose name and
corresponding mailing address is:
Raymond D. Hill
c/o Southern Electric International, Inc.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
XIV.
The name and address of the Incorporator of the Corporation are
Elizabeth B. Chandler, NationsBank Plaza, 600 Peachtree Street, N.E., Suite
5200, Atlanta, Georgia 30308-2216.
------------------------------------------
Elizabeth B. Chandler, Organizer
-4-
EXHIBIT B-50
OPERATING AGREEMENT
OF
MOBILE ENERGY SERVICES COMPANY, L.L.C.
Dated as of July 14, 1995
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.......................................1
OFFICES........................................1
Section 1.1 Principal Office.........................................1
----------------
Section 1.2 Registered Office........................................1
-----------------
ARTICLE II......................................1
DEFINITIONS......................................1
ARTICLE III......................................3
PERCENTAGE INTERESTS..................................3
Section 3.1 Names, Addresses and Percentage Interests of
Members...........................................................3
Section 3.2 Capital Contributions....................................3
---------------------
Section 3.3 Summary of Capital Contributions.........................4
--------------------------------
Section 3.4 Capital Accounts.........................................4
----------------
Section 3.5 Capital Account of Assignee..............................4
---------------------------
ARTICLE IV.......................................4
PROFITS, LOSSES AND DISTRIBUTIONS...........................4
Section 4.1 Profits and Losses.......................................4
------------------
Section 4.2 Special Allocations.....................................4
--------------------
Section 4.3 Other Allocation Rules...................................6
----------------------
Section 4.4 Tax Allocations; Code Section 704(c).....................6
------------------------------------
Section 4.5 Property Distributions...................................7
----------------------
ARTICLE V.......................................7
ACCOUNTING AND RECORDS.................................7
Section 5.1 Accountant...............................................7
----------
Section 5.2 Legal Counsel............................................7
-------------
Section 5.3 Books and Records........................................7
-----------------
Section 5.4 Right of Inspection......................................7
-------------------
Section 5.5 Reports..................................................7
-------
Section 5.6 Tax Returns..............................................8
-----------
Section 5.7 Special Basis Adjustment.................................8
------------------------
Section 5.8 Tax Matters Partner......................................8
-------------------
Section 5.9 Fiscal Year..............................................8
-----------
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<PAGE>
ARTICLE VI......................................8
MANAGEMENT, OFFICERS, ELECTIONS AND APPROVALS...............................8
Section 6.1 Voting of Members........................................8
-----------------
Section 6.2 Management...............................................8
----------
Section 6.3 Officers.................................................9
--------
Section 6.5 Independent Activities..................................11
----------------------
ARTICLE VII....................................12
ADMISSION OF ADDITIONAL MEMBERS, DEATH OF A MEMBER,
AND TRANSFER OF INTERESTS........................................12
Section 7.1 Addition of Additional Members..........................12
------------------------------
Section 7.2 Restrictions on Transfer................................12
------------------------
Section 7.3 Right of First Refusal..................................12
----------------------
Section 7.5 General Transfer Provision..............................13
--------------------------
Section 7.6 Compliance..............................................14
----------
Section 7.7 Waiver of Partition.....................................14
-------------------
ARTICLE VIII...................................14
DISSOLUTION AND WINDING UP..............................14
Section 8.1 Dissolution...........................................14
-----------
Section 8.2 Winding Up............................................14
----------
Section 8.3 Compliance with Timing Requirements of Regulations....15
--------------------------------------------------
Section 8.4 Rights of Members.....................................15
-----------------
Section 8.5 Negative Capital Accounts.............................15
-------------------------
ARTICLE IX.....................................15
MISCELLANEOUS......................................15
Section 9.1 Notices...............................................15
-------
Section 9.2 Waiver of Notice......................................15
----------------
Section 9.3 Indemnification by the Company........................16
------------------------------
Section 9.4 Governing Law.........................................17
-------------
Section 9.5 Construction..........................................17
------------
Section 9.6 Reimbursement of Members..............................17
------------------------
Section 9.7 Binding Effect........................................17
--------------
Section 9.8 Headings..............................................17
--------
Section 9.9 Severability..........................................17
------------
Section 9.10 Additional Documents..................................18
--------------------
Section 9.11 Variation of Pronouns.................................18
---------------------
Section 9.12 Counterpart Execution.................................18
---------------------
Section 9.13 Amendments............................................18
----------
ii
<PAGE>
OPERATING AGREEMENT
OF
MOBILE ENERGY SERVICES COMPANY, L.L.C.
THIS OPERATING AGREEMENT (the "Agreement") of Mobile Energy Services
Company, L.L.C. (the "Company") is entered into and shall be effective as of the
13th day of July, 1995, by and between Mobile Energy Services Holdings, Inc., an
Alabama corporation ("MESH"), and Southern Electric International, Inc., a
Delaware corporation ("SEI"),and all additional and substitute Members, pursuant
to the provisions of the Alabama Limited Liability Company Act, Code of Alabama
of 1975, Section 10-2-1, et. seq. (the "Act"), on the following terms and
conditions:
ARTICLE I
OFFICES
Section 1.1 Principal Office. The principal office of the Company in
the State of Alabama shall be located at 200 Bay Bridge Road, Mobile, Alabama
36652. The Company may have such other offices, either within or without the
State of Alabama as the Members may designate or as the business of the Company
may from time to time require.
Section 1.2 Registered Office. The registered office of the Company,
required by the Act to be maintained in the State of Alabama, may, but need not,
be identical with the principal office in the State of Alabama. The address of
the initial registered office of the Company is 60 Commerce Street, Montgomery,
Montgomery County, Alabama 36104, and the initial registered agent at such
address is The Corporation Company. The registered office and the registered
agent may be changed from time to time by action of the Manager and by filing a
statement of such change with the Alabama Secretary of State.
ARTICLE II
DEFINITIONS
Defined terms used in this Agreement shall, unless the context
otherwise requires, have the meanings specified below. Certain additional
defined terms are set forth elsewhere in this Agreement.
(a) "Assignee" means a person reflected in the records of the Company
as the owner of financial rights in the Company. An Assignee does not have
governance or management rights.
<PAGE>
(b) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, any successor thereto and applicable regulations thereunder. Any
reference herein to a specific section or sections of the Code shall be deemed
to include a reference to any corresponding provision of future law.
(c) "Company Interest" means the interest of a Member or an Assignee in
the Company as represented by such Member's or Assignee's Percentage Interest.
(d) "Company Minimum Gain" shall have the meaning of "Partnership
Minimum Gain", set forth in Regulations sections 1.704-2(b)(2) and 1.704-2(d).
(e) "Manager" shall mean MESH together with any substitute or
replacement Manager selected by the Members from time to time as permitted by
the Articles of Organization.
(f) "Member" means a person reflected in the records of the Company as
the owner of all rights and benefits of a membership interest in the Company
specified in this Agreement, including governance or management rights.
(g) "Member Nonrecourse Debt" shall have the meaning of "Partner
Nonrecourse Debt" set forth in Regulation section 1.704-2(b)(4).
(h) "Member Nonrecourse Debt Minimum Gain" means an amount, with
respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that
would result if such Member Nonrecourse Debt were treated as a Nonrecourse
Liability, determined in accordance with section 1.704-2(i)(3) of the
Regulations.
(i) "Member Nonrecourse Deductions" shall have the meaning of "Partner
Nonrecourse Deductions" set forth in Regulation section 1.704-2(i)(2).
(j) "Nonrecourse Deductions" shall have the meaning set forth in
Regulation section 1.704-2(b)(1).
(k) "Nonrecourse Liability" shall have the meaning set out in
sections 1.704-2(b)(3) and 1.752-1(a)(2) of the Regulations.
(l) "Percentage Interest" means the percentage interest of a Member in
the Company including, without limitation, such Member's right (i) to a
distributive share of the profits or losses and distributions of cash and/or
other Company property and (ii) to a distributive share of the Company's assets.
(m) "Person" means any individual, corporation, association,
partnership, limited liability company, joint venture, trust, estate or other
entity, or organization.
2
<PAGE>
(n) "Regulations" means the permanent, temporary, proposed or proposed
and temporary regulations of Department of the Treasury under the Code as such
regulations may be lawfully changed from time to time.
(o) "Southern Affiliated Entities" means the Company, The Southern
Company, a Delaware corporation ("Southern"), Southern Electric International,
Inc., a Delaware corporation ("SEI"), and MESH and any other corporation,
partnership, limited liability company or other business entity with respect to
which the Company, Southern, SEI, or Mobile Energy, through ownership of voting
securities, by contract or otherwise, has the power to direct (or cause the
direction of) the management and policies of such corporation, partnership,
limited liability company or other business entity.
(p) "Transfer" means to sell, convey, transfer, assign, mortgage,
pledge, hypothecate, or otherwise encumber in any way all or any portion of a
Company Interest.
ARTICLE III
PERCENTAGE INTERESTS
Section 3.1 Names, Addresses and Percentage Interests of Members The
following is a listing of the names, mailing addresses, and Percentage Interest
of each of the Members:
Percentage
Name Address Interest
Mobile Energy 900 Ashwood
Services Holdings, Parkway, Suite 450 99%
Inc. Atlanta, GA 30338
Southern Electric 900 Ashwood
International, Inc. Parkway, Suite 500 1%
Atlanta, GA 30338
Total 100%
Section 3.2 Capital Contributions. Any Member may make capital
contributions to the Company. Such contributions (if other than in cash) shall
be valued at their net fair market value on the date of such contribution. Such
value (the "Agreed Value") shall be agreed upon by the non-contributing Members
owning a majority of the Percentage Interests of the Company, exclusive of the
Percentage Interest owned by the contributing Member.
3
<PAGE>
Section 3.3 Summary of Capital Contributions. For the purposes of this
Agreement, the capital contributions to the Company shall be deemed to include
the initial capital contributions to the Company made by the Members, plus any
amounts subsequently contributed to the capital of the Company by the Members.
