SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
June 5, 1997
THE SOUTHERN COMPANY
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(Exact name of registrant as specified in its
charter)
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Delaware 1-3526 58-0690070
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(State or other jurisdiction (Commission File (IRS Employer Identification
of incorporation) Number) No.)
270 Peachtree Street, N.W., Atlanta, Georgia 30303
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(770) 393-0650
N/A
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(Former name or former address, if changed since last
report.)
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Item 5. Other Events.
On June 5, 1997, The Southern Company (the "Company"), Southern Company
Capital Funding, Inc. ("Funding") and Southern Company Capital Trust III (the
"Trust") entered into an Underwriting Agreement covering the issue and sale by
the Trust of 8,000,000 7.75% Trust Preferred Securities (liquidation amount $25
per Preferred Security). Said Preferred Securities were registered under the
Securities Act of 1933, as amended, pursuant to the registration statement
(Registration Statement Nos. 333-28187, 333-28187-01 and 333-280187-02) of the
Company, Funding and the Trust.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1 Underwriting Agreement, dated June 5, 1997, among the Company,
Funding, the Trust and Goldman, Sachs & Co.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: June 6, 1997 THE SOUTHERN COMPANY
By /s/Tommy Chisholm
Tommy Chisholm
Secretary
Exhibit 1
$200,000,000
SOUTHERN COMPANY CAPITAL TRUST III
(a Delaware Statutory Business Trust)
7.75% Cumulative Quarterly Income Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
June 5, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Southern Company Capital Trust III (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
(ss.) 3801 et seq.), Southern Company Capital Funding, Inc., a Delaware
corporation ("SoCo Capital"), and The Southern Company, a Delaware corporation
(the "Company" and, together with the Trust and SoCo Capital, the "Offerors"),
confirm their agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom you are acting as representative (in such capacity,
you shall hereinafter be referred to as the "Representative"), with respect to
the sale by the Trust and the purchase by the Underwriters, acting severally and
not jointly, of the respective numbers of 7.75% Cumulative Quarterly Income
Preferred Securities (liquidation amount $25 per Preferred Security) of the
Trust ("Preferred Securities") set forth in Schedule I. The Preferred Securities
will be guaranteed by the Company with respect to distributions and payments
upon liquidation, redemption and otherwise (the "Preferred Securities
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee Agreement"), dated as of June 1, 1997, between
the Company and Bankers Trust Company, as trustee (the "Preferred Securities
Guarantee Trustee"). The
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Preferred Securities and the related Preferred Securities
Guarantee are referred to herein as the "Securities."
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representative
deems advisable after this Agreement has been executed and delivered.
The entire proceeds from the sale of the Securities will be
combined with the entire proceeds from the sale by the Trust to SoCo Capital of
its common securities (the "Common Securities") and will be used by the Trust to
purchase the $206,186,000 aggregate principal amount of 7.75% Junior
Subordinated Notes due March 31, 2037 (the "Junior Subordinated Notes") to be
issued by SoCo Capital. The Junior Subordinated Notes will be guaranteed by the
Company with respect to interest and principal, including payments on
acceleration, redemption and otherwise (the "Notes Guarantee") pursuant to the
terms of the Indenture.
The Preferred Securities and the Common Securities will be
issued pursuant to the Amended and Restated Trust Agreement, dated as of June 1,
1997 (the "Trust Agreement"), among SoCo Capital, as Depositor, Wayne Boston and
Richard A. Childs (the "Administrative Trustees"), Bankers Trust (Delaware), a
Delaware banking corporation (the "Delaware Trustee") and Bankers Trust Company,
a New York banking corporation (the "Property Trustee" and, together with the
Delaware Trustee and the Administrative Trustees, the "Trustees"), as trustees,
and the holders from time to time of undivided beneficial interests in the
assets of the Trust. The Junior Subordinated Notes will be issued pursuant to an
indenture, dated as of June 1, 1997 (the "Base Indenture"), between SoCo Capital
and Bankers Trust Company, as trustee (the "Debt Trustee"), and a first
supplemental indenture to the Base Indenture, dated as of June 6, 1997 (the
"Supplemental Indenture," and together with the Base Indenture and any other
amendments or supplements thereto, the "Indenture"), among SoCo Capital, the
Company and the Debt Trustee.
The Company and the Trust will enter into an Agreement as to
Expenses and liabilities dated as of June 1, 1997 (the "Agreement as to Expenses
and Liabilities"). Pursuant to the Agreement as to Expenses and Liabilities, the
Company will guarantee to each person or entity to whom the Trust may be
indebted or liable, the full payment of such obligations.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The
Offerors jointly and severally represent and warrant to each
Underwriter as follows:
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(a) A registration statement on Form S-3, as amended (File
Nos. 333-28187, 333-28187-01 and 333- 28187-02), in respect of the
Preferred Securities, the Preferred Securities Guarantee, the Notes
Guarantee and the Junior Subordinated Notes has been prepared and filed
in accordance with the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), with the Securities and Exchange
Commission (the "Commission"); such registration statement, as it may
have been amended through the time the same first became effective,
including the financial statements, the documents incorporated or
deemed incorporated therein by reference, pursuant to Item 12 of Form
S-3 under the 1933 Act, the exhibits thereto and the information deemed
to be part thereof pursuant to Rule 430A(b) of the rules and
regulations of the Commission under the 1933 Act, being herein called
the "Registration Statement", the prospectus included in the
Registration Statement when the same became effective that omits the
information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the rules and regulations of the Commission under the 1933
Act, being herein called the "Preliminary Prospectus", and the
prospectus, including the price and terms of the offering, the interest
rate, maturity date and certain other information filed with the
Commission in accordance with Rule 430A and pursuant to Rule 424(b) of
the rules and regulations of the Commission under the 1933 Act,
including all documents then incorporated or deemed to have been
incorporated therein by reference, being herein called the
"Prospectus." The Registration Statement has been declared effective by
the Commission and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the best knowledge of the Company,
threatened by the Commission. Any reference herein to the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to the Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in the Preliminary Prospectus or
the Prospectus, as the case may be.
(b) The documents incorporated by reference in
the Registration Statement or Prospectus, when they
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were filed with the Commission, complied in all material respects with
the applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents are filed with the Commission,
will comply in all material respects with the applicable provisions of
the Exchange Act and the rules and regulations of the Commission
thereunder and, when read together with the Prospectus as it otherwise
may be amended or supplemented, will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that neither the Trust, SoCo Capital nor the Company makes any warranty
or representation to any Underwriter with respect to: (A) any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust, SoCo Capital or the
Company by an Underwriter through you expressly for use in the
Preliminary Prospectus or the Prospectus; or (B) any information set
forth in the Preliminary Prospectus or the Prospectus under the caption
"Book Entry Only Issuance -- The Depository Trust Company."
(c) The Registration Statement, the Preliminary Prospectus and
the Prospectus comply, in all material respects, in form and substance,
with the applicable provisions of the Securities Act, the Exchange Act,
the Trust Indenture Act of 1939, as amended (the "TIA") and the rules
and regulations of the Commission thereunder and neither the
Registration Statement nor the Prospectus contains an untrue statement
of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; except that neither the Company, SoCo Capital nor the Trust
makes any warranties or representations with respect to (A) that part
of the Registration Statement which shall constitute the Statements of
Eligibility (Form T-1) (collectively, the "Form T-1") under the TIA,
(B) statements or omissions made in the Registration Statement or the
Prospectus in reliance upon and in
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conformity with information furnished in writing to the Trust, SoCo
Capital or the Company by an Underwriter expressly for use therein or
(C) any information set forth in the Prospectus under the caption
"Book-Entry Only Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions
for use of Form S-3, as set forth in the General Instructions thereof,
have been satisfied.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company.
(f) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of the Trust (it being
understood that any such change involving only the Company shall not
constitute such a change with respect to the Trust).
(g) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of SoCo Capital (it being
understood that any such change involving only the Company shall not
constitute such a change with respect to SoCo Capital).
(h) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware, and has due corporate authority to conduct the
business in which it is engaged and to own and operate the properties
used by it in such business, to enter into and perform its obligations
under this Agreement, the Indenture and the Preferred Securities
Guarantee Agreement and to issue and deliver the Preferred Securities
Guarantee and the Notes Guarantee.
