As filed with the Securities and Exchange Commission on July 29, 1996
Registration No. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE SOUTHERN COMPANY
(Exact name of registrant as specified in its charter)
Delaware 58-0690070
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
770-393-0650
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
TOMMY CHISHOLM, Secretary
THE SOUTHERN COMPANY
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
404-506-0540
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
The Commission is requested to mail signed copies of all
orders, notices and communications to:
W. L. WESTBROOK JOHN D. McLANAHAN, ESQ.
Financial Vice President TROUTMAN SANDERS LLP
THE SOUTHERN COMPANY 600 Peachtree Street, N.E.
270 Peachtree Street, N.W. Suite 5200
Atlanta, Georgia 30303 Atlanta, Georgia 30308-2216
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
-----------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ___
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. X
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ___
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. ____
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. ____
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CALCULATION OF REGISTRATION FEE
======================================================================================================
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of Securities to be Aggregate Price Aggregate Registration
to be Registered Registered Per Unit* Offering Price* Fee
- ------------------------ ---------------- ---------------- --------------- ----------------
Common Stock, par value 25,000,000 shares $22 1/4 $556,250,000 $191,811
$5 per share
======================== ================ ================ =============== ================
</TABLE>
*These figures are based upon the average of the high and low prices on
July 23, 1996, as reported by The Wall Street Journal in its report of
NYSE-Composite Transactions, and are used solely for the purpose of calculating
the registration fee pursuant to Rule 457(c).
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The within Prospectus contains the information required by Rule 429 of
the Commission under the Securities Act of 1933 with respect to 9,400,000 shares
of common stock, par value $5 per share, of the registrant remaining unsold
under Registration Statement No. 33-51433, as amended.
===============================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION
DATE OF ISSUANCE: JULY 29, 1996
PROSPECTUS
- ----------
THE SOUTHERN COMPANY
Common Stock
(Par Value $5 Per Share)
-----------------------------------------------
The Southern Company ("SOUTHERN") may sell up to 34,400,000 shares of
its common stock, par value $5 per share, in one or more transactions. This
Prospectus may be supplemented by one or more Prospectus Supplements which will
reflect the terms of any such transaction or transactions. See "Plan of
Distribution."
The outstanding shares of common stock of SOUTHERN are listed on the
New York Stock Exchange, and the shares of Stock offered hereby are expected to
be listed on such Exchange subject to notice of issuance. On July 26, 1996, the
last sale price of SOUTHERN's common stock, as reported by The Wall Street
Journal, was $22 1/2.
-----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------
The date of this Prospectus is ____ __, 1996.
<PAGE>
No broker, dealer, salesman or other person has been authorized to give
any information or to make any representations not contained or incorporated in
this Prospectus or any accompanying Prospectus Supplement in connection with the
offering made hereby or thereby and, if given or made, such information or
representations must not be relied upon as having been so authorized. This
Prospectus and any accompanying Prospectus Supplement do not constitute an offer
of any securities other than the registered securities to which they relate, or
an offer to sell or a solicitation of an offer to buy to any person in any
jurisdiction in which such offer or solicitation would be unlawful. Neither the
delivery of this Prospectus or any accompanying Prospectus Supplement nor any
sale made hereunder or thereunder shall, under any circumstances, create any
implication that the information herein or therein is correct as of any time
subsequent to the respective dates of this Prospectus and any such Prospectus
Supplement.
-----------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS, DEALERS OR AGENTS
MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICE OF THE COMMON STOCK OF SOUTHERN AT A LEVEL ABOVE THAT WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE
NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
-----------------------
SOUTHERN is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "SEC"). Such reports, proxy statements and other information can
be inspected and copied at the offices of the SEC at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C.; 500 West Madison Street, Suite 1400,
Chicago, Ill.; and 13th Floor, Seven World Trade Center, New York, N.Y. Copies
of this material can also be obtained at prescribed rates from the Public
Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549.
The SEC maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants including SOUTHERN that
file electronically at http://www.sec.gov. The common stock of SOUTHERN is
listed on the New York Stock Exchange, where reports, proxy statements and other
information concerning SOUTHERN can be inspected.