No Member shall be entitled to interest on its capital account.
Section 3.4 Capital Accounts. An individual capital account shall be
established and maintained for each Member. The capital account of each Member
shall consist of such Member's original contribution and any additional
contributions of capital, increased by (1) cash and the net fair market value of
property other than cash contributed to capital by such Member (net of
liabilities assumed by the Company or subject to which the Company takes such
property within the meaning of section 752 of the Code), and (2) such Member's
distributive share of income and gains of the Company, including items of income
and gain specifically allocated to such Member or Assignee pursuant to Article
IV and the Code, and decreased by (a) distributions of cash or other property to
such Member (net of liabilities of the Company assumed by the Member or subject
to which the Member takes such property within the meaning of section 752 of the
Code), and (b) such Member's distributive share of losses of the Company,
including items of expense, loss, and deduction specifically allocated to such
Member pursuant to Article IV and the Code. Notwithstanding anything to the
contrary contained herein, the capital account of a Member shall maintained in
all events in accordance with the rules set forth in Regulation section
1.704-1(b)(2)(iv).
Section 3.5 Capital Account of Assignee. In the event of a Transfer of
some or all of a Member's Company Interest, the capital account of the
transferor shall become the capital account of the transferee, to the extent it
relates to the portion of the Company Interest transferred.
ARTICLE IV
PROFITS, LOSSES AND DISTRIBUTIONS
Section 4.1 Profits and Losses. After giving effect to the special
allocations in Sections 4.2 and 4.3, all profits and losses derived from the
Company, and each item of income, gain, loss, deduction and credit entering into
the computation thereof, shall be allocated among the Members in accordance with
their respective Percentage Interests. A separate account shall be maintained
for each Member. Company profits and losses shall be charged or credited to the
separate capital account of each Member as provided.
Section 4.2 Special Allocations. The following special allocations
shall be made in the following order:
4
<PAGE>
(a) Minimum Gain Chargeback. Except as otherwise provided in
section 1.704-2(f) of the Regulations, notwithstanding any other provision of
this Article IV, if there is a net decrease in Company Minimum Gain during any
Company fiscal year, each Member shall be specially allocated items of Company
income and gain for such fiscal year (and, if necessary, subsequent fiscal
years) in an amount equal to such Member's share of the net decrease in Company
Minimum Gain, determined in accordance with Regulation section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in proportion to the
respective amounts required to be allocated to each Member pursuant thereto. The
items to be so allocated shall be determined in accordance with sections
1.704-(f)(6) and 1.704-2(j)(2) of the Regulations. This Section 4.2(a) is
intended to comply with the minimum gain chargeback requirement in such section
of the Regulations and shall be interpreted consistently therewith.
(b) Member Minimum Gain Chargeback. Except as otherwise
provided in section 1.704-2(i)(4) of the Regulations, notwithstanding any other
provision of this Article IV, if there is a net decrease in Member Nonrecourse
Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Company
fiscal year, each Member who has a share of the Member Nonrecourse Debt Minimum
Gain attributable to such Member Nonrecourse Debt (determined in accordance with
Regulation section 1.704-2(i)(5)) as of the beginning of such fiscal year, shall
be specially allocated items of Company income and gain for such fiscal year
(and, if necessary, subsequent fiscal years) in an amount equal to such Member's
share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable
to such Member Nonrecourse Debt, determined in accordance with Regulation
section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Member pursuant thereto. The items to be so allocated shall be determined in
accordance with sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations.
This Section 4.2(b) is intended to comply with the minimum gain chargeback
requirement in such section of the Regulations and shall be interpreted
consistently therewith.
(c) Qualified Income Offset. In the event that any Member
unexpectedly receives any adjustments, allocations, or distributions described
in sections 1.704- 1(b)(2)(ii)(d)(4)-(6) of the Regulations, items of Company
income and gain shall be specially allocated to each such Member in an amount
and manner sufficient to eliminate, to the extent required by the Regulations,
the deficit capital account at the end of any fiscal year of such Member as
quickly as possible, provided that an allocation pursuant to this Section 4.2
(c) shall be made if and only if and to the extent that such Member would have a
deficit capital account at the end of any fiscal year after all other
allocations provided for in this Agreement have been tentatively made as if this
Section 4.2(c) were not in the Agreement.
(d) Code Section 754 Adjustment. To the extent an adjustment to
the adjusted tax basis of any Company asset pursuant to Code section 734(b) or
Code section 743(b) is required, pursuant to Regulation section
1.704-1(b)(2)(iv)(m)(2) or Regulation section 1.704-l(b)(2)(iv)(m)(4), to be
taken into account in determining capital accounts as a result of a distribution
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to a Member in complete liquidation of its interest, the amount of such
adjustment to the capital accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) and such gain or loss shall be specifically allocated to
the Members in accordance with their Percentage Interests in the event
Regulation section 1.704-1(b)(2)(iv)(m)(2) applies or to the Members to whom
such distribution was made in the event that Regulation section 1.704-1(b)
(2)(iv)(m)(4) applies.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any
fiscal year or other period shall be specially allocated among the Members in
proportion to their Percentage Interests.
(f) Member Nonrecourse Deductions. Any Member Nonrecourse
Deductions for any fiscal year or other period shall be specially allocated to
the Member who bears the economic risk of loss with respect to the Member
Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in
accordance with Regulation section 1.704-2(i)(2).
Section 4.3 Other Allocation Rules.
(a) The Members are aware of the income tax consequences of the
allocations made by this Article IV and hereby agree to be bound by the
provisions of this Article IV in reporting their shares of Company income and
loss for income tax purposes.
(b) For purposes of determining the profits, losses, or any
other items allocable to any period, profits, losses, and any such other items
shall be determined on a daily, monthly, or other basis, as determined by the
Members using any permissible method under Code section 706 and the Regulations
thereunder.
(c) Solely for purposes of determining a Member's
proportionate share of the "excess nonrecourse liabilities" of the Company
within the meaning of Regulation section 1.752-3(a)(3), the Members' interests
in Company profits are in proportion to their Percentage Interests.
Section 4.4 Tax Allocations; Code Section 704(c). In accordance with
Code section 704(c) and the Regulations thereunder, income, gain, loss, and
deduction with respect to any property contributed to the capital of the Company
shall, solely for tax purposes, be allocated among the Members so as to take
account of any variation between the adjusted basis of such property to the
Company for federal income tax purposes and its initial fair market value.
In the event that the Agreed Value of any Company asset is adjusted
pursuant to Regulation section 1.704-1(b)(2)(iv)(f), subsequent allocations of
income, gain, loss and deduction with respect to such asset shall take account
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6
of any variation between the adjusted basis to the Company at the time of the
contribution for federal income tax purposes and the Agreed Value of such
property.
Any elections or other decisions relating to such allocations shall be
made by the Manager in any manner that reasonably reflects the purpose and
intention of this Agreement. Allocations pursuant to this Section 4.4 are solely
for purposes of federal, state, and local taxes and shall not affect, or in any
way be taken into account in computing, any Member's capital account or share of
profits, losses, other items, or distributions pursuant to any provisions of
this Agreement.
Section 4.5 Property Distributions. The Company shall not make any
distributions of property (including cash) unless the Members unanimously vote
for the Company to make such distributions.
ARTICLE V
ACCOUNTING AND RECORDS
Section 5.1 Accountant. An accountant may be selected from time to time
by the Manager to perform such tax and accounting services as may from time to
time be required. The accountant may be removed by the Manager without assigning
any cause.
Section 5.2 Legal Counsel. One or more attorney(s) at law may be
selected from time to time by the Manager to review the legal affairs of the
Company and to perform such other services as may be required and to report to
the Manager with respect thereto. Such attorney(s) may be removed by the Manager
without assigning any cause.
Section 5.3 Books and Records. The Company's books and records shall be
kept at the principal place of business of the Company. The Company's books of
account shall show a true and accurate record of all costs and expenses
incurred, all charges made, all credits made and received and all income derived
in connection with the operation of the Company business in accordance with
generally accepted accounting principles consistently applied. The Company shall
use the accrual method of accounting in preparation of its annual reports and
for tax purposes and shall keep its books accordingly. The expenses chargeable
to the Company shall include only those which are reasonable and necessary for
the ordinary and efficient operation of the Company business.
Section 5.4 Right of Inspection. Each Member shall, at its sole
expense, have the right, at any time without notice to the other Members, to
examine, copy and audit the Company's books and records during normal business
hours. Such inspections may be made by any agent or attorney of a Member.
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Section 5.5 Reports. Unless otherwise agreed by the Members, annual
statements showing the Company's profits and losses for the fiscal year and
indicating the share of profit or loss of each Member for income tax purposes
shall be prepared by the accountants of the Company and distributed to all
Members within a reasonable time after the close of each fiscal year.
Section 5.6 Tax Returns. The Company's accountants shall prepare all
income and other tax returns of the Company and shall cause the same to be filed
in a timely manner. The Company shall furnish to each Member a copy of each such
return, together with any schedules or other information which each Member may
require in connection with its own tax affairs.
Section 5.7 Special Basis Adjustment. In connection with any Transfer
of a Company Interest permitted by the terms of this Agreement and a subsequent
admission of a "Transferee" (as hereinafter defined) as a Member of the Company,
the Company, at the written request of the "Selling Owner" (as hereinafter
defined) or Transferee, and at the time and in the manner provided in Regulation
section 1.754-1(b), may in the discretion of the Manager make an election to
adjust the basis of the Company's property in the manner provided in sections
734(b) and 743(b) of the Code, and such Transferee shall pay all costs incurred
by the Company in connection therewith, including, without limitation,
reasonable attorneys' and accountants' fees.
Section 5.8 Tax Matters Partner. MESH shall be the "Tax Matters
Partner" pursuant to the Code, and shall be the party designated to receive all
notices from the Internal Revenue Service which pertain to the tax affairs of
the Company. The Tax Matters Partner must be a Member and shall not take any
action in its capacity as such without the prior approval of the other Members.