(i) SoCo Capital has been duly incorporated and
is validly existing and in good standing as a
corporation under the laws of the State of Delaware and
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has due corporate authority to conduct its business, as described in
the Registration Statement and the Prospectus, to enter into and
perform its obligations under this Agreement, the Trust Agreement and
the Indenture and to purchase, own and hold the Common Securities
issued by the Trust and to issue the Junior Subordinated Notes.
(j) The Trust has been duly created and is validly existing
and in good standing as a business trust under the Delaware Act with
the power and authority to own property and to conduct its business as
described in the Registration Statement and the Prospectus and to enter
into and perform its obligations under this Agreement and the Trust
Agreement; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus;
the Trust is and will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(k) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to SoCo
Capital against payment therefor as described in the Registration
Statement and the Prospectus, will be validly issued and (subject to
the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in assets of the Trust and will conform
in all material respects to all statements relating thereto contained
in the Prospectus; the issuance of the Common Securities is not subject
to preemptive or other similar rights; and, on the Closing Date (as
defined herein), all of the issued and outstanding Common Securities of
the Trust will be directly owned by SoCo Capital, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(l) This Agreement has been duly authorized,
executed and delivered by each of the Offerors.
(m) The Trust Agreement has been duly authorized by SoCo
Capital and, on the Closing Date, will have been duly executed and
delivered by SoCo Capital and
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the Administrative Trustees, and assuming due authorization, execution
and delivery of the Trust Agreement by the Delaware Trustee and the
Property Trustee, the Trust Agreement will, on the Closing Date, be a
valid and binding obligation of SoCo Capital and the Administrative
Trustees, enforceable against SoCo Capital and the Administrative
Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally
or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the "Enforceability
Exceptions") and will conform in all material respects to all
statements relating thereto in the Prospectus; and on the Closing Date,
the Trust Agreement will have been duly qualified under the TIA.
(n) The Preferred Securities Guarantee Agreement and the
Agreement as to Expenses and Liabilities have been duly authorized by
the Company and, on the Closing Date, will have been duly executed and
delivered by the Company, and, assuming due authorization, execution
and delivery of the Preferred Securities Guarantee Agreement and the
Agreement as to Expenses and Liabilities by the other respective
parties thereto, the Preferred Securities Guarantee Agreement and the
Agreement as to Expenses and Liabilities will, on the Closing Date,
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions, and each of the Preferred Securities Guarantee, the
Agreement as to Expenses and Liabilities and the Preferred Securities
Guarantee Agreement will conform in all material respects to all
statements relating thereto contained in the Prospectus, and, on the
Closing Date, the Preferred Securities Guarantee Agreement will have
been duly qualified under the TIA.
(o) The Preferred Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust pursuant to
this Agreement against payment of the consideration set forth herein,
will be validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial interests
in the assets of the Trust, will be entitled to the benefits of the
Trust Agreement and will conform in all material respects to all
statements relating thereto contained in the Prospectus, the issuance
of the Preferred Securities is
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not subject to preemptive or other similar rights; (subject to the
terms of the Trust Agreement) holders of Preferred Securities will be
entitled to the same limitation of personal liability under Delaware
law as extended to stockholders of private corporations for profit.
(p) The Indenture has been duly authorized by SoCo Capital and
the Company and, on the Closing Date, will have been duly executed and
delivered by SoCo Capital and the Company, and, assuming due
authorization, execution and delivery of the Indenture by the Debt
Trustee, the Indenture will, on the Closing Date, constitute a valid
and binding obligation of each of SoCo Capital and the Company,
enforceable against each in accordance with its terms except to the
extent that enforcement thereof may be limited by the Enforceability
Exceptions; the Indenture will conform in all material respects to all
statements relating thereto contained in the Prospectus; and on the
Closing Date, the Indenture will have been duly qualified under the
TIA.
(q) The issuance and delivery of the Junior Subordinated Notes
have been duly authorized by SoCo Capital and, on the Closing Date, the
Junior Subordinated Notes will have been duly executed by SoCo Capital
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and legally binding obligations of SoCo Capital,
enforceable against SoCo Capital in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Prospectus.
(r) The Company's obligations under the Preferred Securities
Guarantee (i) are subordinate and junior in right of payment to all
liabilities of the Company, except those obligations or liabilities
made pari passu or subordinate by their terms, (ii) are pari passu with
the preferred stock that may be issued by the Company and (iii) are
senior to all common stock of the Company.
(s) The Junior Subordinated Notes are subordinated and junior
in right of payment to all "Senior Indebtedness" (as defined in the
Indenture) of SoCo Capital.
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(t) The Notes Guarantee is subordinate and junior
to all "Senior Indebtedness" (as defined in the
Indenture") of the Company.
(u) Each of the Administrative Trustees of the
Trust has been duly authorized by the Company to
execute and deliver the Trust Agreement.
(v) Neither the Trust, the Company nor SoCo Capital nor any of
the Company's other subsidiaries is and, after giving effect to the
offering and sale of the Preferred Securities, will be an "investment
company" or an entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(w) The execution, delivery and performance by the Offerors of
this Agreement and by the Trust and SoCo Capital of the Trust
Agreement, the Preferred Securities, the Common Securities, the Junior
Subordinated Notes, and by SoCo Capital and the Company of the
Indenture, and by the Company of the Preferred Securities Guarantee
Agreement, the Agreement as to Expenses and Liabilities, the Preferred
Securities Guarantee and the Notes Guarantee and the consummation by
the Offerors of the transactions contemplated herein and therein and
compliance by the Offerors with their respective obligations hereunder
and thereunder shall have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Offerors and do not and
will not result in any violation of the charter or bylaws of the
Company, SoCo Capital or the Trust Agreement or related Certificate of
Trust and do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust, SoCo Capital or the Company
under (A) any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Trust, SoCo Capital
or the Company is a party or by which any of them may be bound or to
which any of their properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the aggregate,
be materially adverse to the Trust, SoCo Capital or the Company or
materially adverse to the transactions contemplated by this Agreement),
or (B) any existing applicable law, rule, regulation, judgment, order
or decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency or
other governmental body having jurisdiction
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over the Trust, SoCo Capital or the Company, or any of
their respective properties.
(x) No authorization, approval, consent or order of any court
or governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes, the Preferred
Securities Guarantee or the Notes Guarantee or the transactions
contemplated in this Agreement, except (A) such as may be required
under the Securities Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility Holding Company Act of
1935, as amended (the "1935 Act"); (C) the qualification of the Trust
Agreement, the Preferred Securities Guarantee Agreement and the
Indenture under the TIA; and (D) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS;
CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in Schedule II hereto, the number of Preferred
Securities set forth in Schedule I opposite the name of such Underwriter, plus
any additional number of Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) The purchase price per Preferred Security to be paid by
the several Underwriters for the Preferred Securities shall be an amount equal
to the initial public offering price set forth on Schedule II, which is a fixed
price determined by agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of the Company, the Company hereby
agrees to pay on the Closing Date (as defined below) to the Representative, for
the accounts of the several Underwriters, a commission per Preferred Security as
set forth on Schedule II for the Preferred Securities to be delivered by the
Trust hereunder on the Closing Date.
(c) Payment of the purchase price for, and
delivery of certificates for, the Preferred Securities shall
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be made at the offices of Troutman Sanders, LLP, 600 Peachtree Street, N.E.,
Atlanta, Georgia at 10:00 A.M., New York time, on June 6, 1997 (unless postponed
in accordance with the provisions of Section 10) or such other time, place or
date as shall be agreed upon by the Representative, the Trust, SoCo Capital and
the Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Trust, by wire transfer in federal
funds at the Closing Date, against delivery to the Representative for the
respective accounts of the Underwriters of certificates for the Preferred
Securities to be purchased by them. Certificates for the Preferred Securities
shall be in such denominations and registered in such names as the
Representative may request in writing at least two business days before the
Closing Date. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Preferred Securities which it has agreed
to purchase. The Representative, individually and not as Representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Preferred Securities to be purchased by any Underwriter whose
funds have not been received by the Closing Date, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) The certificate(s) for the Preferred Securities will be
made available for examination and packaging by the Representative not later
than 12:00 Noon, New York time, on the last business day prior to the Closing
Date.