-----------------------
SOUTHERN HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO
WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL
REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO
HEREIN UNDER THE CAPTION "INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE" WHICH
HAVE BEEN OR MAY BE INCORPORATED BY REFERENCE IN THIS PROSPECTUS, OTHER THAN
EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO TOMMY
CHISHOLM, SECRETARY, THE SOUTHERN COMPANY, 270 PEACHTREE STREET, N.W., ATLANTA,
GEORGIA 30303, (404) 506-0540.
2
<PAGE>
THE SOUTHERN COMPANY
SOUTHERN was incorporated under the laws of Delaware on November 9,
1945. SOUTHERN is domesticated under the laws of Georgia and is qualified to do
business as a foreign corporation under the laws of Alabama. The principal
executive offices of SOUTHERN are located at 270 Peachtree Street, N.W.,
Atlanta, Georgia 30303, and the telephone number is (770) 393-0650.
SOUTHERN owns all the outstanding common stock of Alabama Power Company
("ALABAMA"), Georgia Power Company ("GEORGIA"), Gulf Power Company ("GULF"),
Mississippi Power Company ("MISSISSIPPI") and Savannah Electric and Power
Company ("SAVANNAH") (ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH being
collectively referred to herein as the "operating affiliates"), each of which is
an operating public utility company, and of Southern Company Services, Inc. (the
system service company). ALABAMA and GEORGIA each owns 50% of the outstanding
common stock of Southern Electric Generating Company ("SEGCO"). The operating
affiliates supply electric service in the states of Alabama, Georgia, Florida,
Mississippi and Georgia, respectively, and SEGCO owns generating units at a
large electric generating station which supplies power to ALABAMA and GEORGIA.
SOUTHERN also owns all the outstanding common stock of Southern Electric
International, Inc. ("SEI"), The Southern Development and Investment Group, Inc.
("SDIG"), Southern Nuclear Operating Company, Inc. ("Southern Nuclear") and
Southern Communications Services, Inc. ("Southern Communications"). SEI designs,
builds, owns and operates power production and delivery facilities and provides
a broad range of technical services to industrial companies and utilities in the
United States and a number of international markets. SDIG explores, develops and
markets energy management services and other business lines relating to
SOUTHERN's core business of generating and distributing energy. Southern Nuclear
provides services to the Southern electric system's nuclear plants. Southern
Communications provides digital wireless communications services to the
operating affiliates and regional non-affiliates.
USE OF PROCEEDS
Except as may be otherwise described in a Prospectus Supplement,
SOUTHERN proposes to use the net proceeds from the sale of the shares of common
stock offered hereby (the "Stock"), together with treasury funds and the
proceeds from the sales of common stock through operation of its dividend
reinvestment and stock purchase plan, its employee savings plan and its employee
stock ownership plan, to make additional investments in the common equities of
its subsidiaries and for other corporate purposes.
DIVIDENDS AND PRICE RANGE
The table below sets forth, for the periods indicated, the high and low
sales prices of SOUTHERN's common stock as reported by The Wall Street Journal
as NYSE-Composite Transactions. The price range and dividend information
included herein reflects the two-for-one stock split effected in the form of a
stock distribution by SOUTHERN in February 1994.
Year High Low By Quarters High Low
- ---- ---- --- ----------- ---- ----
1991 17 3/8 12 7/8 1994
First Quarter 22 18 1/2
1992 19 1/2 15 1/8 Second Quarter 20 1/2 17 3/4
Third Quarter 20 17
1993 23 5/8 18 3/8 Fourth Quarter 21 18 1/4
3
<PAGE>
1994 22 17 1995
First Quarter 21 1/2 19 3/8
1995 25 19 3/8 Second Quarter 22 7/8 20 1/8
Third Quarter 24 21 1/8
Fourth Quarter 25 22 3/4
1996
First Quarter 25 7/8 22 3/8
Second Quarter 24 5/8 21 1/4
Third Quarter 24 5/8 22 1/8
(through July 26,
1996)
The last sale price of the common stock on July 26, 1996, as reported
by The Wall Street Journal, was $22 1/2 per share. The consolidated book value
per share of SOUTHERN's common stock at June 30, 1996 was $13.26.
Dividends have been paid on the common stock without interruption since
1949 when SOUTHERN was organized. The following table sets forth the dividends
paid during the period 1991-1995 and the first two quarters of 1996. Future
dividends will depend on future earnings, the financial condition of SOUTHERN
and the operating affiliates and other factors.