Section 5.9 Fiscal Year. The fiscal year of the Company shall be the
calendar year, unless otherwise approved by the Members. As used in this
Agreement, a fiscal year shall include any partial fiscal year at the beginning
and end of the Company term.
ARTICLE VI
MANAGEMENT, OFFICERS, ELECTIONS AND APPROVALS
Section 6.1 Voting of Members. Where the Members have voting rights
pursuant to the Act or this Agreement, the Members shall vote in accordance with
their respective Percentage Interests.
Section 6.2 Management. The Members hereby agree that the Manager shall
manage and direct the Company's business and affairs and determine the Company's
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policies. Without limiting the generality of the foregoing, the Manager shall
have the power and authority, on behalf of the Company:
(a) To acquire property from any Person as the Manager may
determine. The fact that a Member is directly or indirectly affiliated or
connected with any such Person shall not prohibit the Manager from dealing with
that Person;
(b) To borrow money for the Company from banks, other lending
institutions, the Members, or affiliates of the Members on such terms as the
Manager deems appropriate, and in connection therewith, to hypothecate, encumber
and grant security interests in the assets of the Company to secure repayment of
the borrowed sums;
(c) To purchase liability and other insurance to protect the
Company's property and business;
(d) To hold and own any Company real and/or personal properties
in the name of the Company;
(e) To invest any Company funds temporarily (by way of example
but not limitation) in time deposits, short-term governmental obligations,
commercial paper or other investments;
(f) To sell or otherwise dispose of all or substantially all
of the assets of the Company as part of a single transaction or plan so long as
such disposition is not in violation of or a cause of a default under any other
agreement to which the Company may be bound;
(g) To open and maintain bank accounts on behalf of the
Company;
(h) To employ accountants, legal counsel, managing agents or
other experts to perform services for the Company and to compensate them from
Company funds;
(i) To enter into any and all other agreements on behalf of the
Company, with any other Person for any purpose, in such forms as the Manager may
approve;
(j) To elect officers of the Company and grant authority to
such officers to take action on behalf of the Company; and
(k) To do and perform all other acts as may be necessary or
appropriate to the conduct of the Company's business.
Section 6.3 Officers. (a) The officers of the Company shall be chosen
by the Manager and shall include at a minimum a president, secretary and
controller. The Manager may also choose one or more vice-presidents, assistant
secretaries and assistant controllers. Any number of offices may be held by the
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same person. The Manager may appoint such other officers and agents as it shall
deem necessary who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Manager. The salaries of all officers and agents of the Company shall be
fixed by the Manager. The officers of the Company shall hold office until their
successors are chosen and qualified. Any officer appointed by the Manager may be
removed at any time by the Manager. Any vacancy occurring in any office of the
Company may be filled by the Manager.
(b) Each officer of the Company shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
Company.
(c) Each officer of the Company (other than an assistant
secretary or assistant controller) acting alone shall be authorized to execute
any and all contracts, agreements, instruments, documents, bonds and purchase
orders on behalf of the Company without further act or resolution of the Manager
or the Members; provided that any contracts, agreements, instruments, documents,
bonds or purchase orders obligating the Company to make payments in the form of
performance guarantees, liquidated damages or other contingent liabilities or
payments in an amount in excess of $5,000,000 shall be subject to further act or
resolution of either the Manager or the Members; and provided further that from
time to time any officer may designate, in writing, another specific officer or
employee of SEI to execute specific contracts, agreements, instruments,
documents, bonds and purchase orders which such designating officer is otherwise
authorized to execute. Without limiting the generality of the foregoing, the
following officers shall have the following specific powers and duties:
(i) President. The president shall be the chief
executive officer of the Company, shall preside at all meetings of the Members,
shall have general and active management of the business of the Company and
shall see that all orders and resolutions of the Manager are carried into
effect.
(ii) Vice-Presidents. In the absence of the president or
in the event of his inability or refusal to act, the vice-president (or in the
event there be more than one vice-president, the vice-presidents in the order
designated by the Manager, or in the absence of any designation, then in the
order of their election) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the president. The vice-presidents shall perform such other duties and have such
other powers as the Manager may from time to time prescribe.
(iii) Secretary. The secretary shall attend any meetings
of the Members and record all the proceedings of the meetings of the Company
and of the Members in a book to be kept for that purpose. He shall give, or
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cause to be given, notice of any meetings of the Members, and shall perform such
other duties as may be prescribed by the Manager or president, under whose
supervision he shall be.
(iv) Assistant Secretary. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by the
Manager (or if there be no such determination, then in the order of their
election) shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
Manager may from time to time prescribe.
(v) Controller. The controller shall have the custody
of the Company funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Manager. The controller
shall disburse the funds of the Company as may be ordered by the Manager or the
president, taking proper vouchers for such disbursements, and shall render to
the president and the Members, at their regular meetings, or when the Manager so
requires, an account of all its transactions as controller and of the financial
condition of the Company. If required by the Manager, the controller shall give
the Company a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Manager for the faithful
performance of the duties of his office and for the restoration to the Company,
in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in its
possession or under his control belonging to the Company.
(vi) Assistant Controller. The assistant controller, or
if there shall be more than one, the assistant controllers in the order
determined by the Manager (or if there be no such determination, then in the
order of their election) shall, in the absence of the controller or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the controller and shall perform such other duties and have such other powers
as the Manager may from time to time prescribe.
Section 6.4 Elections and Approvals. Except as otherwise set forth in
this Agreement, any election or any matter that is subject to approval by the
Members shall require the simple majority vote of the Members.
Section 6.5 Independent Activities. The Manager and each Member may,
notwithstanding this Agreement, engage in whatever activities it may choose,
whether the same are competitive with the Company or otherwise, without having
or incurring any obligation to offer any interest in such activities to the
Company or any other Member. Neither this Agreement nor any activity undertaken
pursuant hereto shall prevent the Manager or any Member from engaging in such
activities, or require the Manager or any Member to permit the Company or any
other Member to participate in any such activities, and as a material part of
the consideration for the execution of this Agreement by each Member, each
Member hereby waives, relinquishes and renounces any such right or claim of
participation against the Manager and any other Member.
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ARTICLE VII
ADMISSION OF ADDITIONAL MEMBERS, DEATH OF A MEMBER,
AND TRANSFER OF INTERESTS
Section 7.1 Addition of Additional Members. No additional
Members shall be admitted to the Company without the unanimous consent of the
Members.
Section 7.2 Restrictions on Transfer. Except as expressly provided for
in this Agreement, no Member or Assignee may, without the consent of a majority
in interest of the other Members, Transfer all or any portion of its Company
Interest or withdraw or retire from the Company. Any such attempted Transfer,
withdrawal or retirement not permitted hereunder shall be null and void.
Section 7.3 Right of First Refusal. If a majority of the
non-transferring Members approve a proposed Transfer or the prohibitions
contained in Section 7.2 are determined by a court of competent jurisdiction to
be unenforceable, then the Member or Assignee desiring to Transfer all or a
portion of its Company Interest (the "Selling Owner") shall deliver a written
notice ("Offering Notice") to the other Members (the "Offeree Members") of its
intention to do so. The Offering Notice shall specify the nature of the
Transfer, the consideration to be received therefor, the identity of the
proposed purchaser, and the terms upon which it intends to undertake such
Transfer. Each Offeree Member shall have the right to elect to purchase from the
Selling Owner a part of the Company Interest of the Selling Owner in the
proportion that such Offeree Member's Percentage Interest bears to the total
Percentage Interests of all of the Offeree Members who wish to participate in
the purchase of all of the Company Interest referred to in the Offering Notice,
at the same price and on the same terms as specified in the Offering Notice, for
a period of 60 days after the giving of the Offering Notice, by delivering in
writing to the Selling Owner an offer to purchase that portion of the Company
Interest of the Selling Owner covered by the Offering Notice; provided, however,
that the Offeree Members may not, in the aggregate, purchase less than the
entire Company Interest of the Selling Owner. Within 45 days, after notice to
purchase is provided by the Offeree Members to the Selling Owner, the purchase
by the Offeree Members of said Company Interest shall be consummated on the
terms and conditions set forth in the Offering Notice of the Selling Owner. If
within the 60-day period during which the Offeree Members have the right to
elect to purchase the Selling Owner's Company Interest, they do not make such
election, then the Selling Owner, within 30 days after the expiration of said
60-day period, may undertake and complete the Transfer to any person the
identity of which was disclosed in the Offering Notice. The Transfer shall not
be undertaken at a lower price or upon more favorable terms to the purchaser
than specified in the Offering Notice. If the Selling Owner does not consummate
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such Transfer within 90 days after the date of the Offering Notice, or within
the time scheduled for closing pursuant to the Offering Notice, whichever is
later, then all restrictions of this Section 7.3 shall apply as though no
Offering Notice had been given. The purchaser of the Selling Owner's Company
Interest (the "Transferee") shall become a substitute Member upon satisfaction
of the following requirements:
(a) the Transferee signs and accepts the terms and
conditions of this Agreement;
(b) the Transferee satisfies the Members that such
Transfer does not violate any federal or state securities laws, or might cause
the termination of the Company under the Code;
(c) the Transferee pays all related expenses, including
legal fees and recording costs as may be incurred by the Company in connection
with such Transfer; and
(d) the Offeree Members unanimously agree to admit the
Transferee as a substitute Member.
If the Offeree Members do not agree to admit the Transferee as a substitute
Member, the Transferee is merely an Assignee and the Selling Owner, if a Member,
remains a Member of the Company pursuant to sections 10-12-32 and 10-12-33 of
the Act. As an Assignee, the Transferee is reflected in the records of the
Company as the owner of financial rights in the Company, but does not have
governance or management rights.
