As filed with the Securities and Exchange Commission on January 14, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE SOUTHERN COMPANY
(Exact name of registrant as specified in its charter)
Delaware 58-0690070
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
270 Peachtree Street, N.W. 30303
Atlanta, Georgia (Zip Code)
(Address of principal executive offices)
THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
(Full title of the plan)
TOMMY CHISHOLM, Secretary
THE SOUTHERN COMPANY
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
(Name and address of agent for service)
(404) 506-0540
(Telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all
orders, notices and communications to:
W. L. WESTBROOK JOHN D. McLANAHAN
Financial Vice President TROUTMAN SANDERS LLP
THE SOUTHERN COMPANY 600 Peachtree Street, N.E.
270 Peachtree Street, N.W. Suite 5200
Atlanta, Georgia 30303 Atlanta, Georgia 30308-2216
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================== ------------------------ ------------------------ ------------------------ ------------------------
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of Securities to be Aggregate Price Aggregate Registration
to be Registered Registered (1) Per Unit (2) Offering Price (2) Fee
========================== ======================== ======================== ======================== ========================
<S> <C> <C> <C> <C>
Common Stock, par value 10,000,000 shares $25 3/16 $251,875,000 $74,304
$5 per share
========================== ======================== ======================== ======================== ========================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein.
(2) Pursuant to Rule 457(h)(1), these figures are based upon the
average of the high and low prices paid for a share of the Company's Common
Stock on January 12, 1998, as reported in the New York Stock Exchange
consolidated reporting system, and are used solely for the purpose of
calculating the registration fee.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
registration statement; and all documents subsequently filed by The Southern
Company ("SOUTHERN" or the "registrant") or The Southern Company Employee
Savings Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
(a) (1) The registrant's Annual Report on Form 10-K for the
year ended December 31, 1996.
(2) The Plan's Annual Report on Form 11-K for the year
ended December 31, 1996.
(b) (1) The registrant's Current Reports on Form 8-K dated
February 12, 1997, June 5, 1997 and July 2, 1997.
(2) The registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997.
(c) The description of the registrant's common stock
contained in Registration No. 333-09077 filed under
the Securities Act of 1933.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of Title 8 of the Delaware Code gives a corporation power
to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if
the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe the person's conduct was unlawful.
The same Section also gives a corporation power to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the
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right of the corporation to procure a judgment in its favor by reason
of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper. Also, the Section
states that, to the extent that a present or former director or
officer of a corporation has been successful on the merits or
otherwise in defense of any such action, suit or proceeding, or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
The Bylaws of SOUTHERN provide in substance that no present or future
director or officer of SOUTHERN shall be liable for any act,
omission, step or conduct taken or had in good faith which is
required, authorized or approved by order issued pursuant to the
Public Utility Holding Company Act of 1935, the Federal Power Act, or
any state statute regulating SOUTHERN or its subsidiaries by reason
of their being public utility companies or public utility holding
companies, or any amendment to any thereof. In the event that such
provisions are found by a court not to constitute a valid defense,
each such director and officer shall be reimbursed for, or
indemnified against, all expenses and liabilities incurred by him or
imposed on him, in connection with, or arising out of, any such
action, suit or proceeding based on any act, omission, step or
conduct taken or had in good faith as in such Bylaws described.
The Bylaws of SOUTHERN also provide in pertinent part as follows:
"Each person who is or was a director or officer of the Corporation
and who was or is a party or was or is threatened to be made a party
to any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, shall be indemnified by the Corporation as a
matter of right against any and all expenses (including attorneys'
fees) actually and reasonably incurred by him and against any and all
claims, judgments, fines, penalties, liabilities and amounts paid in
settlement actually incurred by him in defense of such claim, action,
suit or proceeding, including appeals, to the full extent permitted
by applicable law. The indemnification provided by this Section shall
inure to the benefit of the heirs, executors and administrators of
such person.