(e) On the Closing Date, the Company will pay, or cause to be
paid, the commission payable at such time to the Underwriters under Section 2(b)
hereof by wire transfer to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of
the Offerors jointly and severally covenants with each
Underwriter as follows:
(a) The Offerors, on or prior to the Closing Date, will
deliver to the Underwriters conformed copies of the Registration
Statement as originally filed and of all amendments thereto, heretofore
or hereafter made, including any post-effective amendment (in each case
including all exhibits filed therewith, and including unsigned copies
of each consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representative orally of the issuance of any stop order under the
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Securities Act with respect to the Registration Statement, or the
institution of any proceedings therefor, of which the Company shall
have received notice, and will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt removal
thereof, if issued. The Offerors will deliver to the Underwriters
sufficient conformed copies of the Registration Statement, the
Preliminary Prospectus and the Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for distribution to
each Underwriter and, from time to time, as many copies of the
Prospectus, the Preliminary Prospectus and the Prospectus as the
Underwriters may reasonably request for the purposes contemplated by
the Securities Act or the Exchange Act.
(b) The Offerors will furnish the Underwriters with copies of
each amendment and supplement to the Preliminary Prospectus and the
Prospectus relating to the offering of the Preferred Securities in such
quantities as the Underwriters may from time to time reasonably
request. If, during the period (not exceeding nine months) when the
delivery of a prospectus shall be required by law in connection with
the sale of any Preferred Securities by an Underwriter or dealer, any
event relating to or affecting the Company, or of which the Company
shall be advised in writing by the Underwriters, shall occur, which in
the opinion of the Company or of Underwriters' counsel should be set
forth in a supplement to or an amendment of the Preliminary Prospectus
or the Prospectus, as the case may be, in order to make the Preliminary
Prospectus or the Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it shall
be necessary during such period to amend or supplement the Preliminary
Prospectus or the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Preliminary Prospectus or the
Prospectus in order to comply with the Securities Act or the Exchange
Act, the Company forthwith will (i) notify the Underwriters to suspend
solicitation of purchases of the Preferred Securities and (ii) at its
expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Preliminary Prospectus
or the Prospectus which will supplement or amend the Preliminary
Prospectus or the Prospectus so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances when the Preliminary
Prospectus or the
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Prospectus is delivered, not misleading or which will effect any other
necessary compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Preferred Securities
after the expiration of the period specified in the preceding sentence,
the Company, upon the request of such Underwriter, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity
of a supplemented or amended prospectus, or supplements or amendments
to the Prospectus, complying with Section 10(a) of the Securities Act.
During the period specified in the second sentence of this subsection,
the Company will continue to prepare and file with the Commission on a
timely basis all documents or amendments required under the Exchange
Act and the rules and regulations thereunder; provided, that the
Company shall not file such documents or amendments without also
furnishing copies thereof prior to such filing to the Representative
and Dewey Ballantine.
(c) The Offerors will endeavor, in cooperation with the
Underwriters, to qualify the Preferred Securities and, to the extent
required or advisable, the Preferred Securities Guarantee and the
Junior Subordinated Notes, for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Representative may designate; provided, however,
that none of the Offerors shall be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security
holders as soon as practicable but not later than 45 days after the
close of the period covered thereby, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the rules
and regulations under the Securities Act) covering a twelve-month
period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158) of
the Registration Statement.
(e) The Offerors will use best efforts to effect the listing
of the Preferred Securities on the New York Stock Exchange; if the
Preferred Securities are exchanged for Junior Subordinated Notes, the
Company will use its best efforts to effect the listing of the Junior
Subordinated Notes on any exchange on which the Preferred Securities
are then listed.
13
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(f) During a period of 15 days from the date of this
Agreement, neither the Trust, SoCo Capital nor the Company will,
without the Representative's prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Preferred Securities, any security
convertible into or exchangeable into or exercisable for Preferred
Securities or the Junior Subordinated Notes or any debt securities
substantially similar to the Junior Subordinated Notes or equity
securities substantially similar to the Preferred Securities (except
for the Junior Subordinated Notes and the Preferred Securities issued
pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement,
and in any event within the time prescribed by Rule 424 under the
Securities Act, to file the Prospectus with the Commission and to
advise the Representative of such filing and to confirm such advice in
writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incident to the performance of each Offeror's obligations under this
Agreement, including, but not limited to, the expenses of (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto (ii) the preparation, issuance and delivery of the certificate(s) for
the Preferred Securities to the Underwriters, (iii) the fees and disbursements
of the Company's, SoCo Capital's and the Trust's counsel and accountants, (iv)
the qualification of the Preferred Securities and, to the extent required or
advisable, the Notes Guarantee, the Preferred Securities Guarantee and the
Junior Subordinated Notes, under securities laws in accordance with the
provisions of Section 3(c) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the printing and delivery
to the Underwriters of copies of the Registration Statement as originally filed
and of each amendment thereto and of the Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable, (viii) the
fees and expenses of the Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee in connection with the Indenture and the Junior
Subordinated Notes, (ix) the fees and expenses of the Delaware Trustee, the
Property
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Trustee and the Guarantee Trustee, including the fees and disbursements of
counsel for the Delaware Trustee in connection with the Trust Agreement and the
related Certificate of Trust, (x) the fees and disbursements of Delaware counsel
to the Trust and SoCo Capital, (xi) any fees payable in connection with the
rating of the Preferred Securities and Junior Subordinated Notes, (xii) the fees
and expenses incurred with the listing of the Preferred Securities and, if
applicable, the Junior Subordinated Notes on the New York Stock Exchange, (xiii)
the cost and charges of any transfer agent or registrar and (xiv) the cost of
qualifying the Preferred Securities and, if applicable, the Junior Subordinated
Notes with the Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Preferred Securities, including fees and disbursements of
their counsel, Dewey Ballantine.
SECTION 5. CONDITIONS OF UNDERWRITERS'
OBLIGATIONS. The obligations of the Underwriters to
purchase and pay for the Preferred Securities are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date. If
filing of the Preliminary Prospectus or the Prospectus, or any
supplement thereto, is required pursuant to Rule 424, the Preliminary
Prospectus or the Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424.
(b) Orders of the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall contain
no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which
have heretofore been delivered to the Representative, are deemed
acceptable to the Underwriters and the Company and all provisions of
such order or orders hereafter entered shall be deemed acceptable to
the Underwriters and the Company unless within 24 hours after receiving
a copy of any such order any party to this Agreement shall give notice
to the other parties to the effect that such order contains an
unacceptable provision).
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<PAGE>
(c) On the Closing Date the Representative shall
have received:
(1) The opinion, dated the Closing Date, of Troutman
Sanders LLP, counsel for the Company, substantially in the form
attached hereto as Schedule III.
(2) The opinion, dated the Closing Date, of Richards,
Layton & Finger, Delaware counsel to the Trust, substantially in the
form attached hereto as Schedule IV.
(3) The opinion, dated the Closing Date, of Richards,
Layton & Finger, Delaware counsel to Bankers Trust (Delaware), as
Delaware Trustee under the Trust Agreement, substantially in the form
attached hereto as Schedule V.
(4) The opinion, dated the Closing Date, of White and
Case, counsel to the Property Trustee, the Guarantee Trustee and the
Debt Trustee, substantially in the form attached hereto as Schedule VI.
(5) The favorable opinion, dated as of the Closing
Date, of Dewey Ballantine, counsel for the Underwriters, substantially
in the form attached hereto as Schedule VII.
(6) At the Closing Date, there shall not have been,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change
in the business, properties or financial condition of the Offerors,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the Chairman of the
Board, the President or any Vice President of the Company and SoCo
Capital and a certificate of the Administrative Trustees of the Trust,
and dated as of the Closing Date, to the effect that (i) there has been
no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of the Closing Date,
(iii) the Offerors have complied with all agreements and satisfied all
conditions on their respective parts to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to the knowledge
of the Company, threatened by the Commission.