Section 7.4 Additional Restrictions in MESH Transfers. Notwithstanding
anything contained herein to the contrary, the Company shall be dissolved and
its functions shall be wound up if MESH transfers a sufficient amount of its
Company Interest in the Company such that its Company Interest following such
transfer(s) is less than twenty-five percent (25%) of the total Company
Interests in the Company. This provision shall automatically terminate and shall
be of no further effect if any person or persons who are not Southern Affiliated
Entities and who would not be deemed to be related to the Company, Southern or
SEI, are admitted as Members in the Company. Nothing in this provision shall
prohibit MESH from making an assignment of its economic interest in the Company
to an Assignee.
Section 7.5 General Transfer Provision. All Transfers shall be by
instrument in form and substance satisfactory to counsel for the Company and
shall contain an expression by the Transferee of its intention to accept the
Transfer and to accept and adopt all of the terms and provisions of this
Agreement, as the same may have been amended, and shall provide for the payment
by the Transferee of all reasonable expenses incurred by the Company in
connection with such Transfer, including, without limitation, the necessary
amendments to this Agreement to reflect such Transfer. The Selling Owner shall
execute and acknowledge all such instruments, in form and substance reasonably
satisfactory to the Company's counsel, as may be necessary or desirable to
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effectuate such Transfer. In no event shall the Company dissolve, liquidate or
terminate upon the admission of any Member to the Company or upon any permitted
Transfer of an interest in the Company by any Member or Assignee. Each Member
hereby waives its right to dissolve, liquidate or terminate the Company in such
event. Upon completion of a Transfer in compliance with this Agreement, the
Selling Owner shall be released from all future obligations arising to third
parties after the date of such Transfer, provided the Transferee assumes all
such obligations of the Selling Owner. However, the Selling Owner shall remain
liable for liabilities to third parties occurring on or prior to the date of
such Transfer and for its obligations under this Agreement when arising.
Section 7.6 Compliance. Notwithstanding anything to the contrary in
this Agreement, at law or in equity, no Member shall Transfer or otherwise deal
with any Company Interest in a way that would cause a default under any material
agreement to which the Company is a party or by which it is bound.
Section 7.7 Waiver of Partition. No Member shall either directly or
indirectly take any action to require partition or appraisal of the Company or
of any of its assets or properties or cause the sale of any Company property,
and notwithstanding any provisions of applicable law to the contrary, each
Member (and its legal representatives, successors or assigns) hereby irrevocably
waives any and all right to maintain any action for partition or to compel any
sale with respect to its Company Interest, or with respect to any assets or
properties of the Company, except as expressly provided in this Agreement, and
each Assignee shall have no such right.
ARTICLE VIII
DISSOLUTION AND WINDING UP
Section 8.1 Dissolution. The Company shall dissolve upon the
first to occur of any of the following events:
(a) The election of all of the Members to dissolve the
Company; and
(b) An event of dissociation of a Member, as defined in
section 10-12-36 of the Act, provided, however, that the business of the Company
may be continued if both of the following apply:
(1) there are at least two remaining Members or at
least one remaining Member and a new Member is admitted; and
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(2) the legal existence and business of the Company
is continued by the written consent of all of the remaining Members within 90
days after the occurrence of the event of dissociation.
Section 8.2 Winding Up. Upon a dissolution of the Company, the Members
shall take full account of the Company's assets and liabilities, the Company's
assets shall be liquidated as promptly as is consistent with obtaining the fair
value thereof, and the proceeds therefrom, to the extent sufficient therefor,
shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Company's
liabilities, including the establishment of any necessary reserves; and
(b) The balance, if any, to the Members in accordance
with their capital accounts.
Section 8.3 Compliance with Timing Requirements of Regulations. In the
event the Company is "liquidated" within the meaning of Regulation section
1.704-1(b)(2)(ii)(g), distributions shall be made pursuant to this Article VIII
(if such liquidation constitutes a dissolution of the Company) or Article IV
hereof (if it does not) to the Members who have positive capital accounts in
compliance with Regulation section 1.704-1(b)(2)(ii)(b)(2).
Section 8.4 Rights of Members. Except as otherwise provided in this
Agreement, each Member shall look solely to the assets of the Company for the
return of its capital contributions and shall have no right or power to demand
or receive property other than cash from the Company. No Member shall have
priority over the other Members as to the return of its capital contributions,
distributions or allocations unless otherwise provided in this Agreement.
Section 8.5 Negative Capital Accounts. Any Member upon liquidation of
the Company or at any other time having a deficit or negative balance in its
capital account shall not be required to restore such deficit capital amount or
otherwise to contribute capital to the Company to restore its capital account.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this Agreement shall be in
writing and shall be deemed to have been delivered, given and received for all
purposes (i) if delivered personally to the Member or to an officer of the
Member to whom the same is directed, or (ii) whether or not the same is actually
received, if sent by registered or certified mail, postage
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and charges prepaid, addressed as follows: if to the Company, to the Company at
the address set forth in Section 1.2 hereof; if to any Member, to the address
set forth in Section 3.1 hereof; or to such other address as the Company or any
Member may from time to time specify by notice to the Company and the Members.
Any such notice shall be deemed to be delivered, given and received as of the
date so delivered, if delivered personally, or as of the date on which the same
was deposited in a regularly maintained receptacle for the deposit of United
States mail, addressed and sent as aforesaid.
Section 9.2 Waiver of Notice. Whenever any notice is required to be
given pursuant to the provisions of the Act, the Articles of Organization of the
Company or this Agreement, a waiver thereof, in writing, signed by the persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
Section 9.3 Indemnification by the Company. The Company shall indemnify
persons who may be indemnified by the Company as follows:
(a) Each person who is or was a Member, Manager, officer,
employee or agent of the Company and who was or is a party or was or is
threatened to be made a party to any threatened, pending or completed claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that it is or was a Member, Manager,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, alternate director, officer, employee, agent or
trustee of another company, partnership, joint venture, trust, employee benefit
plan or other enterprise, shall be indemnified by the Company as a matter of
right against any and all expenses (including attorneys' fees) actually and
reasonably incurred by him and against any and all claims, judgments, fines,
penalties, liabilities and amounts paid in settlement actually incurred by him
in defense of such claim, action, suit or proceeding, including appeals, to the
full extent permitted by applicable law. The indemnification provided by this
section shall inure to the benefit of the heirs, executors and administrators of
such person.
(b) Expenses (including attorneys' fees) incurred by a Member,
Manager, officer, employee or agent of the Company with respect to the defense
of any such claim, action, suit or proceeding may be advanced by the Company
prior to the final disposition of such claim, action, suit or proceeding, as
authorized by the Manager in the specific case, upon receipt of an undertaking
by or on behalf of such person to repay such amount unless it shall ultimately
be determined that such person is entitled to be indemnified by the Company
under this Agreement or otherwise; provided, however, that the advancement of
such expenses shall not be deemed to be indemnification unless and until it
shall ultimately be determined that such person is entitled to be indemnified by
the Company.
(c) The Company may purchase and maintain insurance at the
expense of the Company on behalf of any person who is or was a Member, Manager,
officer, employee or agent of the Company, or any person who is or was serving
at the request of the Company as a director (or the equivalent), alternate
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director, officer, employee, agent or trustee of another company, partnership,
joint venture, trust, employee benefit plan or other enterprise, against any
liability or expense (including attorneys' fees) asserted against him and
incurred by him in any such capacity, or arising out of its status as such,
whether or not the Company would have the power to indemnify him against such
liability or expense under this Agreement or otherwise.
(d) Without limiting the generality of the foregoing
provisions, no present or future Member, Manager, officer, employee or agent of
the Company, or its heirs, executors, or administrators, shall be liable for any
act, omission, step, or conduct taken or had in good faith, which is required,
authorized, or approved by any order or orders issued pursuant to the Public
Utility Holding Company Act of 1935, the Federal Power Act, or any federal or
state statute or municipal ordinance regulating the Company or its parent by
reason of their being holding or investment companies, public utility companies,
public utility holding companies, or subsidiaries of public utility holding
companies. In any action, suit, or proceeding based on any act, omission, step,
or conduct, as described in this paragraph, the provisions hereof shall be
brought to the attention of the court. In the event that the foregoing
provisions of this paragraph are found by the court not to constitute a valid
defense on the grounds of not being applicable to the particular class of
plaintiff, each such Member, Manager and officer, and its heirs, executors, and
administrators, shall be reimbursed for, or indemnified against, all expenses
and liabilities incurred by him or imposed on him, in connection with, or
arising out of, any such action, suit, or proceeding based on any act, omission,
step, or conduct taken or had in good faith as in this paragraph described. Such
expenses and liabilities shall include, but shall not be limited to, judgments,
court costs, and attorneys' fees.
(e) The foregoing rights shall not be exclusive of any other
rights to which any such Member, Manager, officer, employee or agent may
otherwise be entitled and shall be available whether or not the Member, Manager,
officer, employee or agent continues to be a Member, Manager, officer, employee
or agent at the time of incurring any such expenses and liabilities.
(f) If any word, clause or provision of the Agreement or any
indemnification made under this Section 9.3 hereof shall for any reason be
determined to be invalid, the provisions of the Agreement shall not otherwise be
affected thereby but shall remain in full force and effect.
Section 9.4 Governing Law. This Agreement shall be construed under the
substantive laws of the State of Alabama as now adopted or as may hereafter be
amended, and such laws shall govern the limited liability company aspects of
this Agreement.
Section 9.5 Construction. Every covenant, term and provision of
this Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Member. In the event that any provision of this
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Agreement shall be found to conflict with any term of the Articles of
Organization of the Company, the Articles of Organization shall control.
Section 9.6 Reimbursement of Members. Members shall receive
reimbursement for expenses reasonably incurred in the performance of their
duties.
Section 9.7 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Members and their legal representatives, heirs,
administrators, executors, successors and permitted assigns.
Section 9.8 Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
Section 9.9 Severability. Every provision of this Agreement is intended
to be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
or legality of the remainder of this Agreement.