Common Dividends Common Dividends
Period Per Share Period Per Share
- ------ ---------------- ------- ----------------
1991 $1.07 1994 (first quarter) $.295
(second quarter) .295
1992 1.10 (third quarter) .295
(fourth quarter) .295
1993 1.14
1995 (first quarter) .305
1994 1.18 (second quarter) .305
(third quarter) .305
1995 1.22 (fourth quarter) .305
1996 (first quarter) .315
(second quarter) .315
(third quarter) .315*
*A dividend of 31 1/2(cent) per share was declared on July 19, 1996, to
be paid September 6, 1996 to stockholders of record on August 5, 1996.
SOUTHERN has a dividend reinvestment and stock purchase plan pursuant
to which registered owners of shares of SOUTHERN's common stock may purchase
additional shares by having dividends automatically reinvested, or by making
supplemental optional cash purchases (not more than $6,000 per quarter), or
both. For information concerning the dividend reinvestment and stock purchase
plan, write Southern Company Services, Inc., Stockholder Services Department,
P. O. Box 88300, Atlanta, Georgia 30356-8300.
4
<PAGE>
DESCRIPTION OF COMMON STOCK
The authorized capital stock of SOUTHERN currently consists of
1,000,000,000 shares of common stock, par value $5 per share. As of June 30,
1996, there were 673,649,062 shares of common stock issued and outstanding.
All shares of common stock of SOUTHERN participate equally with respect
to dividends and rank equally upon liquidation. Each holder is entitled to one
vote for each share held and to cumulative voting at elections of directors. The
vote of two-thirds of the outstanding common stock is required to authorize or
create preferred stock or to effect certain changes in charter provisions
affecting the common stock. No stockholder is entitled to preemptive rights.
The shares of Stock offered hereby will be fully paid and nonassessable
by SOUTHERN.
The income of SOUTHERN is derived mainly from equity in earnings of its
operating affiliates. At June 30, 1996, $2,022,722,000 of consolidated retained
earnings, of a total of $3,580,408,000 at that date, was restricted against the
payment by the operating affiliates of cash dividends on common stock under
terms of bond indentures or charters. SOUTHERN's investment in subsidiary
companies is maintained on the equity method of accounting; however, under the
applicable accounting requirements of the SEC, cash dividends are limited to
SOUTHERN's retained earnings computed on the cost method of accounting
($411,933,000 at June 30, 1996). The equity in undistributed earnings of
subsidiary companies, except for the $2,022,722,000 restricted under the terms
of bond indentures or charters, will become available for payment of cash
dividends by SOUTHERN as such amounts are paid to SOUTHERN by the subsidiary
companies.
Certain business combination transactions, including mergers, sales of
assets or securities having a fair market value of $100,000,000 or more,
liquidations, dissolutions, reclassifications or recapitalizations, between
SOUTHERN or any of its subsidiaries and any beneficial owner of more than 5% of
the outstanding voting stock of SOUTHERN or any affiliate of such owner must be
approved by the holders of 75% of the outstanding voting stock and a majority of
the outstanding voting stock held by persons other than such beneficial owner,
unless approved by a majority of the "Disinterested Directors" (generally
directors not affiliated with such beneficial owner) or certain minimum price
and procedural requirements are met. These provisions may have the effect of
delaying, deferring or preventing a change in control of SOUTHERN.
The transfer agent and registrar for the common stock is Southern
Company Services, Inc., Atlanta, Georgia.
LEGAL OPINIONS AND EXPERTS
The legality of the Stock offered hereby has been passed upon by
Troutman Sanders LLP, Atlanta, Georgia, counsel for SOUTHERN. Dewey Ballantine,
New York, New York, will act as counsel for the underwriters, dealers, agents or
purchasers and will render an opinion to them upon the legality of the Stock.
The consolidated financial statements and schedules of SOUTHERN and its
subsidiaries included in SOUTHERN's Annual Report on Form 10-K for the year
ended December 31, 1995, incorporated by reference in this Prospectus, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their reports with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as experts in accounting and auditing in giving said
reports.