Expenses (including attorneys' fees) incurred by a director or
officer of the Corporation with respect to the defense of any such
claim, action, suit or proceeding may be advanced by the Corporation
prior to the final disposition of such claim, action, suit or
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<PAGE>
proceeding, as authorized by the Board of Directors in the specific
case, upon receipt of an undertaking by or on behalf of such person
to repay such amount unless it shall ultimately be determined that
such person is entitled to be indemnified by the Corporation under
this Section or otherwise; provided, however, that the advancement of
such expenses shall not be deemed to be indemnification unless and
until it shall ultimately be determined that such person is entitled
to be indemnified by the Corporation.
The Corporation may purchase and maintain insurance at the expense of
the Corporation on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or any person who is
or was serving at the request of the Corporation as a director (or
the equivalent), officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, against any liability or expense (including
attorneys' fees) asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability or expense under this Section or otherwise.
The foregoing rights shall not be exclusive of any other rights to
which any such director or officer may otherwise be entitled and
shall be available whether or not the director or officer continues
to be a director or officer at the time of incurring any such
expenses and liabilities."
SOUTHERN has an insurance policy covering its liabilities and
expenses which might arise in connection with its lawful indemnification of its
directors and officers for certain of their liabilities and expenses and also
covering its officers and directors against certain other liabilities and
expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
4(a) - Composite Certificate of Incorporation of SOUTHERN
reflecting all amendments to date. (Designated in
Registration No. 33-3546 as Exhibit 4(a), in
Certificate of Notification, File No. 70-7341, as
Exhibit A and in Certificate of Notification, File
No. 70-8181, as Exhibit A.)
4(b) - Bylaws of SOUTHERN as amended effective October 21,
1991 and presently in effect. (Designated in Form
U-1, File No. 70-8181, as Exhibit A-2.)
4(c) - Amended and Restated Plan Agreement for The
Southern Company Employee Savings Plan, and the First
Amendment and Second Amendment thereto. (Designated
in Form 10-K for the year ended December 31, 1995,
File No. 1-3526, as Exhibit 10(a)63.)
4(d) - Third Amendment and Fourth Amendment to The Southern
Company Employee Savings Plan. (Designated in Form
10-K for the year ended December 31, 1996, File No.
1-3526, as Exhibit 10(a)64.)
4(e) - Fifth Amendment and Sixth Amendment to The Southern
Company Employee Savings Plan.
4(f) - Trust Agreement between Southern Company Services,
Inc. and Merrill Lynch Trust Company of Florida, as
Trustee under the Plan. (Designated in Form 11-K for
the year ended December 31, 1995, File No. 1 -3526,
as Exhibit C.)
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5(a) - Opinion of Troutman Sanders LLP, counsel to
SOUTHERN.
5(b) - Internal Revenue Service determination letters
dated March 5, 1996 and June 10, 1996. (Designated in
Form 11-K for the year ended December 31, 1995, File
No. 1-3526, as Exhibit B.)
23(a) - The consent of Troutman Sanders LLP is contained in
Exhibit 5(a).
23(b) - Consent of Arthur Andersen LLP.
24 - Powers of Attorney and resolution.
Exhibits listed above which have heretofore been filed with the
Securities and Exchange Commission and which were designated as noted above are
hereby incorporated herein by reference and made a part hereof with the same
effect as if filed herewith.
Item 9. Undertakings.
(a) Rule 415 offerings. The undersigned registrant hereby
undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
information required to be included in a
post-effective amendment by those paragraphs
is contained in periodic reports filed by
the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) Filings incorporating subsequent Exchange Act documents by
reference. The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and each filing of the Plan's annual
report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Filing of registration statement on Form S-8. Insofar as
indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on January 14, 1998.