Section 9.10 Additional Documents. Each member agrees to perform all
further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out the provisions of
this Agreement.
Section 9.11 Variation of Pronouns. All pronouns and any variations
thereof shall be deemed to refer to masculine, feminine or neuter, singular or
plural, as the identity of the person or persons may require.
Section 9.12 Counterpart Execution. This Agreement may be executed in
one or more counterparts each of which shall be deemed an original and all of
which shall constitute one and the same instrument.
Section 9.13 Amendments. This Agreement may be altered, amended,
restated, or repealed and a new Agreement may be adopted by a unanimous vote of
the Members, after notice and opportunity for discussion of the proposed
alteration, amendment, restatement, or repeal.
18
<PAGE>
CERTIFICATION
THE UNDERSIGNED, being all of the Members of Mobile Energy Services
Company, L.L.C., hereby evidence their adoption and ratification of the
foregoing Agreement of the Company.
EXECUTED by each Member on the ____ day of July, 1995.
"MESH"
Mobile Energy Services Holdings, Inc.
________________________________ By:_______________________________
Witness
Title:__________________________
"SEI"
Southern Electric International, Inc.
________________________________ By:_______________________________
Witness
Title:__________________________
EXHIBIT B-58
CERTIFICATE OF INCORPORATION
OF
SEI NEWCO 1, INC.
I
The name of the corporation is SEI NEWCO 1, INC. (the "Corporation").
II
The initial registered office of the Corporation in the State of
Delaware shall be located at Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801. The initial registered agent of
the Corporation at such address shall be The Corporation Trust Company.
III
The purpose or purposes for which the Corporation is organized is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock". The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the By-laws of the Corporation. The initial Board
of Directors of the Corporation shall consist of one (1) member, whose name and
corresponding mailing address is:
c/o James A. Ward
Southern Electric International, Inc.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
VI
The Corporation shall have perpetual duration.
<PAGE>
VII
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the By-laws of the Corporation.
VIII
To the fullest extent that the General Corporation Law of the State of
Delaware, as it exists on the date hereof or as it may hereafter be amended,
permits the limitation or elimination of the liability of directors, no director
of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of duty of care or other duty as a
director. NO amendment to or repeal of this Article shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
IX
The name and address of the Incorporator of the Corporation is Jianyi
Zhang, Esquire, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200,
Atlanta, GA 30308-2216.
--------------------------------
Jianyi Zhang, Esquire, Incorporator
2
EXHIBIT B-59
BY-LAWS
OF
SEI NEWCO 1, INC.
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such places as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meeting of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make , at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
<PAGE>
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in any agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
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<PAGE>
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorship resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filing any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
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<PAGE>
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means
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<PAGE>
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
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<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
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<PAGE>
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he,
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<PAGE>
or an assistant secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by his signature
or by the signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation and
to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
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<PAGE>
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
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<PAGE>
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive
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of Project Managers and Business Development Managers (but not positions below
the level of such managers) (such positions being hereinafter referred to as
"Management Positions") and who was or is a party or was or is threatened to be
made a party to any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director of the corporation or officer or
employee of the corporation holding one or more Management Positions, or is or
was serving at the request of the corporation as a director, alternate director,
officer, employee, agent or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, shall be indemnified
by the corporation as a matter of right against any and all expenses (including
attorneys' fees) actually and reasonably incurred by him and against any and all
claims, judgments, fines, penalties, liabilities and amounts paid in settlement
actually incurred by him in defense of such claim, action, suit or proceeding,
including appeals, to the full extent permitted by applicable law. The
indemnification provided by this section shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public
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<PAGE>
utility holding companies. In any action, suit, or proceeding based on any act,
omission, step, or conduct, as in this paragraph described, the provisions
hereof shall be brought to the attention of the court. In the event that the
foregoing provisions of this paragraph are found by the court not to constitute
a valid defense on the grounds of not being applicable to the particular class
of plaintiff, each such director and officer, and his heirs, executors, and
administrators, shall be reimbursed for, or indemnified against, all expenses
and liabilities incurred by him or imposed on him, in connection with, or
arising out of, any such action, suit, or proceeding based on any act, omission,
step, or conduct taken or had in good faith as in this paragraph described. Such
expenses and liabilities shall include, but shall not be limited to, judgments,
court costs, and attorneys' fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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<PAGE>
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
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<PAGE>
I hereby certify that the foregoing By-Laws were duly adopted by the
Board of Directors of the Corporation on _________________, 1995.
Sam H. Dabbs, Jr. Assistant Secretary
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EXHIBIT B-60
CERTIFICATE OF INCORPORATION
OF
SEI NEWCO 2, INC.
I
The name of the corporation is SEI NEWCO 2, INC. (the "Corporation").
II
The initial registered office of the Corporation in the State of
Delaware shall be located at Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801. The initial registered agent of
the Corporation at such address shall be The Corporation Trust Company.
III
The purpose or purposes for which the Corporation is organized is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock". The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the By-laws of the Corporation. The initial Board
of Directors of the Corporation shall consist of one (1) member, whose name and
corresponding mailing address is:
c/o James A. Ward
Southern Electric International, Inc.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
VI
The Corporation shall have perpetual duration.
<PAGE>
VII
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the By-laws of the Corporation.
VIII
To the fullest extent that the General Corporation Law of the State of
Delaware, as it exists on the date hereof or as it may hereafter be amended,
permits the limitation or elimination of the liability of directors, no director
of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of duty of care or other duty as a
director. NO amendment to or repeal of this Article shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
IX
The name and address of the Incorporator of the Corporation is Jianyi
Zhang, Esquire, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200,
Atlanta, GA 30308-2216.
--------------------------------
Jianyi Zhang, Esquire, Incorporator
2
<PAGE>
EXHIBIT B-61
BY-LAWS
OF
SEI NEWCO 2, INC.
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such places as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meeting of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make , at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
<PAGE>
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in any agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
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<PAGE>
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorship resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filing any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
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<PAGE>
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means
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<PAGE>
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
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<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
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<PAGE>
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he,
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<PAGE>
or an assistant secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by his signature
or by the signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation and
to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
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<PAGE>
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
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<PAGE>
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive
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<PAGE>
of Project Managers and Business Development Managers (but not positions below
the level of such managers) (such positions being hereinafter referred to as
"Management Positions") and who was or is a party or was or is threatened to be
made a party to any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director of the corporation or officer or
employee of the corporation holding one or more Management Positions, or is or
was serving at the request of the corporation as a director, alternate director,
officer, employee, agent or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, shall be indemnified
by the corporation as a matter of right against any and all expenses (including
attorneys' fees) actually and reasonably incurred by him and against any and all
claims, judgments, fines, penalties, liabilities and amounts paid in settlement
actually incurred by him in defense of such claim, action, suit or proceeding,
including appeals, to the full extent permitted by applicable law. The
indemnification provided by this section shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public
- 11 -
<PAGE>
utility holding companies. In any action, suit, or proceeding based on any act,
omission, step, or conduct, as in this paragraph described, the provisions
hereof shall be brought to the attention of the court. In the event that the
foregoing provisions of this paragraph are found by the court not to constitute
a valid defense on the grounds of not being applicable to the particular class
of plaintiff, each such director and officer, and his heirs, executors, and
administrators, shall be reimbursed for, or indemnified against, all expenses
and liabilities incurred by him or imposed on him, in connection with, or
arising out of, any such action, suit, or proceeding based on any act, omission,
step, or conduct taken or had in good faith as in this paragraph described. Such
expenses and liabilities shall include, but shall not be limited to, judgments,
court costs, and attorneys' fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
- 12 -
<PAGE>
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
- 13 -
<PAGE>
I hereby certify that the foregoing By-Laws were duly adopted by the
Board of Directors of the Corporation on _________________, 1995.
Sam H. Dabbs, Jr. Assistant Secretary
- 14 -
EXHIBIT E-2
Corporate Guideline [GRAPHIC OMITTED]
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SUBJECT NUMBER
051-006
-----------------------------------
ENERGY LOAN PROGRAM ORIGINAL ISSUE DATE REVISION DATE
01-15-79 06-02-95
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PAGE
1 of 3
- ---------------------------------------- -----------------------------------
PURPOSE:
This procedure provides guidelines for participating in the Energy Efficiency
Loan Program, which provides low-interest loans for the installation of energy
efficient facilities and improvements at employees' residences (new or
existing).
PROCEDURES:
I. ELIGIBILITY REQUIREMENTS
The Company will finance all or part of the installation of major
appliances, wiring, and insulating materials where required to make
the home conform to the prevailing energy efficient performance
standards. Company financing under this program is not available
for the replacement of existing electric appliances in an
employee's home.
A. Qualified Borrowers
1. Regular full-time or regular part-time employees with
at least one year of service.
2. Retirees or surviving spouse of retiree.
B. Qualified Homes
Borrowers or their spouses must own or be purchasing the
residence. Financing is limited to primary homes (including
mobile homes located on the land owned or being purchased by
the employee) and does not include an employee's second home
(summer or recreational home). A copy of the employee's
warranty deed will be needed for legal description on home
to file second mortgage.
1. New homes must be certified Good Cents and utilize
electricity for the whole house heating, cooling,
water heating, cooking, and clothes drying
requirements. A new home up to two years old is
eligible for the loan.
2. Existing homes are eligible for the financing of
energy efficient home improvements as
identified in the Energy Loan Information Packet.
II. TERMS OF LOAN
A. A full-time employee may finance up to $20,000.00 at 3
percent annual percentage rate (APR) for a maximum of ten
years. A regular part-time employee may finance up to
$10,000.00 at 3 percent annual percentage rate (APR)
for a maximum of five years. The minimum monthly payment
is $20.00. No down payment is required. The loan,
less unearned interest, may be paid in full at any time
without penalty. A lien cancellation fee will be
assessed on all loans paid off. Borrowers are responsible
for the payment of recording fees, documentary stamp tax,
intangible taxes, and cancellation fees. A second
mortgage will be placed on the home for the term of the
loan. The mortgage cannot be assumed; the unpaid
balance, less unearned interest, is due upon sale of the
home.