Statements as to matters of law and legal conclusions in SOUTHERN's
Annual Report on Form 10-K for the year ended December 31, 1995, under "Item
1--Business-Competition", "Item 1--Business-Regulation" and
5
<PAGE>
"Item 1--Business-Rate Matters" and under "Item 2--Properties-Titles to
Property" relating to titles to property, have been reviewed as to the
respective companies by Balch & Bingham, general counsel for ALABAMA and SEGCO,
Troutman Sanders LLP, general counsel for GEORGIA, Beggs & Lane, general counsel
for GULF, Eaton and Cottrell, P.A., general counsel for MISSISSIPPI, and Bouhan,
Williams & Levy LLP, general counsel for SAVANNAH, and such statements insofar
as they relate to the respective companies are made upon the authority of such
firms as experts. G. Edison Holland, Jr., a partner of Beggs & Lane, is Vice
President and Corporate Counsel of GULF. George W. Williams, a Director Emeritus
of SAVANNAH, is of counsel to the firm of Bouhan, Williams & Levy LLP, and he
and other members of such firm own an aggregate of 14,946 shares of common stock
of SOUTHERN.
PLAN OF DISTRIBUTION
SOUTHERN may sell the Stock at any time or from time to time to or
through one or more underwriters or dealers for public offering and sale by them
or to investors directly or through agents. To the extent required, any such
underwriter, dealer or agent involved in the offer and sale of Stock will be
named in an amendment or supplement to this Prospectus.
Underwriters may offer and sell the Stock at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. In connection with sales of the Stock, underwriters may be
deemed to have received compensation from SOUTHERN in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of the
Stock for whom they may act as agent. Underwriters may sell Stock to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions (which may be changed from time to time) from the
underwriters or from the purchasers for whom they may act as agent.
The Stock may also be sold directly to dealers acting as principals. A
dealer may then resell Stock to the public at varying prices to be determined by
such dealer at the time of resale. In addition, the Stock may be sold by
SOUTHERN through agents designated by it from time to time, by means of (i)
ordinary brokers' transactions, (ii) block transactions (which may involve
crosses) in accordance with the rules of the New York Stock Exchange and other
exchanges (the "Exchanges"), in which such agents may attempt to sell shares as
agent but may position and resell all or a portion of the block as principal,
(iii) "fixed price offerings" off the floor of the Exchanges or "exchange
distributions" and "special offerings" in accordance with rules of the
Exchanges, or (iv) a combination of any such methods of sale, in each case at
market prices prevailing at the time of sale in the case of transactions on the
Exchanges and at negotiated prices related to prevailing market prices in the
case of transactions off the floor of the Exchanges. In connection therewith,
distributors' or sellers' commissions may be paid or allowed. The Stock also may
be sold directly by SOUTHERN to any purchaser or purchasers.
Any compensation paid by SOUTHERN to underwriters, dealers or agents in
connection with the offering of Stock and any discounts, concessions or
commissions allowed by underwriters to participating dealers, as well as other
terms of offering, will be set forth in an amendment or supplement to this
Prospectus to the extent required. Underwriters, dealers, agents and any other
parties participating in any distribution of the Stock may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Stock may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933, as amended (the
"Securities Act"). Underwriters, dealers and agents participating in any
distribution of the Stock may be entitled, under agreements entered into with
SOUTHERN, to indemnification against certain civil liabilities, including
liabilities under the Securities Act.
Underwriters, dealers or agents with respect to the offering of the
Stock may include one or more of the following: Robert W. Baird & Co.
Incorporated; Bear, Stearns & Co. Inc.; J.C. Bradford & Co.; Alex. Brown & Sons
Incorporated; Chase Securities Inc.; Chemical Securities, Inc.; Citicorp
Securities, Inc.; Dain Bosworth
6
<PAGE>
Incorporated; Daiwa Securities America Inc.; Dillon, Read & Co. Inc.; Donaldson,
Lufkin & Jenrette Securities Corporation; A.G. Edwards & Sons, Inc.; EVEREN
Securities, Inc.; CS First Boston Corporation; Goldman, Sachs & Co.;
Interstate/Johnson Lane Corporation; Raymond James and Associates, Inc.; Edward
D. Jones & Co.; W.R. Lazard; Legg Mason Wood Walker Incorporated; Lehman
Brothers Inc.; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Morgan Keegan
& Company, Inc.; J.P. Morgan Securities Inc.; Morgan Stanley & Co. Incorporated;
Nomura Securities International, Inc.; PaineWebber Incorporated; Prudential
Securities Incorporated; Pryor, McClendon, Counts & Co., Inc.; Rauscher Pierce
Refsnes, Inc.; The Robinson-Humphrey Company, Inc.; L.F. Rothschild and Co.