THE SOUTHERN COMPANY
By: A. W. Dahlberg
Chairman of the Board, President and
Chief Executive Officer
By: /s/Wayne Boston
Wayne Boston
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
A. W. Dahlberg Director, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
W. L. Westbrook Financial Vice President, Chief Financial
Officer and Treasurer
(Principal Financial and Accounting Officer)
John C. Adams )
A. D. Correll )
Paul J. DeNicola )
Jack Edwards )
H. Allen Franklin )
L.G. Hardman III ) Directors
Elmer B. Harris )
William A. Parker, Jr. )
William J. Rushton, III )
Gerald J. St. Pe )
Herbert Stockham )
By: /s/Wayne Boston January 14, 1998
Wayne Boston
Attorney-in-Fact
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<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on January 14, 1998.
THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
By: /s/C. Alan Martin
II-7
Exhibit 4(e)
FIFTH AMENDMENT TO THE
SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
WHEREAS, the Employee Savings Plan Committee ("Committee") heretofore
adopted the amendment and restatement of The Southern Company Employee Savings
Plan ("Plan"), effective as of July 3, 1995, which was amended by the Board of
Directors of Southern Company Services, Inc. ("Company") effective as of August
1, 1995 and by the Committee to be effective as provided in the Second, Third
and Fourth Amendments; and
WHEREAS, the Committee desires again to amend the Plan in order to
allow rollovers to the Plan, to allow certain employees to waive their rights to
withdrawals or loans under the Plan to meet the requirements for income tax
exclusion of Elective Employer and Employer Matching Contributions in the United
Kingdom, and to make certain other clarifying and design changes; and
WHEREAS, the Committee is authorized pursuant to Section 15.1 of the
Plan to amend the Plan at any time, provided that the amendment does not involve
a substantial increase in cost to any Employing Company or is necessary or
desirable to comply with the laws and regulations applicable to the Plan;
NOW, THEREFORE, the Committee hereby amends the Plan as follows:
I.
Effective as of the date hereof, Section 2.7 shall be amended by
deleting such Section in its entirety and substituting a new Section 2.7 as
follows:
2.7 "Aggregation Group" shall mean either a Required
Aggregation Group or a Permissive Aggregation Group.
II.
Effective as of January 1, 1996, Section 2.34 shall be amended by
deleting such Section in its entirety and substituting a new Section 2.34 as
follows:
2.34 "Enrollment Date" shall mean the first day of each
payroll period.
III.
Effective as of April 1, 1997, Section 2.49 shall be amended by
deleting such Section in its entirety and substituting a new Section 2.49 as
follows:
2.49 "Participant" shall mean (a) an Eligible Employee who
has elected to participate in the Plan as provided in Article II and
whose participation in the Plan at the time of reference has not been
terminated as provided in the Plan, (b) an Employee or former Employee
who has ceased to be a Participant under (a) above, but for whom an
Account is maintained under the Plan, and (c) an Eligible Employee who
has made a Rollover Contribution to this Plan to the extent that the
provisions of the Plan apply to such Rollover Contributions of the
Eligible Employee.
IV.
Effective as of the date hereof, a new Section 2.49A shall be added to
the Plan as follows:
2.49A "Permissive Aggregation Group" shall mean a group of
plans consisting of the Required Aggregation Group and, at the election
of the Affiliated Employers, such other plan or plans not required to
be included in the Required Aggregation Group, provided the resulting
group, taken as a whole, would continue to satisfy the provisions of
Code Section 401(a)(4) or 410.
V.
Effective as of the date hereof, a new Section 2.52A shall be added to
the Plan as follows:
2.52A "Required Aggregation Group" shall mean those plans that
are required to be aggregated as determined under this Section 2.52A.
In determining a Required Aggregation Group hereunder, each plan of the
Affiliated Employers in which a Key Employee is a participant and each
other plan of the Affiliated Employers which enables any plan in which
a Key Employee participates to meet the requirements of Code Section
401(a)(4) or 410 will be required to be aggregated.
VI.
Effective as of April 1, 1997, Article II of the Plan shall be amended
by adding a new Section 2.52A as follows:
2.52A "Rollover Contributions" shall mean that portion of an
eligible rollover distribution (as defined in Code Section 402(c)(4))
that an Eligible Employee elects to contribute to this Plan in
accordance with the requirements of Section 4.11.