16
<PAGE>
(7) On the Closing Date, the Representative shall
have received from Arthur Andersen LLP a letter dated the Closing Date
to the effect that: (A) they are independent public accountants with
respect to the Company within the meaning of the Securities Act and the
rules and regulations under the Securities Act; (B) in their opinion,
the financial statements and schedules audited by them and incorporated
by reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act and the Exchange Act and the rules and regulations under the
Securities Act and the Exchange Act; (C) they have performed certain
limited procedures through a specified date not more than five business
days prior to the date of such letter, namely (i) reading the minute
books of the Company; (ii) reading the unaudited financial statements,
if any, of the Company incorporated in the Prospectus and agreeing the
amounts therein with the Company's accounting records; (iii) making
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters regarding whether the unaudited
financial statements, if any, incorporated in the Prospectus (a) are in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements incorporated in the Prospectus and (b) comply as to form in
all material respects with the applicable accounting requirements of
the Exchange Act and the rules and regulations under the Exchange Act;
(iv) reading the unaudited amounts for Operating Revenues, Income
Before Interest Charges and Net Income After Dividends on Preferred
Stock and the unaudited Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges Plus Preferred Dividend Requirements
(Pre-Income Tax Basis), which amounts shall include such amounts for
the latest period subsequent to that covered by the financial
statements incorporated by reference in the Prospectus for which such
amounts are available at the time this agreement becomes effective; (v)
reading the unaudited financial statements from which the amounts and
ratios described in (iv) were derived and agreeing the amounts therein
to the Company's accounting records; (vi) making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters regarding whether (a) the unaudited amounts and
ratios referred to in (iv) above and the unaudited and the unaudited
financial statements referred to in (v) above are stated on a basis
substantially consistent with that of the corresponding audited amounts
or ratios included or incorporated by reference in the Prospectus and
(b) as of a specified date not more than five
17
<PAGE>
business days prior to the date of delivery of such letter, there has
been any change in the capital stock or long-term debt of the Company
or any decrease in net assets as compared with amounts shown in the
latest audited balance sheet incorporated in the Prospectus, except in
each case for changes or decreases which (I) the Prospectus discloses
have occurred or may occur, (II) are occasioned by the declaration of
dividends, (III) are occasioned by draw-downs under existing pollution
control financing arrangements, (IV) are occasioned by draw-downs and
regularly scheduled payments of capitalized lease obligations, (V) are
occasioned by the purchase or redemption of bonds or stock to satisfy
mandatory or optional redemption provisions relating thereto, or (VI)
are disclosed in such letter; (vii) reading the unaudited amounts for
Operating Revenues, Income Before Interest Charges and Net Income After
Dividends on Preferred Stock and the unaudited Ratios of Earnings to
Fixed Charges and Earnings to Fixed Charges Plus Preferred Dividend
Requirements (Pre-Income Tax Basis) for any period subsequent to those
set forth in (iv) above, which if available shall be set forth in such
letter; (viii) reading the unaudited financial statements from which
the amounts and ratios described in (vii) above were derived and which
will be attached to such letter and agreeing the amounts therein to the
Company's accounting records; and (ix) making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited amounts and ratios
referred to in (vii) above and the unaudited financial statements
referred to in (viii) above are stated on a basis substantially
consistent with that of the corresponding audited amounts or ratios
included or incorporated by reference in the Prospectus; and (D)
reporting their findings as a result of performing the limited
procedures set forth in (C) above. It is understood that the foregoing
procedures do not constitute an audit performed in accordance with
generally accepted auditing standards and they would not necessarily
reveal matters of significance with respect to the comments made in
such letter, and accordingly that Arthur Andersen LLP make no
representations as to the sufficiency of such procedures for the
several Underwriter's purposes.
(8) On the Closing Date, Dewey Ballantine, counsel
for the Underwriters, shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Preferred Securities as
herein contemplated and related proceedings, or in
18
<PAGE>
order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Offerors, in connection
with the issuance and sale of the Preferred Securities as herein
contemplated shall be satisfactory in form and substance to the
Representative and Dewey Ballantine, counsel for the Underwriters.
(9) On the Closing Date, the Preferred Securities
shall have been approved for listing on the New York Stock Exchange
upon notice of issuance.
(10) On the Closing Date, the Representative shall
have received a certificate of a vice president of the Company
certifying that a Special Event (as defined in the Prospectus) shall
not have occurred and be continuing.
(11) That no amendment or supplement to the
Registration Statement, the Preliminary Prospectus or the Prospectus
filed subsequent to the date of this Agreement (including any filing
made by the Company pursuant to Section 13 or 14 of the Exchange Act)
shall be unsatisfactory in form to Dewey Ballantine or shall contain
information (other than with respect to an amendment or supplement
relating solely to the activity of any Underwriter or Underwriters)
which, in the reasonable judgment of the Representative, shall
materially impair the marketability of the Preferred Securities.
(12) The Offerors shall have performed their
respective obligations when and as provided under this Agreement.
If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Offerors at
any time prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Sections 4, 7
and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF
THE OFFERORS.
The obligations of the Offerors shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without
19
<PAGE>
liability of any party to any other party except as otherwise provided in
Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and
hold harmless each of the Underwriters and each person, if any, who controls any
such Underwriter within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, Exchange Act or otherwise, and to reimburse
the Underwriters and such controlling person or persons, if any, for any legal
or other expenses incurred by them in connection with defending any actions,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus, the Registration Statement or the
Prospectus or, if the Offerors shall furnish to the Underwriters any amendments
or any supplements thereto, or shall make any filings pursuant to Section 13 or
14 of the Exchange Act which are incorporated therein by reference, in the
Registration Statement, the Preliminary Prospectus, or the Prospectus as so
amended or supplemented, or arise out of or are based upon any omission or
alleged omission to state therein a material fact or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any such untrue
statement or alleged untrue statement or omission or alleged omission which was
made in the Registration Statement, the Preliminary Prospectus or the Prospectus
in reliance upon and in conformity with information furnished in writing to the
Company by, or through the Representative on behalf of, any Underwriter for use
therein and except that this indemnity with respect to the Preliminary
Prospectus and the Prospectus, if the Offerors shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account of any
losses, claims, damages, liabilities or actions arising from the sale of the
Preferred Securities to any person if a copy of the Preliminary Prospectus or
the Prospectus (exclusive of documents incorporated therein by reference), as
the same may then be amended or supplemented, shall not have been sent or given
by or on behalf of such Underwriter to such person with or prior to the written
confirmation of the sale involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in the Preliminary
Prospectus or the Prospectus as supplemented or amended at the time of such
confirmation. Each Underwriter agrees, within ten days
20
<PAGE>
after the receipt by it of notice of the commencement of any action in respect
of which indemnity may be sought by it, or by any person controlling it, from
the Offerers on account of its agreement contained in this Section 7, to notify
the Offerors in writing of the commencement thereof but the omission of such
Underwriter so to notify the Offerors of any such action shall not release the
Offerors from any liability which it may have to such Underwriter or to such
controlling person otherwise than on account of the indemnity agreement
contained in this Section 7. In case any such action shall be brought against
the Underwriters or any such person controlling such Underwriters and such
Underwriter shall notify the Offerors of the commencement thereof as above
provided, the Offerors shall be entitled to participate in (and, to the extent
that they shall wish, including the selection of counsel, to direct) the defense
thereof, at their own expense. In case the Offerors elect to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or controlling person
unless the employment of such counsel has been authorized in writing by the
Offerors in connection with defending such action. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party. In no event shall any indemnifying party
have any liability or responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim effected without its prior written consent.
(b) The Company agrees to indemnify the Trust against all
loss, liability, claim, damage and expense whatsoever, as due from the Trust
under Section 7(a) hereunder.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, SoCo Capital, their directors and such
of their officers who have signed the Registration Statement, the Trust and each
other Underwriter and each person, if any, who controls the Offerors or any such
other Underwriter within the meaning of
21
<PAGE>
Section 15 of the Securities Act or Section 20(a) of the Exchange Act to the
same extent and upon the same terms as the indemnity agreement of the Offerors
set forth in Section 7(a) hereof, but only with respect to alleged untrue
statements or omissions made in the Registration Statement, the Preliminary
Prospectus, or such documents as amended or supplemented, in reliance upon and
in conformity with information furnished in writing to the Offerors by, or
through the Representative on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers or Trustees of the
Offerors submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by, or on behalf of the Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice
to the Offerors, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities, (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgement of the Representative, the marketability of the
Preferred Securities shall have been materially impaired.