Incorporated; Salomon Brothers Inc; Smith Barney Inc.; Swiss Bank Corporation
International Securities Inc.; Thomson McKinnon Securities Inc.; Tucker Anthony
Incorporated; UBS Securities Inc.; Wertheim Schroder & Co. Incorporated; and
Dean Witter Reynolds Inc.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have heretofore been filed by SOUTHERN
with the SEC pursuant to the Exchange Act, are incorporated by reference in this
Prospectus and shall be deemed to be a part hereof:
1. Annual Report on Form 10-K for the year ended December 31, 1995.
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 1996.
3. Current Report on Form 8-K dated February 21, 1996.
All documents subsequently filed by SOUTHERN with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of the offering of the Stock shall be deemed to be incorporated by reference in
this Prospectus and to be made a part hereof from their respective dates of
filing.
7
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses of issuance and distribution, other than
underwriting discounts and commissions, to be borne by SOUTHERN are as follows:
<TABLE>
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<S> <C> <C>
Each
Initial Sale Additional Sale
------------ ---------------
*Filing fee of Securities and Exchange Commission
relating to registration statement $191,811 $ ----
*Listing on New York Stock Exchange 117,800 ----
Cost of definitive stock certificates 5,000 5,000
Charges of transfer agent and registrar 5,000 5,000
Printing and preparation of registration statement,
prospectus, etc. 15,000 15,000
Fee of counsel for SOUTHERN, Troutman Sanders LLP 30,000 20,000
Fee of accountants, Arthur Andersen LLP 40,000 40,000
Services of Southern Company Services, Inc. 25,000 25,000
Miscellaneous, including telephone charges
and traveling expenses 11,000 8,000
------- ------
Total $440,611 $118,000
======= =======
</TABLE>
- -------------------------
*Each Prospectus Supplement will reflect actual filing and listing fees
based upon the amount of the related offering.
Item 15. Indemnification of Directors and Officers.
Section 145 of Title 8 of the Delaware Code gives a corporation power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The same Section also
gives a corporation power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Also, the
II-1
<PAGE>
Section states that, to the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in defense of
any such action, suit or proceeding, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
The By-Laws of SOUTHERN provide in substance that no present or future
director or officer of SOUTHERN shall be liable for any act, omission, step or
conduct taken or had in good faith which is required, authorized or approved by
order issued pursuant to the Public Utility Holding Company Act of 1935, the
Federal Power Act, or any state statute regulating SOUTHERN or its subsidiaries
by reason of their being public utility companies or public utility holding
companies, or any amendment to any thereof. In the event that such provisions
are found by a court not to constitute a valid defense, each such director and
officer 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 such By-Laws described.
The By-Laws of SOUTHERN further provide as follows:
"Each person who is or was a director or officer of the Corporation 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 or officer of the Corporation, or
is or was serving at the request of the Corporation as a 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.
Expenses (including attorneys' fees) incurred by a director or officer
of the Corporation 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 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
Corporation."
SOUTHERN has an insurance policy covering its liabilities and expenses
which might arise in connection with its lawful indemnification of its directors
and officers for certain of their liabilities and expenses and also covering its
officers and directors against certain other liabilities and expenses.
II-2
<PAGE>
Item 16. Exhibits.
Exhibit
Number
*1 Underwriting Agreement.
4(a) Composite Certificate of Incorporation of SOUTHERN reflecting all
amendments to date. (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.)
4(b) By-Laws of SOUTHERN as amended effective October 21, 1991 and
presently in effect. (Designated in Form U-1, File No. 70-8181,
as Exhibit A-2.)
5 Opinion of Troutman Sanders LLP, counsel for SOUTHERN.
23(a)Consent of Troutman Sanders LLP, counsel for SOUTHERN, is
contained in Exhibit 5.