VII.
Effective as of April 1, 1997, Article 4 shall be amended by adding a
new Section 4.11 as follows:
4.11 Rollovers from Other Plans. An Eligible Employee who is
hired or rehired on or after April 1, 1997 and has received a
distribution of his interest in a retirement plan of a former employer
under circumstances meeting the requirements of Section 402(c)(4) of
the Code relating to eligible rollover distributions from qualified
trusts may elect to deposit all or any portion (as designated by such
Employee) of the amount of such distribution as a Rollover Contribution
to this Plan. A Rollover Contribution may be made only within 60 days
following the date the Employee receives the distribution from the plan
of his former employer (or within such additional period as may be
provided under Section 408 of the Code if the Eligible Employee shall
have made a timely deposit of the distribution in an individual
retirement account) and within 12 months of the date of his employment
or reemployment with an Employing Company. In addition to the
foregoing, an Eligible Employee described in Section 3.5 may elect to
make a Rollover Contribution to this Plan without regard to his date of
employment, provided that such Rollover Contribution is deposited with
this Plan within the period beginning April 1, 1997 and ending June 30,
1997 and which otherwise satisfies the requirements of this Section
4.11.
The Committee shall establish rules and procedures to
implement this Section 4.11, including without limitation, such
procedures as may be appropriate to permit the Committee to verify the
tax qualified status of the plan of the former employer and compliance
with any applicable provisions of the Code relating to such
contributions. The amount contributed to the Trustee pursuant to this
Section 4.11 shall be placed in the Eligible Employee's Rollover
Contribution subaccount for the benefit of the Eligible Employee
pursuant to Section 9.1. The Eligible Employee shall have a fully
vested interest in the balance of his Rollover Contribution subaccount
at all times and such Rollover Contribution subaccount shall share in
the earnings, gains, and losses of the Trust Fund as set forth in
Article IX of the Plan. An Employee shall be entitled to a distribution
of his Rollover Contribution subaccount pursuant to the applicable
provisions of Articles XI and XII hereof.
VIII.
Effective as of April 1, 1997, Article IX shall be amended by deleting
Section 9.1(a) in its entirety and adding a new Section 9.1(a) thereto as
follows:
9.1 Establishment of Account.
(a) An Account shall be established for each Participant. In
addition, subaccounts shall be established for each Participant to
reflect all Elective Employer Contributions, Voluntary Participant
Contributions, Employer Matching Contributions, Rollover Contributions,
and rollover contributions from the SEPCO Plan (and the earnings and/or
losses on each subaccount). Each Participant will be furnished a
statement of his Account at least annually and upon any distribution.
IX.
Effective as of April 1, 1997, Section 11.1 of the Plan shall be
amended by deleting such section in its entirety and substituting a new Section
11.1 as follows:
11.1 Withdrawals by Participants.
(a) Subject to the provisions of Article XII, this Section
11.1, and Sections 11.2 through 11.6, a Participant may make
withdrawals from his Account effective as of any Valuation Date in the
order of priority listed below:
(1) All or a portion of the value of his Account
attributable to Voluntary Participant Contributions (not
including any earnings or appreciation thereon) made prior to
January 1, 1987;
(2) All amounts described above, plus all or a
portion of the value of his Account attributable to Voluntary
Participant Contributions, plus a ratable portion of the
earnings and/or appreciation on Voluntary Participant
Contributions;
(3) All amounts described above, plus all or a
portion of the value of his Account attributable to Rollover
Contributions (including earnings and appreciation thereon);
(4) All amounts described above, plus up to fifty
percent (50%) of the value of his Account attributable to
Employer Matching Contributions (including earnings and
appreciation thereon) allocated to his Account; provided,
however, that said Participant shall have participated in the
Plan for not less than sixty (60) months at the time of the
withdrawal;
(5)(A) For Participants who have not attained age 59
1/2 or separated from service with the Affiliated Employers
(within the meaning of Code Section 401(k)(2)(B)(i)(I)), all
amounts described above, plus all or a portion of the value of
his Account attributable to Elective Employer Contributions
(not including any earnings or appreciation thereon for Plan
Years beginning after December 31, 1988); and
(B) For Participants who have attained age 59 1/2 or
separated from service with the Affiliated Employers (within
the meaning of Code Section 401(k)(2)(B)(i)(I)), all amounts
described above, plus all or a portion of the value of his
Account attributable to any earnings or appreciation on
Elective Employer Contributions.
