As filed with the Securities and Exchange Commission on July 3, 1996
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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. 30303
Atlanta, Georgia (Zip Code)
(Address of principal executive offices)
THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
(formerly EMPLOYEE SAVINGS PLAN FOR
THE SOUTHERN COMPANY SYSTEM)
(Full title of the plan)
TOMMY CHISHOLM, Secretary
THE SOUTHERN COMPANY
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
(Name and address of agent for service)
(404) 506-0540
(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
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
<TABLE>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of Securities to be Aggregate Price Aggregate Registration
to be Registered Registered (1) Per Unit (2) Offering Price (2) Fee
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, par 6,500,000 shares $23 1/2 $152,750,000 $52,673
value $5 per share
===================================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein.
(2) Pursuant to Rule 457(h)(1), these figures are based upon the
average of the high ($23 5/8) and low ($23 3/8) prices paid for a share of the
Company's Common Stock on June 26, 1996, as reported in the New York Stock
Exchange consolidated reporting system, and are used solely for the purpose of
calculating the registration fee.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
registration statement; and all documents subsequently filed by The
Southern Company ("SOUTHERN" or the "registrant") or The Southern
Company Employee Savings Plan (the "Plan") pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference
in this registration statement and to be part thereof from the date of
filing of such documents.
(a) (1) The registrant's Annual Report on Form 10-K for the year
ended December 31, 1995.
(2) The Plan's Annual Report on Form 11-K for the year ended
December 31, 1995.
(b) (1) The registrant's Current Report on Form 8-K dated
February 21, 1996.
(2) The registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996.
(c) The description of the registrant's common stock contained in
Registration No. 33-51433 filed under the Securities Act of 1933.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. 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
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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
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 Bylaws 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 Bylaws described.
The Bylaws of SOUTHERN also provide in pertinent part 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.
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), 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 this Section or otherwise.
The foregoing rights shall not be exclusive of any other rights to
which any such director or officer may otherwise be entitled and shall
be available whether or not the director or officer continues to be a
director or officer at the time of incurring any such expenses and
liabilities."
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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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
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) - Bylaws 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.)
4(c) - Amended and Restated Plan Agreement for The Southern Company
Employee Savings Plan. (Designated in Form 10-K for the year
ended December 31, 1995, File No. 1-3526, as Exhibit 10(a)63.)
4(d) - Trust Agreement between Southern Company Services, Inc. and
Merrill Lynch Trust Company of Florida, as Trustee under the
Plan. (Designated in Form 11-K for the year ended December 31,
1995, File No. 1-3526, as Exhibit C.)
5(a) - Opinion of Troutman Sanders LLP, counsel to SOUTHERN.
5(b) - Internal Revenue Service determination letters dated March 5,
1996 and June 10, 1996. (Designated in Form 11-K for the year
ended December 31, 1995, File No. 1-3526, as Exhibit B.)
23(a)- The consent of Troutman Sanders LLP is contained in Exhibit
5(a).
23(b)- Consent of Arthur Andersen LLP.
24 - Powers of Attorney and resolution.
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 9. Undertakings.
(a) Rule 415 offerings. 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;
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<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
and of the estimated maximum offering range may be reflected
in the from 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 percent 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 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) Filings incorporating subsequent Exchange Act 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 (and each filing
of the Plan's annual report pursuant to 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) Filing of registration statement on Form S-8. 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.
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<PAGE>
SIGNATURES
The Registrant. 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-8 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 July 3, 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 date indicated.
SIGNATURE TITLE DATE
A. W. Dahlberg Director, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
W. L. Westbrook Financial Vice President, Chief Financial Officer and
Treasurer (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 3, 1996
Wayne Boston
Attorney-in-Fact
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The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
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 July 3, 1996.
THE SOUTHERN COMPANY EMPLOYEE
SAVINGS PLAN
By: /s/C. Alan Martin
Chairman
Savings Plan Committee
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TROUTMAN SANDERS LLP
600 PEACHTREE STREET, NE, SUITE 5200
ATLANTA, GA 30308-2216
July 3, 1996
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the above-captioned registration statement proposed to
be filed by The Southern Company ("Southern") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the registration of
additional shares of its common stock, par value $5 per share (the "Stock"),
pursuant to The Southern Company Employee Savings Plan (the "Plan"). 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
Securities Act of 1933, 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 in accordance with
the Plan, the Stock will be valid and legally issued, fully paid and
non-assessable shares of Southern, and the 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.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
EXHIBIT 23(b)
Arthur Anderson LLP
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8, related to The Southern
Company Employee Savings Plan, 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, our report dated May 2, 1996, included in The Southern
Company Employee Savings Plan's Form 11-K for the year ended December 31, 1995
and to all references to our Firm included in this registration statement.
/s/Arthur Anderson LLP
Atlanta, Georgia
July 1, 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>
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Extract from minutes of meeting of the board of directors of The Southern
Company.
- - - - - - - - - - - -
RESOLVED: 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 the Company of additional shares of its common stock under the
Employee Savings Plan and of remedying any deficiencies with respect
thereto by appropriate amendment or amendments (including post-effective
amendments), the Company, the members of its board of directors, and its
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 April 15, 1996, 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 3, 1996 THE SOUTHERN COMPANY
By /s/Tommy Chisholm
Secretary