23(b)Consent of Balch & Bingham, general counsel for ALABAMA and
SEGCO.
23(c) Consent of Troutman Sanders LLP, general counsel for GEORGIA.
23(d) Consent of Beggs & Lane, general counsel for GULF.
23(e)Consent of Eaton and Cottrell, P.A., general counsel for
MISSISSIPPI.
23(f)Consent of Bouhan, Williams & Levy LLP, general counsel for
SAVANNAH.
23(g) Consent of Arthur Andersen LLP.
24 Powers of Attorney and resolution.
-------------------
*To be subsequently filed or incorporated by reference.
Exhibits listed above which have heretofore been filed with the
Securities and Exchange Commission, 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.
Item 17. Undertakings.
(a) Undertaking related to Rule 415 offering:
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3
of the Securities Act of 1933;
II-3
<PAGE>
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, S-8 or F-3 and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Undertaking related to filings incorporating subsequent
Securities Exchange Act of 1934 documents by reference:
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Undertaking related to acceleration of effectiveness:
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on the 29th day of July,
1996.
THE SOUTHERN COMPANY
By: A. W. Dahlberg, Chairman of the Board, President
and Chief Executive Officer
By: /s/Wayne Boston
(Wayne Boston, Attorney-in-Fact)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
A. W. Dahlberg Director and Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
W. L. Westbrook Financial Vice President
(Principal Financial
and Accounting Officer)
John C. Adams )
A. D. Correll )
Paul J. DeNicola )
Jack Edwards )
H. Allen Franklin )
L. G. Hardman III ) Directors
Elmer B. Harris )
William J. Rushton, III )
Gloria M. Shatto )
Gerald J. St. Pe' )
Herbert Stockham )
By: /s/Wayne Boston July 29, 1996
(Wayne Boston, Attorney-in-Fact)
II-5
Troutman Sanders LLP
600 Peachtree Street, NE
Atlanta, GA 30308-2216
(404) 885-3000
July 29, 1996
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the above-captioned registration statement and related
prospectus proposed to be filed by The Southern Company ("Southern") with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "1933 Act"), for the registration of 25,000,000
additional shares of its common stock, par value $5 per share (the "Stock"). We
have also examined certified copies of Southern's Certificate of Incorporation,
as amended, and of its by-laws and are familiar with all proceedings relating to
the issuance and sale of the Stock. We are of the opinion that:
(a) Southern is a corporation duly organized and existing
under the laws of the State of Delaware, is domesticated under the laws
of the State of Georgia and is qualified to do business as a foreign
corporation under the laws of the State of Alabama.
(b) Upon compliance with the relevant provisions of the 1933
Act, upon issuance by the Commission of an appropriate order or orders
under the Public Utility Holding Company Act of 1935, as amended, and
upon compliance with the securities or "blue sky" laws of any
jurisdiction applicable thereto, Southern may legally issue and sell
the Stock without obtaining the consent or approval of any other
governmental authority.
(c) When the necessary consents or approvals as referred to in
paragraph (b) hereinabove have been obtained, and when certificates for
the Stock have been executed by Southern, countersigned and registered
by the transfer agent and registrar and delivered for a consideration
in cash equal to or greater than the par value of the Stock pursuant to
resolutions duly adopted by the board of directors of Southern, the
Stock will be valid and legally issued, fully paid and non-assessable
shares of Southern, and the
<PAGE>
The Southern Company
July 29, 1996
Page 2
holders thereof will be entitled to the rights and privileges
appertaining thereto as set forth in Southern's Certificate of
Incorporation, as amended.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement and to the statements made in regard to our firm as
counsel to Southern under the caption "Legal Opinions and Experts" in the
related prospectus.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
<PAGE>
Exhibit 23(b)
Balch & Bingham
1901 Sixth Avenue North
Birmingham, AL 35203
(205) 251-8100
July 29, 1996
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-3
Ladies and Gentlemen:
We are familiar with the above-captioned registration statement and the
related prospectus proposed to be filed by The Southern Company (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, for the registration of 25,000,000 additional shares of common stock,
par value $5 per share, of the Company and have represented Alabama Power
Company ("Alabama Power") and Southern Electric Generating Company ("SEGCO") in
connection therewith. In response to your request for our opinion, we advise you
that we have reviewed the statements relating to Alabama Power and SEGCO under
the captions in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, incorporated in such prospectus by reference pursuant to Item
12 of Form S-3, as are indicated under the caption "Legal Opinions and Experts"
in such prospectus as to matters of law and legal conclusions, and in our
opinion such statements are correct in all material respects.