(b) If this Agreement shall be terminated by the Underwriters
pursuant to subsection (a) above or because of any failure or refusal on the
part of the Offerors to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Offerors shall be unable
to perform their obligations under this Agreement, then in any such case, the
Company will reimburse the Underwriters, severally, for the reasonable fees and
disbursements of Dewey Ballantine and for the out of pocket expenses (in an
22
<PAGE>
amount not exceeding a total of $10,000) reasonably incurred by the Underwriters
in making preparations for the purchase, sale and delivery of the Preferred
Securities and, upon such reimbursement, the Offerors shall be absolved from any
further liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail on the Closing Date to purchase the
Preferred Securities that it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the Preferred Securities, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the Preferred Securities, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Offerors shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at
Goldman, Sachs & Co., 85 Broad Street, New York, New York
23
<PAGE>
10004, Attention: Don Hansen, Registration; notices to the Offerors shall be
directed to the Company, SoCo Capital or the Trust c/o: Southern Company
Services, Inc., 270 Peachtree Street N.W., Atlanta, Georgia 30303, Attention:
Charles N. Eldred.
SECTION 12. PARTIES. This Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Trust, SoCo Capital, the Company
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Trust, SoCo Capital and the
Company and their respective successors and the controlling persons and
officers, directors and trustees referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Trust, SoCo Capital and the
Company and their respective successors, and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be
executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall
together constitute one and the same instrument.
24
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust, SoCo Capital and the Company
a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Underwriters and the Trust, SoCo
Capital and the Company in accordance with its terms.
Very truly yours,
THE SOUTHERN COMPANY
By:______________________________
Title:___________________________
SOUTHERN COMPANY CAPITAL
FUNDING, INC.
By:______________________________
Title:___________________________
SOUTHERN COMPANY CAPITAL TRUST III
By:______________________________
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
By:_________________________________________
(Goldman, Sachs & Co.)
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
<PAGE>
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Goldman, Sachs & Co. 805,000
Lehman Brothers Inc. 805,000
J.P. Morgan Securities Inc. 795,000
Morgan Stanley & Co. Incorporated 795,000
PaineWebber Incorporated 795,000
Prudential Securities Incorporated 795,000
The Robinson-Humphrey Company, Inc. 795,000
Smith Barney Inc. 795,000
Bear, Stearns & Co. Inc. 60,000
J.C. Bradford & Co. 60,000
Alex. Brown & Sons Incorporated 60,000
Donaldson, Lufkin & Jenrette Securities Corporation 60,000
EVEREN Securities, Inc. 60,000
Interstate/Johnson Lane Corporation 60,000
Legg Mason Wood Walker, Incorporated 60,000
Morgan Keegan & Company, Inc. 60,000
Oppenheimer & Co., Inc. 60,000
Regions Investment Company, Inc. 60,000
Stephens Inc. 60,000
Wheat, First Securities, Inc. 60,000
Advest, Inc. 30,000
Robert W. Baird & Co. Incorporated 30,000
Blaylock & Partners, L.P. 30,000
Cowen & Company 30,000
Craigie Incorporated 30,000
Crowell, Weedon & Co. 30,000
Dain Bosworth Incorporated 30,000
Fahnestock & Co. Inc. 30,000
First Albany Corporation 30,000
First Southwest Company 30,000
J.J.B. Hilliard, W.L. Lyons, Inc. 30,000
Janney Montgomery Scott Inc. 30,000
Kennedy, Cabot & Co. 30,000
McDonald & Company Securities, Inc. 30,000
McGinn, Smith & Co., Inc. 30,000
The Ohio Company 30,000
Olde Discount Corporation 30,000
Piper Jaffray Inc. 30,000
Principal Financial Securities, Inc. 30,000
Pryor, McClendon, Counts & Co., Inc. 30,000
Rauscher Pierce Refsnes, Inc. 30,000
Raymond James & Associates, Inc. 30,000
Roney & Co., LLC 30,000
Muriel Siebert & Co., Inc. 30,000
Sterne, Agee & Leach, Inc. 30,000
Stifel, Nicolaus & Company, Incorporated 30,000
Sutro & Co. Incorporated 30,000
Trilon International Inc. 30,000
Tucker Anthony Incorporated 30,000
U.S. Clearing Corp. 30,000
---------
TOTAL 8,000,000
27
<PAGE>
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25
Compensation per Preferred Security to be paid by the Company to the several
Underwriters in respect of their commitments: $.50 for Preferred Securities sold
to certain institutions, $.7875 for Preferred Securities sold to other
purchasers
<PAGE>
Schedule III
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 1997
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
SOUTHERN COMPANY CAPITAL TRUST III
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES
Dear Sirs:
We have acted as counsel to The Southern Company (the
"Company") in connection with (i) the formation of (a) Southern Company Capital
Trust III, a Delaware statutory business trust (the "Trust"), pursuant to the
amended and restated trust agreement dated __________, 1997 among Southern
Company Capital Funding, Inc., a Delaware corporation ("SoCo Capital") and the
trustees named therein (the "Trust Agreement") and (b) SoCo Capital (SoCo
Capital along with the Company and the Trust being hereinafter sometimes
referred to as the "Offerors"); (ii) the Trust's issuance and sale of Cumulative
Quarterly Income Preferred Securities evidencing approximately a 97% undivided
interest in the Trust (the "Preferred Securities"); (iii) the Trust's issuance
and sale of Common Securities evidencing approximately a 3% undivided interest
in the Trust (the "Common Securities"); (iv) SoCo Capital's issuance and sale to
the Trust of $___________ of its ___% Junior Subordinated Notes (the "Notes")
pursuant to a Subordinated Note Indenture dated as of __________ 1, 1997, among
SoCo Capital, the Company and Bankers Trust Company, as trustee, as supplemented
by the First Supplemental Indenture dated as of __________ __, 1997
(collectively, the "Indenture"); (v) the Agreement as to Expenses and
Liabilities dated as of __________ 1, 1997, between the Company and the Trust
(the "Agreement as to Expenses and Liabilities"); (vi) its issuance of a
guarantee (the "Preferred Securities Guarantee") of the Preferred Securities
pursuant to a Preferred Securities Guarantee Agreement dated as of __________ 1,
1997 (the "Preferred Securities Guarantee Agreement") between the Company and
___________________, as trustee; and (vii) its issuance of a guarantee (the
"Notes Guarantee") of the Notes pursuant to the terms of the Indenture. The
Preferred Securities are being sold to you today pursuant to the terms of a
Underwriting Agreement dated __________, 1997 (the "Underwriting Agreement"),
among
<PAGE>
the Company, SoCo Capital, the Trust and the underwriters named in Schedule I
thereto (the "Underwriters") for whom you are acting as Representative. This
opinion is being delivered to you as Representative pursuant to Section 5(c)(1)
thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the Registration Statement on Form S-3 (Nos. 333- _______, 333-________ and
333-________) pertaining to the Preferred Securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act") and
the prospectus dated ___________, 1997, filed with the Securities and Exchange
Commission on __________, 1997 (the "Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 1996, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended
and the Current Reports on Form 8-K of the Company dated (the
"Exchange Act Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine and as to matters of Delaware law upon the opinion dated the date
hereof rendered to you by Richards, Layton & Finger, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has due corporate authority to conduct the business in which it is
engaged, to own and operate the properties used by it in such business
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<PAGE>
and to enter into and perform its obligations under the
Preferred Securities Guarantee Agreement, the Indenture, the
Agreement as to Expenses and Liabilities and the
Underwriting Agreement.
2. SoCo Capital has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
Delaware and has due corporate authority to conduct the business, as described
in the Prospectus, to enter into and perform its obligations under the
Underwriting Agreement, the Trust Agreement and the Indenture and to purchase,
own and hold the Common Securities issued by the Trust and to issue the Notes.
3. The execution, delivery and performance by the Offerors of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Offerors.
4. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance and delivery of the Notes,
the Preferred Securities Guarantee and the Notes Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such orders are sufficient
for the issuance and delivery of the Notes, the Common Securities, the Preferred
Securities Guarantee and the Notes Guarantee and the issuance and sale of the
Preferred Securities; the issuance and delivery of the Notes, the Preferred
Securities Guarantee and the Notes Guarantee and the issuance and sale of the
Preferred Securities conform in all material respects with the terms of such
orders; and no other order, consent or other authorization or approval of any
United States federal governmental body (other than in connection or in
compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction, as to which we express no opinion) is legally required for the
issuance and delivery of the Notes, the Preferred Securities Guarantee and the
Notes Guarantee and the issuance and sale of the Preferred Securities in
accordance with the terms of the Underwriting Agreement.
5. The Indenture has been duly authorized, executed and
delivered by SoCo Capital and, assuming the due authorization, execution and
delivery thereof by the Debt Trustee, constitutes a valid and legally binding
instrument of SoCo Capital, enforceable against SoCo Capital in accordance with
its terms, subject to the qualifications that the enforceability of SoCo
Capital's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such
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<PAGE>
enforceability is considered in a proceeding in equity or at law); and each of
the Indenture and the Notes Guarantee conforms as to legal matters in all
material respects to the description thereof in the Prospectus.
6. The Notes have been duly authorized and executed by SoCo
Capital and, when authenticated by the Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, will constitute valid and
binding obligations of SoCo Capital, enforceable against SoCo Capital in
accordance with their terms, subject to the qualifications that the
enforceability of SoCo Capital's obligations under the Notes may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Notes conform as to legal matters in
all material respects to the description thereof in the Prospectus.
7. Each of the Indenture and the Preferred Securities
Guarantee Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Indenture and the Preferred Securities Guarantee Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Preferred Securities Guarantee
Agreement conforms as to legal matters in all material respects to the
description thereof in the Prospectus.
8. The Agreement as to Expenses and Liabilities has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications that the enforceability
of the Company's obligations under the Agreement as to Expenses and Liabilities
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Agreement as to Expenses and
Liabilities conforms as to legal matters in all material respects to the
description thereof in the Prospectus.
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<PAGE>
9. Each of the Indenture, the Preferred Securities Guarantee
Agreement and the Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended.
10. Neither the Company, SoCo Capital nor the Trust is and,
after giving effect to the offering and sale of the Preferred Securities, will
be an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
11. The Trust Agreement has been duly authorized, executed and
delivered by SoCo Capital, and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and binding obligation of
SoCo Capital, enforceable against SoCo Capital in accordance with its terms,
subject to the qualifications that the enforce- ability of SoCo Capital's
obligations under the Trust Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, and by general principles of equity (regardless of
whether such enforce- ability is considered in a proceeding in equity or at
law).
12. The statements as to matters of law and legal
conclusions contained in the Prospectus under the caption
"Certain Federal Income Tax Considerations" are correct in
all material respects.
13. To the best of our knowledge, all of the issued and
outstanding Common Securities of the Trust are directly owned by SoCo Capital,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
14. The execution, delivery and performance by the Trust of
the Underwriting Agreement and the Trust Agreement; the issuance by the Trust of
the Preferred Securities and the Common Securities; the consummation by the
Trust of the transactions contemplated thereby; the execution, delivery and
performance by the Company and SoCo Capital of the Underwriting Agreement; and
the compliance by the Trust with its obligations thereunder do not and will not
result in any violation of the Trust Agreement or related Certificate of Trust,
and do not and will not conflict with, or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Trust under (A) any contract, indenture, mortgage, loan agreement, note, lease
or any other agreement or instrument known to us to which the Trust is a party
or by which it may be bound or to
5
<PAGE>
which any of its properties may be subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a material
adverse effect on the condition (financial or otherwise) of the Trust), (B) any
existing applicable law, rule or regulation applicable to the Trust (other than
the securities or blue sky laws of any jurisdiction, as to which we express no
opinion) or (C) any judgment, order or decree known to us of any government,
governmental instrumentality, or court, domestic or foreign, or any regulatory
body or administrative agency or other governmental body having jurisdiction
over the Trust or any of its properties; and to the best of our knowledge the
Trust is not a party to or otherwise bound by any agreement other than those
which are described in the Prospectus.
15. The Common Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when issued
and delivered by the Trust to SoCo Capital against payment therefor as described
in the Prospectus, will be validly issued fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; and the issuance of the Common
Securities is not subject to preemptive or other similar rights.
16. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; the holders of the Preferred
Securities will (subject to the terms of the Trust Agreement) be entitled to the
same limitation of personal liability under Delaware law as is extended to
stockholders of private corporations for profit organized under the general
corporation law of the State of Delaware; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; and the
Preferred Securities conform as to legal matters in all material respects to the
description thereof in the Prospectus.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraphs 5, 6, 7, 8, 12 and
16 above. In the course of the preparation by the Company of the Registration
Statement, the Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with
representatives of Arthur Andersen LLP and with your counsel. Based upon our
examination of the Registration Statement, the Prospectus and the Exchange Act
Documents,
6
<PAGE>
our investigations made in connection with the preparation of the Registration
Statement, the Prospectus and the Exchange Act Documents and our participation
in the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Prospectus, as of
_______________, complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act Documents, and (ii)
nothing came to our attention which gives us reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
Documents on file with the Commission as of such date), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (including the Exchange Act Documents)
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Delaware and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Dewey Ballantine may rely on this opinion in
giving their opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law.
Yours very truly,
TROUTMAN SANDERS LLP
7
<PAGE>
Schedule IV
[Letterhead of RICHARDS, LAYTON & FINGER]
__________ __, 1997
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
Re: Southern Company Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for The Southern
Company, a Delaware corporation (the "Company"), Southern Company Capital
Funding, Inc., a Delaware corporation ("SoCo Capital") and Southern Company
Capital Trust III, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. This opinion is being furnished to you pursuant to
Section 5(c)(2) of the Underwriting Agreement, dated _____________, 1997 (the
"Underwriting Agreement"), among the Company, SoCo Capital, the Trust, Goldman,
Sachs & Co. and the other Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated ____________,
1997 (the "Original Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on ____________, 1997;
(b) The Trust Agreement of the Trust, dated as of
____________, 1997 among SoCo Capital and the trustees of
the Trust named therein;
(c) The Amended and Restated Trust Agreement, dated as of
_________, 1997 (including Exhibits C and E thereto) (the "Trust Agreement"),
among SoCo Capital, the trustees of the Trust named therein, and the holders,
from time to time, of the undivided beneficial interests in the assets of the
Trust;
(d) The Underwriting Agreement;
<PAGE>
(e) The Prospectus, dated __________ __, 1997 (the
"Prospectus"), relating to the __% Cumulative Quarterly Income Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities");
(f) A Certificate of Good Standing for the Trust,
dated ___________ __, 1997, obtained from the Secretary of
State;
(g) A certificate of an officer of SoCo Capital,
attaching inter alia copies of SoCo Capital's Certificate of
Incorporation and By-Laws;
(h) The Subordinated Note Indenture dated as of _________,
1997 by and between SoCo Capital and ___________, as trustee, as supplemented by
the First Supplemental Indenture dated as of ___________ 1, 1997 (collectively,
the "Indenture"), which includes the guarantee of the Notes (as hereinafter
defined) by the Company (the "Notes Guarantee Agreement");
(i) A specimen of the Series C __% Junior
Subordinated Notes (the "Notes") issued pursuant to the
Indenture;
(j) The Preferred Securities Guarantee Agreement, dated as of
_____________ 1, 1997 by and between the Company and ____________ as trustee
(the "Preferred Securities Guarantee Agreement" and, collectively with the Notes
Guarantees, the "Guarantees"); and
(k) A Certificate of Good Standing for SoCo
Capital dated _____________, 1997, obtained from the
Secretary of State.
Capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (k) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (k) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters
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<PAGE>
recited or assumed herein, all of which we have assumed to be true, complete and
accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraphs 1 and 2 below, the due organization or due
formation or due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation or creation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) except to the extent provided in paragraph 8 below, the power and
authority of each of the parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such documents, (v) except to the
extent provided in paragraph 8 below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be issued by the Trust
(collectively, the "Trust Security Holders") of a Trust Securities Certificate
for such Trust Security and the payment for the Trust Security acquired by it,
in accordance with the Trust Agreement and the Prospectus, (vii) the issuance
and sale of the Trust Securities to the Trust Security Holders in accordance
with the Trust Agreement and the Prospectus and (viii) that SoCo Capital and the
Company derive no income from or connected with sources within the State of
Delaware and have no assets, activities (other than having a registered agent as
required by the General Corporation Law of the State of Delaware and the filing
of documents and payment of franchise taxes with the Delaware Secretary of
State). We have not participated in the preparation of the Prospectus.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
3
<PAGE>
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, 12 Del. C. ss. 3801, et seq.
(the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business
trust have been made.
2. SoCo Capital has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
Delaware and has due corporate power and authority under the General Corporation
Laws of the State of Delaware to enter into and perform its obligations under
the Underwriting Agreement, the Trust Agreement and the Indenture and to
purchase, own and hold the Common Securities issued by the Trust and to issue
the Notes.
3. Under the Business Trust Act and the Trust Agreement, the
Trust has the business trust power and authority to (i) own property and conduct
its business, all as described in the Prospectus, (ii) execute and deliver, and
to perform its obligations under, the Underwriting Agreement, (iii) issue and
perform its obligations under the Trust Securities, and (iv) perform its
obligations under the Trust Agreement.
4. The Trust Securities have been duly authorized by the Trust
Agreement and will be duly and validly issued undivided beneficial interests in
the assets of the Trust. Subject to the qualifications set forth in paragraph 7
below, the Preferred Securities will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust. Under the Business Trust Act
and the Trust Agreement, the Trust Securities are not subject to any preemptive
or other similar rights.
5. Under the Business Trust Act and the Trust Agreement, the
Underwriting Agreement has been duly authorized by all necessary business trust
action on the part of the Trust.
6. No authorization, approval, consent or order of any
Delaware court or Delaware governmental authority or Delaware agency is required
to be obtained by the Trust, the Company or SoCo Capital solely as a result of
(i) the issuance and sale of the Preferred Securities, (ii) the
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<PAGE>
issuance and delivery of the Notes and (iii) the issuance
and delivery of the Guarantees.
7. The Persons to whom Preferred Securities are to be issued
by the Trust (collectively, the "Preferred Security Holders"), as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated, pursuant to the Trust Agreement, to
(i) provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred Securities Certificates
and (ii) provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers under the
Trust Agreement.
8. The Trust Agreement constitutes a valid and binding
obligation of SoCo Capital and the Trustees, and is enforceable against SoCo
Capital and the Trustees, in accordance with its terms.
9. The issuance and sale by the Trust of the Trust Securities,
the execution, delivery and performance by the Trust of the Underwriting
Agreement and the Trust Agreement, the consummation by the Trust of the
transactions contemplated by the Underwriting Agreement and the Trust Agreement
and compliance by the Trust with its obligations thereunder do not violate (i)
any of the provisions of the Certificate or the Trust Agreement or (ii) any
applicable Delaware law or Delaware administrative regulation.
10. We have reviewed the statements in the
Prospectus under the caption "Southern Company Capital Trust
III" and, insofar as they contain statements of Delaware
law, such statements are fairly presented.
The opinion expressed in paragraph 8 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification.
We consent to your relying as to matters of
Delaware law upon this opinion in connection with the
5
<PAGE>
Underwriting Agreement. We consent to the law firms of Troutman Sanders LLP and
Dewey Ballantine relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them pursuant to the Underwriting
Agreement. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
6
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Schedule V
[Letterhead of RICHARDS, LAYTON & FINGER]
__________ __, 1997
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
Re: Southern Company Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel to Bankers Trust
(Delaware), a Delaware banking corporation ("BT(DE)"), solely for purposes of
this opinion in connection with Southern Company Capital Trust III, a business
trust existing under the laws of the State of Delaware (the "Trust") pursuant to
the Trust Agreement, dated as of __________, 1997, as amended and restated by
the Amended and Restated Trust Agreement, dated as of _____________, 1997 among
BT(DE), Southern Company Capital Corporation ("SoCo Capital"), the other
trustees named therein and the holders from time to time of the undivided
beneficial interests in the assets of the Trust (collectively, the "Trust
Agreement"). This opinion is being delivered to you pursuant to Section 5(c)(3)
of the Underwriting Agreement, dated ___________ __, 1997 (the "Underwriting
Agreement"), among Goldman, Sachs & Co., the several Underwriters named in
Schedule I thereto, The Southern Company, SoCo Capital and the Trust, pursuant
to which the $___,000,000 ___% Preferred Securities of the Trust will be sold.
All capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement.
We have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of BT(DE) as we have deemed
necessary or appropriate for the purposes of this opinion. Moreover, as to
certain facts material to the opinions expressed herein, we have relied upon the
representations and warranties contained in the documents referred to in this
paragraph.
Based upon the foregoing and upon an examination of such
questions of law as we have deemed necessary or appropriate, and subject to the
assumptions, exceptions and
<PAGE>
qualifications set forth below, we advise you that, in our
opinion:
1. BT(DE) is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware and has the power and authority to execute, deliver and perform its
obligations under the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and
delivered by BT(DE) and constitutes a legal, valid and binding obligation of
BT(DE), enforceable against BT(DE), in accordance with its terms.
3. The execution and delivery of, and performance of the terms
of, the Trust Agreement by BT(DE), does not conflict with or constitute a breach
of, or default under, the charter or by-laws of BT(DE).
4. No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body having
jurisdiction in the premises is required under Delaware law for the execution,
delivery or performance by BT(DE) of the Trust Agreement.
The foregoing opinions are subject to the following
exceptions, qualifications and assumptions:
(A) We are admitted to practice in the State of Delaware and
we do not hold ourselves out as being experts on the law of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Delaware and the federal laws of the United States of America governing the
banking and trust powers of BT(DE) (except that we express no opinion with
respect to (i) state securities or blue sky laws and (ii) federal securities
laws, including, without limitation, the Securities Act of 1933, as amended the
Securities Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as
amended, and the Investment Company Act of 1940, as amended) and we have not
considered and express no opinion on the laws, rules and regulations of any
other jurisdiction.
(B) The foregoing opinions regarding enforceability are
subject to (i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent transfer or conveyance and similar laws relating to
and affecting the rights and remedies of creditors generally, (ii) principles of
equity (regardless of whether considered and applied in a proceeding in equity
or at law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
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<PAGE>
(C) We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than BT(DE), of the Trust
Agreement, and that each of such parties has the full power, authority and legal
right to execute, deliver and perform such document.
(D) We have assumed that all signatures (other than those of
the Delaware Trustee) on documents examined by us are genuine, that all
documents submitted to us as originals are authentic, and that all documents
submitted to us as copies or specimens conform with the originals, which facts
we have not independently verified.
This opinion may be relied upon by you in connection with the
matters set forth herein, and without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
3
<PAGE>
Schedule VI
[Letterhead of WHITE & CASE]
__________ __, 1997
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
SOUTHERN COMPANY CAPITAL TRUST III
____% Cumulative Quarterly Income Preferred Securities
Dear Sirs:
We have acted as counsel to Bankers Trust Company (the "Bank")
in connection with (a) the Subordinated Note Indenture, dated as of ________
______, 1997 (the "Original Indenture"), among The Southern Company
("Southern"), Southern Company Capital Funding, Inc. ("SoCo Capital") and the
Bank, as Trustee, (b) the First Supplemental Indenture dated as of ___________,
1997 (together with the Original Indenture, herein called the "Indenture"),
among the Company, Southern and the Bank, as Trustee, (c) the Preferred
Securities Guarantee Agreement dated as of ___________, 1997 (the "Guarantee
Agreement") and (d) the Amended and Restated Trust Agreement, dated as of
_________ ______, 1997 (the "Trust Agreement") among SoCo Capital, the Bank, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and
_______________ and ______________, as Administrative Trustees.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture, the Trust Agreement,
the Guarantee Agreement and certain resolutions adopted by the Board of
Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of New York;
ii) the Bank has the corporate trust power
and authority to execute, deliver and perform its
duties under the Indenture, the Trust Agreement and the
<PAGE>
Guarantee Agreement, has duly executed and delivered the Indenture, the
Trust Agreement and the Guarantee Agreement, and, insofar as the laws
governing the trust powers of the Bank are concerned and assuming due
authorization, execution and delivery thereof by the other parties
thereto, each of the Indenture, the Trust Agreement and the Guarantee
Agreement constitutes a legal, valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and subject, as to enforceability, to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law).
iii) the execution, delivery and performance by the
Bank of the Indenture, the Trust Agreement and the Guarantee Agreement
do not conflict with or constitute a breach of the charter or bylaws of
the Bank.
iv) no approval, authorization or other action by, or
filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the trust powers of
the Bank is required in connection with the execution and delivery by
the Bank of the Indenture, the Trust Agreement or the Guarantee
Agreement or the performance by the Bank of its duties thereunder,
except such as have been obtained, taken or made.