<PAGE>
Corporate Guideline [GRAPHIC OMITTED]
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SUBJECT NUMBER
051-006
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ENERGY LOAN PROGRAM ORIGINAL ISSUE DATE REVISION DATE
01-15-79 06-02-95
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PAGE
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B. The employee's Manager will approve the loan application
provided the employee has no known financial problems, is
not on probationary period, and has not received a
performance rating less than satisfactory. The General
Manager of Employee Relations will approve a retiree's
application.
C. Partial payments may be made to employees if the
installation of major components is separated by
approximately 30 days.
D. Employee payments are made through payroll deduction on the
first pay period of the month. Retiree and surviving spouse
payments are made through the Customer Accounting Billing
System. An employee on leave of absence or long-term
disability will make payments through the Customer
Accounting Billing System.
E. Should an active employee with a current loan die while
employed, the spouse will have the option of maintaining the
loan by making payments or by paying off the loan less any
unearned interest.
F. An employee transferring to another company within the
Southern electric system will be required to pay the loan in
full when the home is sold. Payments can be made through the
Customer Accounting Billing System until the home is sold or
the loan is paid.
G. Upon termination of employment, the employee will have the
option of paying the loan in full less the unearned interest
or refinancing at 18 percent per annum. Payments can be made
through the Customer Accounting Billing System. The balance
of the loan will also be due upon sale of the home.
H. An employee request for a Subordination of Lien on the
property or other revisions to the current loan should
be directed to the Secretary and Treasurer for evaluation
and approval.
III. ELIGIBLE ENERGY EFFICIENCY INSTALLATIONS
The Energy Loan Program is intended for the financing of approved
qualified energy efficient home improvements in an existing home or
a new home that is certified Good Cents. A detailed list of energy
efficiency items eligible for financing is contained in the Energy
Loan Information Packet. To request an information packet,
prospective borrowers should contact their District Marketing
Department.
IV. APPLICATION FOR ENERGY LOAN
To submit application for an Energy Loan, prospective borrowers
should request an Energy Loan Information Packet from District
Marketing. This packet contains all necessary forms as well as
other relevant information.
<PAGE>
Corporate Guideline [GRAPHIC OMITTED]
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SUBJECT NUMBER
051-006
-----------------------------------
ENERGY LOAN PROGRAM ORIGINAL ISSUE DATE REVISION DATE
01-15-79 06-02-95
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PAGE
3 of 3
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V. RESPONSIBILITY
A. The Residential/Commercial Marketing Manager is responsible
for the approval of energy efficiency specifications.
B. The Secretary and Treasurer is responsible for final
approval and processing of energy loans and for
determining action to be taken relative to delinquencies on
loans.
/s/ John E. Hodges, Jr.
-------------------------------
Vice President - Customer Operations
/s/ Arlan Scarborough
-------------------------------
Vice President - Finance
<PAGE>
Corporate Guideline [GRAPHIC OMITTED]
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SUBJECT NUMBER
6.1
-----------------------------------
EMPLOYEE ENERGY ISSUE REVISION
10-01-81 01-01-96
----------------- -----------------
EFFICIENT HOME IMPROVEMENTS PAGE
1 of 4
- ------------------------------------------- -----------------------------------
This guideline sets forth eligibility requirements and provides specific
procedures to be followed in financing employee energy efficient home
improvements.
I. DESCRIPTION OF IMPROVEMENTS
The Company finances for employees, through payroll deduction,
approved energy efficient home improvements. Improvements in existing
homes include complete heat pump installations or replacements, and
energy conservation measures such as insulation, attic ventilation,
shading devices, storm windows, insulated doors, water heaters, and
other improvements approved by the General Office Residential
Marketing Department. The improvements must make the home total
electric.
In new construction of a total electric home, eligible employees may
finance heat pumps and their installation, including duct work.
II. ELIGIBILITY
To be eligible, an employee must be a regular, full-time or regular,
part-time employee of Mississippi Power with at least one year of
continuous service and must own or be purchasing his/her home.
Employees of Southern Company Services that are located in
Mississippi are also eligible as nominal employees of Mississippi
Power Company. Retired employees and members of the Board of
Directors are also eligible for this financing. Homes include mobile
homes if located on land owned or being purchased by the employee,
but secondary residences such as recreational homes are excluded. The
structure must be the primary residence of the employee to qualify.
III. TERMS AND MATURITIES
A. No down payment is required.
B. Mississippi Power will pay 25% of the invoice total for all
approved improvements. The following electric
appliances may also be financed along with energy
improvements, but will not have 25% of the invoice paid.
o electric fireplaces (not inserts) o electric stove
o electric grills o electric fryer
o electric lawnmowers o electric range
<PAGE>
Corporate Guideline [GRAPHIC OMITTED]
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SUBJECT NUMBER
6.1
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EMPLOYEE ENERGY ISSUE REVISION
10-01-81 01-01-96
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EFFICIENT HOME IMPROVEMENTS PAGE
2 of 4
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C. The remaining 75% of the invoice total will be financed at an
optional percentage based on the following scale:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
0%: up to 5 1/2 Years 1 1/2%: 7 Years 3%: 8 Years
1/2%: 6 Years 2%: 7 1/2 Years 3 1/2%: 9 and 9 1/2 Years
1%: 6 1/2 Years 2 1/2%: 8 Years 4%: 10 Years
</TABLE>
D. To retire the loan, monthly payments are deducted from the
employee's paycheck on the first pay period of the month
in accordance with the terms of the Installment Promissory
Note.
E. A maximum repayment period of ten years is allowed, provided
no monthly payment is less than $30.00.
F. The maximum principal amount that may be loaned to an employee
must be under $10,000.
G. The entire indebtedness of the Installment Promissory Note is
due and collectible if the employee (1) terminates his/her
employment with the Company; (2) ceases to reside at the house
wherein the energy efficient improvements occurred; or (3)
becomes in default.
IV. APPROVAL PROCESS
A. Tentative Approval
1. The individual first secures tentative approval of
financing from the immediate supervisor or responsible
manager. Tentative approval signifies there are no
known reasons why the employee should not be considered
a candidate for a loan.
2. Eligible individuals then contact the appropriate
district Marketing Department representative to
determine if the improvements planned will improve
their home's efficiency and/or lower the energy use,
using the Company's "Good Cents Home" standards as a
guide.
3. The individual then obtains a bid price for the
improvements. The complete installation, including all
parts, material, and labor, must be done through a
dealer or contractor that has been approved as a Total
Comfort Pledge Dealer. It is suggested that the
employee obtain more than one bid price for the
specified improvements.
<PAGE>
Corporate Guideline [GRAPHIC OMITTED]
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SUBJECT NUMBER
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EMPLOYEE ENERGY ISSUE REVISION
10-01-81 01-01-96
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EFFICIENT HOME IMPROVEMENTS PAGE
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4. If the individual wishes to purchase his/her own
material and either subcontract or furnish the
necessary labor, he/she obtains price quotes from
suppliers and/or subcontractors for the material and
labor to be purchased.
B. Application for Improvement Loan
1. The employee submits an Employee Application for Energy
Efficient Home Improvement Loan (Form 687), with
accompanying bids, plans, and specifications from
contractors, to the immediate supervisor or responsible
manager for approval. Retirees and members of the Board
of Directors submit their applications, with
accompanying documents, to the office of the Vice
President Finance for approval.
2. Upon approval of the loan application, the employee is
notified by the Residential Marketing Department to
proceed with dealer negotiations.
3. An employee may choose to receive the 25% discount paid
by the Company without utilizing the financing portion
of the program.
C. Promissory Note
1. Upon satisfactory completion of all work and receipt of
the applicable invoice(s), the employee or retiree
executes an Installment Promissory Note, Form 614.
Members of the Board of Directors execute a Heat Pump
Installment Contract, Form 648, and Additional Terms
and Conditions, Form 647.
2. The invoice or invoices and the Installment Promissory
Note or Heat Pump Installment Contract are submitted to
the office of the Vice President - Finance for his/her
approval for payment by the Company on all invoices.
D. Final Approval and Processing of Payment
1. The District Marketing Department forwards all
documents to the office of the Vice President Finance
for review of procedure compliance.
2. For employees, the office of the Vice President -
Finance establishes payroll deduction of monthly
installments. For members of the Board of Directors,
the Heat Pump Installment Contract is forwarded to
Revenue Accounting to initiate monthly billing. The
office of the Vice President - Finance also forwards
the Miscellaneous Payment Request to Disbursement
Accounting for processing.
<PAGE>
Corporate Guideline [GRAPHIC OMITTED]
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SUBJECT NUMBER
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3. A check payable to the individual and the
contractor/dealer is issued in the amount agreed upon
and is forwarded to the district Marketing Department
representative.
V. EMPLOYEE TERMINATION PRIOR TO LOAN REPAYMENT
A. The entire indebtedness of the Installment Promissory Note is
due and collectible upon termination of active service.
However, an employee terminating active service prior to
repayment of the Installment Promissory Note may request
renegotiation of the terms of the original agreement, which,
if approved by the office of the Vice President - Finance,
would allow for continued installment payments. Renegotiation
of the Installment Promissory Note and rate of interest to be
computed on the remaining balance are at the sole discretion
of the office of the Vice President - Finance. Requests for
renegotiation are directed to the office of the Vice President
- Finance.
B. If an employee is required to relocate within the Southern
electric system prior to complete repayment of the loan, the
Company will pay off the loan for the employee. The move must
be considered eligible under the system's relocation program.
For a new home, the loan will not be paid off by the Company
at the time of relocation. Installation of a heat pump system
would be considered "standard" equipment to the new home.