We hereby consent to the filing of this opinion as an exhibit to the
above registration statement and to the statements made in regard to our firm as
general counsel for Alabama Power and SEGCO under the caption "Legal Opinions
and Experts" in such prospectus.
Very truly yours,
/s/Balch & Bingham
Balch & Bingham
Exhibit 23(c)
Troutman Sanders LLP
600 Peachtree Street, NE
Atlanta, GA 30308-2216
(404) 885-3000
July 29, 1996
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-3
Ladies and Gentlemen:
We are familiar with the above-captioned registration statement and the
related prospectus proposed to be filed by The Southern Company (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, for the registration of 25,000,000 additional shares of common stock,
par value $5 per share, of the Company and have represented Georgia Power
Company ("Georgia Power") in connection therewith. In response to your request
for our opinion, we advise you that we have reviewed the statements relating to
Georgia Power under the captions in the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, incorporated in such prospectus by reference
pursuant to Item 12 of Form S-3, as are indicated under the caption "Legal
Opinions and Experts" in such prospectus as to matters of law and legal
conclusions, and in our opinion such statements are correct in all material
respects.
We hereby consent to the filing of this opinion as an exhibit to the
above registration statement and to the statements made in regard to our firm as
general counsel for Georgia Power under the caption "Legal Opinions and Experts"
in such prospectus.
Very truly yours,
/s/Troutman Sanders LLP
Troutman Sanders LLP
Exhibit 23(d)
Beggs & Lane
3 West Garden Street
Pensacola, FL 32510
(904) 432-2451
July 29, 1996
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-3
Ladies and Gentlemen:
We are familiar with the above-captioned registration statement and the
related prospectus proposed to be filed by The Southern Company (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, for the registration of 25,000,000 additional shares of common stock,
par value $5 per share, of the Company and have represented Gulf Power Company
("Gulf Power") in connection therewith. In response to your request for our
opinion, we advise you that we have reviewed the statements relating to Gulf
Power under the captions in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, incorporated in such prospectus by reference
pursuant to Item 12 of Form S-3, as are indicated under the caption "Legal
Opinions and Experts" in such prospectus as to matters of law and legal
conclusions, and in our opinion such statements are correct in all material
respects.
We hereby consent to the filing of this opinion as an exhibit to the
above registration statement and to the statements made in regard to our firm as
general counsel for Gulf Power under the caption "Legal Opinions and Experts" in
such prospectus.
Very truly yours,
/s/Beggs & Lane
Beggs & Lane
Exhibit 23(e)
Eaton and Cottrell, P.A.
1310 Twenty Fifth Avenue
Gulfport, MS 39501-7748
(606) 864-9900
July 29, 1996
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-3
Ladies and Gentlemen:
We are familiar with the above-captioned registration statement and the
related prospectus proposed to be filed by The Southern Company (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, for the registration of 25,000,000 additional shares of common stock,
par value $5 per share, of the Company and have represented Mississippi Power
Company ("Mississippi Power") in connection therewith. In response to your
request for our opinion, we advise you that we have reviewed the statements
relating to Mississippi Power under the captions in the Company's Annual Report
on Form 10-K for the year ended December 31, 1995, incorporated in such
prospectus by reference pursuant to Item 12 of Form S-3, as are indicated under
the caption "Legal Opinions and Experts" in such prospectus as to matters of law
and legal conclusions, and in our opinion such statements are correct in all
material respects.
We hereby consent to the filing of this opinion as an exhibit to the
above registration statement and to the statements made in regard to our firm as
general counsel for Mississippi Power under the caption "Legal Opinions and
Experts" in such prospectus.
Very truly yours,
/s/Eaton and Cottrell, P.A.
Eaton and Cottrell, P.A.