(b) Notwithstanding the foregoing, withdrawals from a
Participant's SEPCO Transferred Account shall be made subject to the
provisions of Article XVIII.
X.
Effective as of April 1, 1997, Section 11.6(a) of the Plan shall be
amended by deleting the reference therein to "Section 11.1(a)(4)(A)" and
inserting a reference to "Section 11.1(a)(5)(A)".
XI.
Effective as of April 1, 1997, Section 11.6(e) of the Plan shall be
amended by deleting the reference therein to "Section 11.1(a)(4)(B)" and
inserting a reference to "Section 11.1(a)(5)(A)".
XII.
Effective as of January 1, 1996, Article XI shall be amended by adding
a new Section 11.8 as follows:
11.8 Special Waiver for Participants Employed in the United Kingdom.
A Participant shall be entitled to sign a waiver of his right
to make withdrawals or loans from his Account under the provisions of
this Article XI with respect to the Elective Employer Contributions and
Employer Matching Contributions credited to his Account to the extent
necessary to ensure that such contributions are not taxable in the
United Kingdom. The purpose of such waiver is to meet the requirements
of the Department of Inland Treasury of the United Kingdom for
excluding such Elective Employer and Employer Matching Contributions
from taxable income in the United Kingdom. Such waiver shall be made on
a form prescribed by the Committee from time to time in accordance with
the requirements of the Department of Inland Treasury of the United
Kingdom.
XIII.
Effective as of January 1, 1996, Section 14.3 shall be amended by
deleting the first sentence thereof and inserting a new sentence as follows:
Before each annual or special meeting of shareholders of The
Southern Company, there shall be sent to each Participant a copy of the
proxy soliciting material for the meeting, together with a form
requesting instructions to the Trustee on how to vote the shares of
Common Stock credited to such Participant's Account as of the record
date of the Common Stock.
XIV.
Except as amended herein by this Fifth Amendment, the Plan shall remain
in full force and effect as amended and restated by the Company prior to the
adoption of this Fifth Amendment.
IN WITNESS WHEREOF, Southern Company Services, Inc. through its duly
authorized officers has adopted this Fifth Amendment to The Southern Company
Employee Savings Plan this ____ day of _________________________, 1997 to be
effective as stated herein.
SOUTHERN COMPANY SERVICES, INC.
By:
Its:
ATTEST:
By:
Its:
<PAGE>
SIXTH AMENDMENT TO THE
SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
WHEREAS, the Employee Savings Plan Committee ("Committee") heretofore
adopted the amendment and restatement of The Southern Company Employee Savings
Plan ("Plan"), effective as of July 3, 1995, which was amended by the Board of
Directors of Southern Company Services, Inc. ("Company") effective as of August
1, 1995 and by the Committee to be effective as provided in the Second, Third,
Fourth and Fifth Amendments; and
WHEREAS, the Committee desires again to amend the Plan to allow certain
Participants to diversify a portion of their Employer Matching Contribution
subaccount that is invested in Southern Company stock and to recognize prior
service with Commonwealth Edison of Indiana for those transferred employees who
become an Employee of an Employing Company;
WHEREAS, the Committee is authorized pursuant to Section 15.1 of the
Plan to amend the Plan at any time, provided that the amendment does not involve
a substantial increase in cost to any Employing Company or is necessary or
desirable to comply with the laws and regulations applicable to the Plan;
NOW, THEREFORE, the Committee hereby amends the Plan as follows:
I.