C. The Company reserves the right to deny a loan for any reason.
D. The Company reserves the right to modify or terminate the
program at any time.
VI. RESPONSIBILITY
The Director - Marketing/Sales and the Vice President - Finance are
responsible for ensuring compliance with this procedure.
/s/ Michael W. Southern
Vice President - Finance
EMPLOYEE COMPUTER SKILLS PROMOTION POLICY
SOUTHERN COMPANY SERVICES, INC.
EMPLOYEE COMPUTER SKILLS PROMOTION POLICY
The Employee Computer Skills Promotion Policy encourages productivity
and enhanced use of personal computers by providing loans to employees at an
annual interest rate of three percent for purchase of personal computer
hardware, software, and instructional materials for home use.
A. Eligibility Requirements
All regular full-time and part-time employees of Southern
Company Services are eligible to participate in the program.
B. Responsibilities
The Information Resources Department is responsible for
administration of the Policy including establishing and
approving all employee loan applications and security
agreements, initiating payroll deduction, maintaining loan
files, providing on-going communications with employees,
maintaining procedures to execute the Policy, and
resolving questions arising pursuant to the Policy.
The Payroll Department is responsible for processing
payroll and pension deductions and the Accounting
Department is responsible for billing and collecting
delinquent loans.
The borrower is responsible for reading and understanding
all terms and conditions of the Program and for repayment
of the loan as agreed.
The borrower is responsible for securing licensing rights
to all software of his or her personal home computer.
Southern Company Services does not permit the duplication
of SCS-licensed software for use at home under any
condition.
The borrower is responsible for ordering all approved
hardware and software within 10 days of the receipt of the
loan proceeds, and must promptly provide Information
Resources PC Loan Administration with a copy of paid
receipts for valid purchases.
<PAGE>
C. Eligible Hardware, Software, and Instructional Materials
The loan may be used to purchase products from any
manufacturer or retail outlet. Eligible hardware is defined as
hardware consistent with Information Resources standards which
is business-related (i.e., word processing, spread sheet,
database management, etc.). Eligibility of any non-standard
items will be determined by Information Resources PC Loan
Administration.
D. Cost of Loans
Loans under the Program are made at an annual interest rate of
three percent.
E. Loan Application Procedure
Employees should contact Information Resources PC Loan
Administration for a loan application. Upon determining the
products to be purchased, employees should obtain an invoice
from the manufacturer or the retailer specifying the hardware,
software, and materials to be purchased and the corresponding
price of each invoice item. If the vendor is unable to provide
a bid or invoice prior to purchase, the employee will be
required to provide a copy of the paid invoice within 20
working days of the loan date. The invoice and loan
application then are submitted to Information Resources PC
Loan Administration. If the loan is approved, an installment
promissory note is completed and a check is issued to the
employee.
F. Loan Maximum, Minimum, and Repayment Procedures
At any time, the combined outstanding balance on all loans
extended by SCS (whether originating from SCS or assigned to
SCS by another company in the Southern electric system) to an
employee may not exceed $20,000 (e.g., energy loans,
relocation loans, etc.). All loans under this Policy are made
subject to the $20,000 corporate maximum.
Phase 1 Loans
Employees may borrow a maximum of $4,000 for their initial
purchase, unless an exception is approved by a Manager in
the Information Resources Department. The minimum loan
amount is $250. Exceptions to the $4,000 maximum may be
granted to employees seeking to match their home and their
office workstations configurations. For loans in excess of
$4,000, Southern Company Services will retain a first
priority lien on the hardware, software, and instructional
materials purchased through the program.
Additional loans are available to employees 90 days from
the date of the most current loan provided that the
consolidated Phase 1 loan amount does not exceed $4,000
and the borrower has not breached any terms of the
existing loan contract.
The employee may obtain one loan of up to $4,000 if all
hardware and software are purchased in a single
transaction, or the employee may secure several loans
during a 36 month period if hardware and software are
purchased incrementally as knowledge and experience
increase. However, if incremental loans are made, the
balance from the previous loan(s), if any, is added to the
new loan amount, and the maximum number of months
available for repayment will be determined by subtracting
from 36 months the number of months that have elapsed
since the initial date of purchase. If several loans are
obtained, the maximum total amount loaned cannot exceed
the established loan limit.
Loans are repaid through monthly payroll deductions with a
minimum payment of $20 per month. The maximum repayment
period is 36 months.
Phase 2 Loans
Upon repayment of the initial loan in Phase 1 of the
program, the employee may secure additional loan(s) of up
to $1,500 to be repaid within 24 months for the purpose of
enhancing or upgrading the employee's personal computer.
Loans are repaid through monthly payroll deduction with a
minimum payment of $20 per month.
Phase 3 Loans
Upon repayment of Phase 1 loans and any loans that may
have been granted under Phase 2, the employee may secure
loans of up to $4,000 to replace an obsolete PC. The terms
and conditions of Phase 3 loans will be on the same basis
as Phase 1 loans.
G. Employee Termination Prior to Loan Payout
Loans must be repaid in full upon termination of employment.
Southern Company Services reserves the right to deduct any
loan balance due from a terminated employee's final payout
(final regular pay, severance pay, ESP, ESOP, etc.) to the
full extent permitted by law.
If termination of employment is the result of planned staff
reductions and the balance due on the loan is greater than 25
percent of the employee's final total payout, the employee may
initiate a new loan agreement prior to separation for the
balance due allowing continued payment of the loan for a
period of time no greater than the period remaining on the
original loan. If the balance of any such new loan is $3,000
or less, interest shall be charged at a rate no greater than 8
percent per annum. If the balance of such loan is greater than
$3,000, the interest rate on such loan shall be no greater
than the prevailing prime interest rate at the time of
termination plus three percent but in no event shall exceed
the maximum amount permitted by law.
Should an active employee with a current loan choose to
retire, the loan may remain in effect and the employee may
choose to have loan payments deducted from pension payments or
may after retirement make payments directly to the Company.
The spouse of a deceased borrower may maintain an outstanding
loan by continuing to make payments under the terms and
conditions of the loan agreement in effect at the time of
death.
H. Other Considerations
Southern Company Services corporate discounts may be available
to employees who choose to purchase hardware and software from
vendors with whom the company has negotiated agreements.
Information about these discounts and the Company's current
standard products list is available from Information Resources
Contract Administration.
Information Resources personnel are not available to assist
employees in the purchase process beyond providing information
regarding discounts and the standard products list.
Additionally, Information Resources personnel are not
available to provide technical assistance, unless the problem
is work-related.
An employee of another company in the Southern electric system
having a current computer loan with that company may upon
transferring to Southern Company Services, transfer the
computer loan to Southern Company Services.
All loans may be paid in full at any time without an interest
prepayment penalty.
Pursuant to authority authorized by the Board of Directors on February
19, 1996, the above stated Employee Computer Skills Promotion Policy is hereby
approved to be effective May 1, 1996.
Paul J. DeNicola, President
Southern Company Services, Inc.
EMPLOYEE ENERGY LOANS POLICY
SOUTHERN COMPANY SERVICES, INC.
EMPLOYEE ENERGY LOANS POLICY
The Energy Loan Program is intended to encourage participation in the
product promotion programs of the Southern electric system by providing
low-interest loans for the installation of energy efficient facilities and
improvements at participants' residences (new or existing).
A. Responsibilities
The Marketing Department is responsible for providing
technical assistance (e.g., advice on insulation levels
and EERs), identifying the energy efficient equipment that
qualifies for the program, establishing and approving all
employee loan applications and security agreements,
providing loan amortization tables, maintaining loan
files, providing on-going communications with employees,
establishing and maintaining procedures to execute the
policy, initiating payroll deductions, and resolving
questions arising pursuant to the policy.
The Payroll Department is responsible for processing
payroll and pension deductions and the Accounting
Department is responsible for billing and collecting
delinquent loans.
The borrower is responsible for reading and understanding
all terms and conditions of the assistance loan
application and applicable security agreement and for
repayment of the loan as agreed.
B. Eligibility Requirements
Energy loans are available to regular full-time and
part-time employees with at least one year of service,
surviving spouses of deceased full time employees, and
retirees of Southern Company Services.
Borrowers must be installing heat pumps or have an
existing electric heating system.
Borrowers or their spouses must be the owners of the
residence in which the improvements are installed.
Financing is limited to primary and secondary residences.
Secondary residences qualify provided that electrical
service is provided to the property by a company in the
Southern electric system. Primary residence qualifies
without regard to electrical service provider.
C. Amount to be Financed
Itemized bids for equipment and improvements that are to be
installed should be communicated to the Marketing Department
for initial approval. Application forms will be sent to the
borrower to be signed and returned with invoices for completed
installations. Borrowers may have more than one energy loan;
however, the total outstanding balance of all loans from SCS
obtained by an employee (whether originating from SCS or
assigned to SCS by another company in the Southern electric
system) may not exceed $20,000 (e.g., computer loans,
relocation loans, etc.). All loans under this Policy are made
subject to the $20,000 corporate maximum.
Loans may be obtained for the following items:
Heat pump with backup system and installation Insulation
Storm windows and/or double pane windows Storm doors
and/or insulated entry doors
Electric water heating system with heat pump water heater
or heat recovering unit Solar water heating system with
electric backup Humidifier Dehumidifier Electric Air
Cleaner Weather stripping Caulking Vapor barrier Other
energy-efficient items approved by the Marketing
Department
D. Cost of Loans
Loans are available for amounts up to $20,000 at an annual
interest rate of three percent for a maximum of ten years. The
minimum monthly payment is $20.00. There is a no minimum loan
amount.
Employee payments are made through payroll deduction. Retiree
payments are made through pension deductions or payments
submitted to the Accounting Department.
Loans must be repaid in full upon termination of employment or
sale of the residence. Southern Company Services reserves the
right to deduct any loan balance due from a terminated
employee's final payout (final regular pay, severance pay,
ESP, ESOP, etc.) to the full extent permitted by law.