Exhibit 23(f)
Bouhan, Williams & Levy LLP
447 Bull Street
Savannah, GA 31498-1001
(912) 236-2491
July 29, 1996
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-3
Ladies and Gentlemen:
We are familiar with the above-captioned registration statement and the
related prospectus proposed to be filed by The Southern Company (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, for the registration of 25,000,000 additional shares of common stock,
par value $5 per share, of the Company and have represented Savannah Electric
and Power Company ("Savannah Electric") in connection therewith. In response to
your request for our opinion, we advise you that we have reviewed the statements
relating to Savannah Electric under the captions in the Company's Annual Report
on Form 10-K for the year ended December 31, 1995, incorporated in such
prospectus by reference pursuant to Item 12 of Form S-3, as are indicated under
the caption "Legal Opinions and Experts" in such prospectus as to matters of law
and legal conclusions, and in our opinion such statements are correct in all
material respects.
We hereby consent to the filing of this opinion as an exhibit to the
above registration statement and to the statements made in regard to our firm as
general counsel for Savannah Electric under the caption "Legal Opinions and
Experts" in such prospectus.
Very truly yours,
/s/Bouhan, Williams & Levy LLP
Bouhan, Williams & Levy LLP
EXHIBIT 23(g)
Arthur Andersen LLP
133 Peachtree Street, NE
Atlanta, GA 30303-1846
(404) 658-1776
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3, related to registration of
25,000,000 shares of common stock, of our reports dated February 21, 1996 on the
financial statements of The Southern Company and the related financial statement
schedule included in The Southern Company's Form 10-K for the year ended
December 31, 1995 and to all references to our Firm included in this
registration statement.
/s/ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
July 26, 1996
Exhibit 24
April 15, 1996
A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm, and Wayne Boston
Dear Sirs:
The Southern Company proposes to file registration statements under the
Securities Act of 1933, as amended, with the Securities and Exchange Commission
with respect to the issuance and sale of additional shares of common stock of
this Company, pursuant to and in accordance with (1) a Rule 415 shelf
registration program and (2) the Employee Savings Plan, in amounts of up to 40
million and 6,500,000 additional shares, respectively.
The Southern Company and the undersigned directors and officers of said
Company, individually as a director and/or as an officer of the Company, hereby
make, constitute and appoint each of you our true and lawful Attorney for each
of us and in each of our names, places and steads to sign and cause to be filed
with the Securities and Exchange Commission in connection with each of the
foregoing such registration statements and appropriate amendment or amendments
(including post-effective amendments) thereto, each to be accompanied by a
prospectus and any appropriately amended or supplemented prospectus and any
necessary exhibits.
Yours very truly,
THE SOUTHERN COMPANY
By /s/A. W. Dahlberg
Chairman, President and
Chief Executive Officer
<PAGE>
- 2 -
----------------------
/s/John C. Adams William A. Parker, Jr.
/s/A. D. Correll /s/William J. Rushton, III
/s/A. W. Dahlberg /s/Gloria M. Shatto
/s/Paul J. DeNicola /s/Gerald J. St. Pe'
/s/Jack Edwards /s/Herbert Stockham
/s/H. Allen Franklin /s/W. L. Westbrook
--------------------
Bruce S. Gordon /s/Tommy Chisholm
/s/L. G. Hardman III /s/W. Dean Hudson
/s/Elmer B. Harris
<PAGE>
- 3 -
Extract from minutes of meeting of the board of directors of The Southern
Company.
- - - - - - - - - - - -
RESOLVED FURTHER: That for the purpose of signing the
registration statement or statements under the Securities Act of 1933,
as amended, to be filed with the Securities and Exchange Commission
with respect to the issuance and sale by this Company of additional
shares of its common stock and of remedying any deficiencies with
respect thereto by appropriate amendment or amendments (including
post-effective amendments), this Company, the members of its Board of
Directors, and it officers are authorized to give their several powers
of attorney to A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm
and Wayne Boston.
- - - - - - - - - - - -
The undersigned officer of The Southern Company does hereby
certify that the foregoing is a true and correct copy of a resolution duly and
regularly adopted at a meeting of the board of directors of The Southern
Company, duly held on July 9, 1995, at which a quorum was in attendance and
voting throughout, and that said resolution has not since been rescinded but is
still in full force and effect.
Dated July 29, 1996 THE SOUTHERN COMPANY
By /s/Tommy Chisholm
Tommy Chisholm
Secretary