Effective as of the date hereof, Article III shall be amended by adding
a new Section 3.6 as follows:
3.6 Former Commonwealth Edison of Indiana Employees. Effective
January 1, 1998, notwithstanding any other provision of the Plan to the
contrary, with respect to a former employee of Commonwealth Edison of
Indiana ("ComEd") who was employed by Southern Energy, Inc. as set
forth on a schedule of employees acknowledged by the Committee shall be
credited with a Year of Service as of December 31, 1997, and may elect
to become a Participant as of any Enrollment Date commencing on or
after January 1, 1998.
II.
Effective as of January 1, 1998, Section 5.2 of the Plan shall be
amended by deleting such section in its entirety and substituting a new Section
5.2 as follows:
5.2 Investment of Employer Matching Contributions. Employer
Matching Contributions shall be invested entirely in the Company Stock
Fund, as described in Article VIII, except as follows:
(a) Any Participant whose employment with the
Affiliated Employers is terminated as a result of his
retirement pursuant to the defined benefit pension plan of an
Affiliated Employer may elect to invest the amount credited to
his Employer Matching Contribution subaccount in any of the
Investment Funds under this Plan as provided in Article VIII;
and
(b) Any Participant may elect at any time on or after
the fifth anniversary of the Enrollment Date on which he first
became a Participant in this Plan to invest a portion of the
amount credited to his Employer Matching Contribution
subaccount in any of the Investment Funds under this Plan as
provided in Article VIII, except that the amount subject to
such election may not exceed fifty percent (50%) of the amount
of Common Stock credited to his Employer Matching Contribution
subaccount at the time the election is made.
III.
Effective as of January 1, 1998, Section 8.4 shall be amended by
deleting such section in its entirety and substituting a new Section 8.4, as
follows:
8.4 Transfer of Assets between Funds. A Participant may
direct in accordance with the provisions of this Section 8.4 and such
procedures established by the Committee that all of his interest in an
Investment Fund or Funds attributable to amounts in his Account (other
than Employer Matching Contributions required to be invested in the
Company Stock Fund under Section 5.2 of the Plan) or any portion of
such amount (expressed in number of shares, whole dollar amounts, or
one-percent (1%) increments) to the credit of his Account be
transferred and invested by the Trustee as of such date in any other
Investment Fund as designated by the Participant. Such direction shall
be effective as soon as practicable after it is made.
IV.
Except as amended herein by this Sixth Amendment, the Plan shall remain
in full force and effect as amended and restated by the Company prior to the
adoption of this Sixth Amendment.
<PAGE>
IN WITNESS WHEREOF, Southern Company Services, Inc. through its duly
authorized officers has adopted this Sixth Amendment to The Southern Company
Employee Savings Plan this ____ day of _________________________, 1997 to be
effective as stated herein.
SOUTHERN COMPANY
SERVICES, INC.
By:_________________________________
Its:__________________________________
ATTEST:
By: _________________________________
Its:__________________________________
Exhbit 5(a)
Troutman Sanders LLP
600 Peachtree Street
Atlanta, GA 30308
404-885-3000
January 14, 1998
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the above-captioned registration statement proposed to
be filed by The Southern Company ("Southern") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the registration of
additional shares of its common stock, par value $5 per share (the "Stock"), for
issuance pursuant to The Southern Company Employee Savings Plan (the "Plan"). We
have also examined certified copies of Southern's Certificate of Incorporation,
as amended, and of its by-laws and are familiar with all proceedings relating to
the issuance and sale of the Stock. We are of the opinion that:
(a) Southern is a corporation duly organized and existing
under the laws of the State of Delaware, is domesticated under the laws of the
State of Georgia and is qualified to do business as a foreign corporation under
the laws of the State of Alabama.
(b) Upon compliance with the relevant provisions of the
Securities Act of 1933, as amended, and the Public Utility Holding Company Act
of 1935, as amended, and upon compliance with the securities or "Blue Sky" laws
of any jurisdiction applicable thereto, Southern may legally issue and sell the
Stock without obtaining the consent or approval of any other governmental
authority.