If termination of employment is the result of planned staff
reductions and the balance due on the loan is greater than 25
percent of the employee's final total payout, the employee may
initiate a new loan agreement prior to separation for the
balance due allowing continued payment of the loan for a
period of time no greater than the period remaining on the
original loan. If the balance of any such new loan is $3,000
or less, interest shall be charged at a rate no greater than 8
percent per annum. If the balance of such loan is greater than
$3,000, the interest rate on such loan shall be no greater
than the prevailing prime interest rate at the time of
termination plus three percent but in no event shall exceed
the maximum amount permitted by law.
If the borrower should default on the loan, Southern Company
Services reserves the right to deduct the balance from any
funds due the borrower to the full extent permitted by law.
Should an active employee with a current loan choose to
retire, the loan may remain in effect and the employee may
choose to have loan payments deducted from pension payments or
may, after retirement, make payments directly to the Company.
H. Other Considerations
The spouse of a deceased borrower may maintain an outstanding
loan by continuing to make payments under the terms and
conditions of the loan agreement in effect at the time of
death, provided that if such spouse is not a co-borrower, he
or she executes documentation establishing him or her as a
borrower.
An employee of another company in the Southern electric system
having a current energy loan with the other company may upon
transferring to Southern Company Services, transfer the energy
loan to Southern Company Services.
All loans may be paid in full at any time without an interest
prepayment penalty.
Pursuant to authority authorized by the Board of Directors on February
19, 1996, the above stated Employee Energy Loan Policy is approved to be
effective May 1, 1996.
Paul J. DeNicola, President
Southern Company Services, Inc.
SOUTHERN COMPANY SERVICES, INC.
TRANSFERRED EMPLOYEE LOAN POLICY
In those instances where an employee of another company in the Southern
electric system is to be transferred to Southern Company Services and at the
time of transfer such employee will have an outstanding employee loan extended
by his or her former employer, Southern Company Services may, at its sole
discretion, elect to extend to such transferred employee the same type of
employee loan, even though the particular type of employee loan is not of a type
generally available to employees of Southern Company Services.
I. Applicability
This Policy is applicable only to regular full-time or part-time
employees transferred to Southern Company Services from another
Southern electric system company and only with respect to those
employee loans of any such employee which are outstanding at the time
of his or her transfer to Southern Company Services.
II. Responsibilities
A. The Accounting Department is responsible for administration
of the Policy, including communications with the company extending the
employee loan, obtaining documentation evidencing the transfer of such
loan to Southern Company Services, processing payroll and pension
deductions, processing loan payments, collecting delinquent loans,
maintaining loan files, providing on-going communications with such
transferred employees, maintaining procedures to execute the Policy,
and resolving questions arising pursuant to the Policy.
B. The borrower is responsible for repayment of the loan
as agreed in accordance with the original loan documentation.
III. Terms of Loans
Loans extended to employees pursuant to this Policy shall be subject to
the terms and conditions of the original loan documentation, unless
otherwise required by law.
At any time, the combined outstanding balance on all loans extended by
Southern electric system companies to an employee may not exceed
$20,000 (e.g., energy loans, relocation loans, etc.). All loans covered
by this Policy are subject to the $20,000 corporate maximum.
IV. Employee Termination Prior to Loan Payout
A. Employee payments are made through payroll deduction.
Retiree payments are made through pension deductions or
payments submitted to the Accounting Department.
B. Unless otherwise required by the loan documents, loans must
be repaid in full upon any termination of employment. Southern Company
Services reserves the right to deduct any loan balance due from a
terminated employee's final payout (final regular pay, severance pay,
ESP, ESOP, etc.) to the full extent permitted by law.
C. If termination of employment is the result of general staff
reductions and the balance due on the loan is greater than 25 percent
of all funds payable to the employee within 30 days of the last day of
employment, the employee may initiate a new loan agreement prior to
separation for the balance due allowing continued payment of the loan
for a period of time no greater than the period remaining on the
original loan. If the balance of any such new loan is $3,000 or less,
interest shall be charged on such loan at the rate of 8 percent per
annum. If the balance of such loan is greater than $3,000, the interest
rate on such loan shall be equal to the lesser of the prevailing prime
interest rate at the time of termination plus three percent or the
maximum amount permitted by law.
D. If the borrower should default on a loan, Southern
Company Services reserves the right to deduct the balance from any
funds due the borrower to the full extent permitted by law.
E. Should an active employee with a current loan choose to
retire, the loan may remain in effect and the employee may choose to
have loan payments deducted from pension payments or may after
retirement make payments directly to the Company.
F. The spouse of a deceased borrower may maintain an
outstanding loan by continuing to make payments under the terms and
conditions of the loan agreement in effect at the time of death,
provided that if such spouse is not a co-borrower, he or she executes
documentation establishing him or her as a borrower.
V. Other Considerations
All loans may be paid in full at any time without an interest
prepayment penalty.
Approved - April ____, 1996
Paul J. DeNicola, President
Southern Company Services, Inc.
EXHIBIT H - ORGANIZATION CHART - SEI UMBRELLA COMPANIES
<TABLE>
<CAPTION>
Southern Electric International, Inc. (Project Development)
(100% - The Southern Company)
<S> <C>
SEI Operadora de Argentina, S.A. (FUCO)
(99.99% - Southern Electric International, Inc.; .01% - SEI Holdings, Inc.)
SEI Holdings, Inc. (PP)
(100% - The Southern Company)
Asociados de Electricidad, S.A. (PP)
(99.99% - SEI Holdings, Inc.; .01% - Foreign Corporation)
SEI y Asociados de Argentina, S.A. (PP)
(14% - Asociados de Electricidad, S.A.; 80% - SEI Holdings, Inc.: 5% - Foreign Corporation;
1% - Domestic Company)
Hidroelectrica Alicura, S.A. (FUCO)
(59% - SEI y Asociados de Argentina, S.A.; 41% - Foreign Government)
Southern Electric, Inc. (EWG)
(100% - SEI Holdings, Inc.)
Southern Electric Wholesale Generators, Inc. (EWG)
(100% - SEI Holdings, Inc.)
Southern Energy Marketing, Inc. (EWG)
(100% - Southern Electric Wholesale Generators, Inc.)
SEI Birchwood, Inc. (EWG)
(95% - Southern Electric Wholesale Generators, Inc.; 5% - Southern Energy Marketing, Inc.)
Birchwood Power Partners, LP (EWG)
(50% - SEI Birchwood, Inc.; 50% - Domestic Corporation)
SEI Hawaiian Cogenerators, Inc. (EWG)
(100% - Southern Electric Wholesale Generators, Inc.)
Kalaeloa Partners, LP (QF)
(33 1/3% - SEI Hawaiian Cogenerators, Inc.; 66 2/3% - Domestic Corporations)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SEI UMBRELLA COMPANIES
SEI Holdings, Inc. - CONTINUED
SEI Newco 1, Inc. (PP) (100% - SEI Holdings, Inc.)
Southern Electric International - Europe, Inc. (PP)
(100% - SEI Newco 1, Inc.)
Tesro Holding, BV (PP)
(100% - Southern Electric International - Europe, Inc.)
Southern Energy Investments Australia Pty, Ltd (PP) (100% -
Southern Electric International - Europe, Inc.)
Solaris Holding Company Pty, Ltd (PP)
(90% - Southern Energy Investments Australia Pty, Ltd; 10% - Foreign Corporation)
Southern Investment UK Holdings, Ltd (PP) (100% - Southern
Electric International - Europe, Inc.)
Southern Investment UK PLC (PP) (100% - Southern
Investment UK Holdings, Ltd)
South Western Electricity PLC (FUCO)
(100% - Southern Investment UK PLC)
SEI Newco 2, Inc. (PP) (100% - SEI Newco I, Inc.)
SEI Chile, SA (PP) (100% - SEI Newco 2, Inc.)
Inversiones SEI Chile Limitada (PP) (99% - SEI Chile,
SA; 1% - SEI Holdings, Inc.)
Electrica SEI Chile Limitada (PP) (97.05% - SEI
Chile, SA; 2.95% - SEI Holdings, Inc.)
Energia del Pacifica, SA (PP)
(99.9% - SEI Chile, SA; .1% - Inversiones SEI Chile Limitada)
Empressa Electrica del Norte Grande, SA (FUCO)
(26.63% - Inversiones SEI Chile Limitada; 38.35% - Electrica SEI Chile
Limitada; 10.67% - Foreign Government; 24.35% - Natural Persons)
Sitranor, SA (Transmission Subsidiary)
(60% - Empressa Electrica del Norte Grande, SA;
40% - Foreign Government)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SEI UMBRELLA COMPANIES
SEI Holdings, Inc. - CONTINUED
SEI Newco 1, Inc. - CONTINUED
SEI Newco 2, Inc. - CONTINUED
Southern Electric Bahamas Holdings, Ltd (PP) (100% - SEI
Newco 2, Inc.)
Southern Electric Bahamas Ltd (PP) (100% - Southern
Electric Bahamas Holdings, Ltd.)
Freeport Power Company Ltd (FUCO)
(50% - Southern Electric Bahamas Ltd; 50% - Foreign Company)
SEI Beteilligungs, GmbH (PP) (100% - SEI Newco 2, Inc.)
Southern Electric Brasil Participacoes, Limitada (PP) (99% -
SEI Newco 2, Inc.; 1% - SEI Holdings, Inc.)
Southern Electric International Trinidad, Inc. (EWG)
(100% - SEI Newco 1, Inc.)
The Power Generation Company of Trinidad & Tobago Ltd (EWG)
(39% - Southern Electric International Trinidad, Inc.; 51% - Foreign Government;
10% - Domestic Corporation)
Energia de Neuvo Leon, SA De CV (FUCO)
(33 1/3% - The Southern Company; 33 1/3% Foreign Corporations; 33 1/3% - Foreign
Government)
</TABLE>