We are admitted to practice in the State of New York, and we
express no opinion as to matters governed by any laws other than the laws of the
State of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
WHITE & CASE
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Schedule VII
[Letterhead of DEWEY BALLANTINE]
__________ __, 1997
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
SOUTHERN COMPANY CAPITAL TRUST III
______% Cumulative Quarterly Income Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation (A) by The Southern Company (the
"Company") of Southern Company Capital Funding, Inc. ("SoCo Capital") and (B) by
SoCo Capital of Southern Company Capital Trust III (the "Trust" and,
collectively, with the Company and SoCo Capital, the "Offerors"), a Delaware
statutory business trust, pursuant to the amended and restated trust agreement
dated as of __________ 1, 1997 among SoCo Capital and the trustees named therein
(the "Trust Agreement"); (ii) the Trust's issuance and sale of Cumulative
Quarterly Income Preferred Securities evidencing approximately a 97% undivided
interest in the Trust (the "Preferred Securities"); (iii) the Trust's issuance
and sale of its Common Securities evidencing approximately a 3% undivided
interest in the Trust (the "Common Securities"); (iv) SoCo Capital's issuance
and sale to the Trust of $___________ of its Series _ ___% Junior Subordinated
Notes (the "Notes") pursuant to a Subordinated Note Indenture dated as of
__________, 1997, among SoCo Capital, the Company and Bankers Trust Company, as
trustee, as supplemented by the First Supplemental Indenture dated as of
__________ __, 1997 (collectively, the "Indenture"); (v) the Agreement as to
Expenses and Liabilities dated as of _________ 1, 1997, between the Company and
the Trust (the "Agreement as to Expenses and Liabilities"); (vi) the Company's
issuance of a guarantee (the "Preferred Securities Guarantee") of the Preferred
Securities pursuant to a Preferred Securities Guarantee Agreement dated as of
__________ 1, 1997 (the "Guarantee Agreement") between the Company and Bankers
Trust Company, as trustee; and (vii) the Company's issuance of a guarantee (the
"Notes Guarantee") of the Notes pursuant to the terms of the Indenture, we have
acted as counsel to you and the other underwriters named in the Schedule I (the
"Underwriters") to the Underwriting Agreement dated __________ __, 1997, among
the Company, SoCo Capital, the Trust and the Underwriters for whom you are
<PAGE>
acting as Representative (the "Underwriting Agreement").
This opinion is being delivered to you as Representative
pursuant to Section 5(c)(5) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we
have examined the Registration Statement on Form S-3 (Nos. 333-_______,
333-________ and 333-________) pertaining to the Preferred Securities (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act") and the related prospectus dated ___________, 1997, filed pursuant
to Rule 424(b) under the Act with the Securities and Exchange Commission on
__________, 1997 (the "Prospectus"), which pursuant to Form S-3 incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996, the Quarterly Reports on Form 10-Q of the Company for
the quarters ended
and the Current Reports on Form 8-K of the Company dated (the
"Exchange Act Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the certificates
representing the Preferred Securities and the Notes, of which we have examined
specimens), and we have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as aforesaid and as to
all matters covered hereby which are governed by or dependent upon the laws of
the State of Georgia upon the opinion of Troutman Sanders LLP dated the date
hereof and addressed to you, and as to all matters covered hereby which are
governed by or dependent upon the laws of the State of Delaware upon the opinion
of Richards, Layton & Finger, dated the date hereof and addressed to you (a form
of which is attached as Schedule IV to the Underwriting Agreement), that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
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laws of the State of Delaware and has due corporate authority to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Guarantee Agreement, the Indenture, the Agreement as to
Expenses and Liabilities and the Underwriting Agreement.
2. SoCo Capital has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
Delaware and has due corporate authority to conduct the business in which it is
engaged and to own and operate the properties used by it in such business, to
enter into and perform its obligations under the Guarantee Agreement, the
Underwriting Agreement, the Trust Agreement and the Indenture and to purchase,
own and hold the Common Securities and to issue the Notes.
3. The execution, delivery and performance by the Offerors of
the Underwriting Agreement have been duly authorized by all necessary corporate
action of the Offerors, and the Underwriting Agreement has been duly executed
and delivered by the Offerors.
4. All orders, consents, or other authorizations or approvals
of the Commission legally required for the issuance and delivery of the Notes,
the Notes Guarantee and the Preferred Securities Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such orders are sufficient
for the issuance and delivery of the Notes, the Notes Guarantee and the
Preferred Securities Guarantee and the issuance and sale of the Preferred
Securities; the issuance and delivery of the Notes, the Notes Guarantee and the
Preferred Securities Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms of such orders; and
no other order, consent or other authorization or approval of any United States
federal governmental body is legally required for the issuance and delivery of
the Notes, the Notes Guarantee and the Preferred Securities Guarantee and the
issuance and sale of the Preferred Securities in accordance with the terms of
the Underwriting Agreement.
5. The Indenture has been duly authorized, executed and
delivered by SoCo Capital and, assuming the due authorization, execution and
delivery thereof by the Debt Trustee, constitutes a valid and legally binding
instrument of SoCo Capital, enforceable against SoCo Capital in accordance with
its terms, subject to the qualifications that the enforceability of SoCo
Capital's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such
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enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Prospectus.
6. The Notes have been duly authorized and executed by SoCo
Capital and, when authenticated by the Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, will constitute valid and
binding obligations of SoCo Capital enforceable against SoCo Capital in
accordance with their terms, subject to the qualifications that the
enforceability of SoCo Capital's obligations under the Notes may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Notes conform as to legal matters in
all material respects to the description thereof in the Prospectus.
7. Each of the Indenture and Guarantee Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications that the enforceability
of the Company's obligations under each of the Indenture and the Guarantee
Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and each of the Notes Guarantee
and the Guarantee Agreement conforms as to legal matters in all material
respects to the description thereof in the Prospectus.
8. Each of the Indenture, the Trust Agreement
and the Guarantee Agreement has been duly qualified under
the Trust Indenture Act of 1939, as amended.
9. The Agreement as to Expenses and Liabilities has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications that the enforceability
of the Company's obligations under the Agreement as to Expenses and Liabilities
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Agreement as to
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<PAGE>
Expenses and Liabilities conforms as to legal matters in all material respects
to the description thereof in the Prospectus.
10. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred Securities conform as to
legal matters in all material respects to the description thereof in the
Prospectus.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraphs 5, 6, 7, 9 and 10
above. In the course of the preparation by the Company of the Registration
Statement, the Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with counsel for
the Company, and with representatives of Arthur Andersen LLP. Based upon our
examination of the Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the Prospectus and the Exchange Act Documents and our
participation in the conferences referred to above, (i) we are of the opinion
that the Registration Statement, as of its effective date, and the Prospectus,
as of _______________, complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act Documents, and (ii)
nothing came to our attention which gives us reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
Documents on file with the Commission as of such date), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (including the Exchange Act Documents)
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements
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<PAGE>
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents.
We are members of the State Bar of New York and we do not express any
opinion herein concerning any law other than the law of the State of New York,
the federal law of the United States, and to the extent set forth herein, the
laws of the States of Delaware and Georgia.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent, except that Troutman Sanders LLP may rely on this opinion in giving its
opinions dated the date hereof pursuant to Section 5(c)(1) of the Underwriting
Agreement and Sections 102, 302 and 904 of the Indenture, insofar as such
opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE
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