(c) When the necessary consents or approvals as referred to in
paragraph (b) hereinabove have been obtained, and when certificates for the
Stock have been executed by Southern, countersigned and registered by the
transfer agent and registrar and delivered in accordance with the Plan, the
Stock will be valid and legally issued, fully paid and non-assessable shares of
Southern, and the holders thereof will be entitled to the rights and privileges
appertaining thereto as set forth in Southern's Certificate of Incorporation, as
amended.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
Exhibit 23(b)
Arthur Andersen LLP
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8, related to The Southern
Company Employee Savings Plan, of our reports dated February 12, 1997 on the
financial statements of The Southern Company and the related financial statement
schedules included in The Southern Company's Form 10-K for the year ended
December 31, 1996, our report dated May 30, 1997, included in The Southern
Company Employee Savings Plan's Form 11-K for the year ended December 31, 1996
and to all references to our Firm included in this registration statement.
/s/Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
January 8, 1998
Exhibit 24
July 21, 1997
A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm, and Wayne Boston
Dear Sirs:
The Southern Company proposes to file with the Securities and Exchange
Commission a registration statement under the Securities Act of 1933, as
amended, with respect to the issuance and sale of additional shares of common
stock of this Company, pursuant to and in accordance with the Employee Savings
Plan, in an amount of up to 10 million additional shares.
The Southern Company and the undersigned directors and officers of said
Company, individually as a director and/or as an officer of the Company, hereby
make, constitute and appoint each of you our true and lawful Attorney for each
of us and in each of our names, places and steads to sign and cause to be filed
with the Securities and Exchange Commission in connection with the foregoing
such registration statement and appropriate amendment or amendments (including
post-effective amendments) thereto.
Yours very truly,
THE SOUTHERN COMPANY
By_/s/A. W. Dahlberg
A. W. Dahlberg
Chairman, President and
Chief Executive Officer
<PAGE>
- 2 -
/s/John C. Adams /s/William A. Parker
John C. Adams William A. Parker, Jr.
/s/A. D. Correll William J. Rushton, III
A. D. Correll William J. Rushton, III
/s/A. W. Dahlberg _____________________________
A. W. Dahlberg Gloria M. Shatto
/s/Paul J. DeNicola /s/Gerald J. St. Pe'
Paul J. DeNicola Gerald J. St. Pe'
/s/Jack Edwards /s/Herbert Stockham
Jack Edwards Herbert Stockham
/s/H. Allen Franklin /s/W. L. Westbrook
H. Allen Franklin W. L. Westbrook
_____________________________ /s/Tommy Chisholm
Bruce S. Gordon Tommy Chisholm
/s/L.G. Hardman, III /s/W. Dean Hudson
L. G. Hardman III W. Dean Hudson
/s/Elmer B. Harris
Elmer B. Harris
<PAGE>
Extract from minutes of meeting of the board of directors of The Southern
Company.
- - - - - - - - - - - -
RESOLVED: That for the purpose of signing the registration
statement or statements under the Securities Act of 1933, as amended,
to be filed with the Securities and Exchange Commission with respect to
the issuance and sale by the Company of additional shares of its common
stock under the Employee Savings Plan and of remedying any deficiencies
with respect thereto by appropriate amendment or amendments (including
post-effective amendments), the Company, the members of its board of
directors, and its officers are authorized to give their several powers
of attorney to A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm, and
Wayne Boston.
- - - - - - - - - - - -
The undersigned officer of The Southern Company does hereby certify
that the foregoing is a true and correct copy of a resolution duly and regularly
adopted at a meeting of the board of directors of The Southern Company, duly
held on July 21, 1997, at which a quorum was in attendance and voting
throughout, and that said resolution has not since been rescinded but is still
in full force and effect.
Dated January 14, 1997 THE SOUTHERN COMPANY
By_/s/Tommy Chisholm
Tommy Chisholm
Secretary
