THE SOUTHERN COMPANY
UNDERWRITING AGREEMENT
For Purchase of 25,000,000 Shares
of Common Stock of the Company
December 6, 2000
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
The Southern Company, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
25,000,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 3,750,000 additional shares (the "Optional Shares") of Common Stock, par
value $5 per share ("Stock"), of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof
being collectively called the "Shares"). Goldman, Sachs & Co. is the
representative (the "Representative") of the Underwriters.
1. Registration Statement and Prospectus: The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Act"), a
registration statement on Form S-3 (Registration Nos. 333-64871, 333-64871-01,
333-64871-02, 333-64871-03 and 333-64871-04), as amended by post-effective
amendment no. 1 (the "Amendment") under the Act, in respect of the Stock and
certain other of its securities (the "Registered Securities"). Such registration
statement, as amended at the time at which the Amendment became effective,
including the exhibits thereto and all documents incorporated by reference
therein pursuant to Item 12 of Form S-3 at the time the Amendment became
effective, being hereinafter called the "Registration Statement"; the prospectus
relating to the Registered Securities, in the form in which it was included in
the Registration Statement at the time the Amendment became effective, being
hereinafter called the "Prospectus"; any reference herein to the Prospectus as
supplemented by any preliminary prospectus supplement relating to the Shares
(the "Preliminary Supplemented 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 Act, as of the date of such Preliminary
Supplemented Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Supplemented Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after the
date of such Preliminary Supplemented 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 such Preliminary Supplemented Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
<PAGE>
after the effective date of the Amendment that is incorporated by reference in
the Registration Statement; and the Prospectus as amended or supplemented in
final form by a prospectus supplement relating to the Shares in the form in
which it is filed with the Commission, pursuant to Rule 424(b) under the Act,
including any documents incorporated by reference therein as of the date of such
filing, being hereinafter called the "Final Supplemented Prospectus".
2. Purchase and Sale: Subject to the terms and conditions herein set forth,
(a) the Company agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price per share of $27.58, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in this Section 2, that portion of the number of Optional Shares as to
which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction, the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 3,750,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the purpose of covering sales of shares in
excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless you and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
3. Offer of Shares: The Company has been advised by you that the
Underwriters propose to make an offering of the Shares on the
terms and subject to the conditions and in the manner set forth in the Final
Supplemented Prospectus.
4. Payment and Delivery:
(a) The Shares to be purchased by each Underwriter hereunder, in
definitive or electronic form, and in such authorized
denominations and registered in such name as Goldman, Sachs & Co. may
request upon at least forty-eight hours' prior notice to the Company,
shall be delivered by or on behalf of the Company to Goldman, Sachs &
Co., through the facilities of The Depository Trust Company ("DTC"),
for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the
Company to Goldman, Sachs & Co. at least forty-eight hours in advance.
The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours
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prior to the Time of Delivery (as defined below) with respect thereto
at the office of Goldman, Sachs & Co., 85 Broad Street, New York, New
York 10004 (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30
a.m., New York, New York time, on December 12, 2000 or such other
time and date as Goldman, Sachs & Co. and the Company may agree upon
in writing, and, with respect to the Optional Shares, 9:30 a.m., New
York time, on the date specified by Goldman, Sachs & Co. in the
written notice given by Goldman, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and
date as Goldman, Sachs & Co. and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares
is herein called the "First Time of Delivery", such time and date for
delivery of the Optional Shares, if not the First Time of Delivery,
is herein called the "Second Time of Delivery", and each such time
and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 5(b) hereof, including the
cross receipt for the Shares and any additional documents requested by
the Underwriters pursuant to Section 5(b)(iv) hereof, will be
delivered at the offices of Troutman Sanders LLP, 600 Peachtree
Street, N.E., Suite 5200, Atlanta, Georgia 30308 (the "Closing
Location"), and the Shares will be delivered at the Designated Office,
all at such Time of Delivery. A meeting will be held at the Closing
Location at 1:00 p.m., Atlanta, Georgia time, on the Business Day
immediately preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto.
For the purposes of this Section 4, "Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York, New York or Atlanta, Georgia
are generally authorized or obligated by law or executive order to
close.
5. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters hereunder are subject to the accuracy in all material respects of
the representations and warranties on the part of the Company herein contained
at each Time of Delivery, and to the following other conditions:
(a) The Final Supplemented Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 6(a)
hereof; and no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall be pending
before, or to the knowledge of the Company, threatened by, the
Commission.
(b) That, at such Time of Delivery, the Underwriters shall be
furnished the following opinions and letter, with such changes
therein as may be agreed upon by the Company and Goldman,
Sachs & Co.:
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(i) Opinion of Troutman Sanders LLP, counsel to the Company,
substantially in the form attached hereto as Exhibit 1.
(ii) Opinion of Dewey Ballantine LLP, counsel to the Underwriters,
substantially in the form attached hereto as Exhibit 2.
(iii) A letter dated as of such Time of Delivery from Arthur Andersen
LLP, substantially to the effect attached hereto as Exhibit 3.
(iv) Such documents relating to the Company's corporate existence and
its authorization and execution of this Agreement, as Goldman,
Sachs & Co. may reasonably request.
(c) That, prior to such Time of Delivery, there shall have been no
material adverse change in the business, properties or
financial condition of the Company from that set forth in or
contemplated by the Final Supplemented Prospectus, and that
the Company shall, at the Time of Delivery, have delivered to
the Underwriters a certificate to such effect of an executive
officer of the Company.
(d) The Shares to be sold at such Time of Delivery shall have been
duly listed for trading on the New York Stock Exchange subject
to official notice of issuance.
(e) 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 Goldman, Sachs & Co., 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).
(f) That no amendment or supplement to the Registration Statement,
the Prospectus or the Final Supplemented 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 LLP 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 Shares.
(g) At such time of delivery, each of the Company's officers and
each of its directors and each executive officer of Alabama
Power Company, Georgia Power Company, Gulf Power Company,
Mississippi Power Company and Savannah Electric and Power
Company shall have entered into an agreement substantially in
the form of Exhibit 4 hereto.
<PAGE>
(h) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or prior to the
Time of Delivery by the terms hereof.
6. Certain Covenants of the Company: In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To prepare the Final Supplemented Prospectus and to file such
Final Supplemented Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement; to furnish to Goldman, Sachs & Co. one manually signed
copy of the Registration Statement and all amendments thereto; to
advise Goldman, Sachs & Co. promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Supplemented Prospectus or Final Supplemented Prospectus, of the
suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Supplemented
Prospectus, the Prospectus or the Final Supplemented Prospectus
or suspending any such qualification, promptly to use reasonable
efforts to obtain the withdrawal of such order.
The Company will furnish to the Underwriters, without
charge, as many copies of the Prospectus, any Preliminary
Supplemented Prospectus and the Final Supplemented Prospectus
(as supplemented or amended if the Company shall have made any
supplements or amendments thereto) as Goldman, Sachs & Co. may
reasonably request.
(b) 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 Shares 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 Final Supplemented Prospectus in order to make the Final
Supplemented 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
Final Supplemented Prospectus or to file under the Exchange Act
any document incorporated by reference in the Final Supplemented
Prospectus in order to comply with the Act or the Exchange Act,
the Company forthwith will (i) notify the Underwriters to suspend
solicitation of purchases of the Shares 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 Final Supplemented Prospectus that
will supplement or amend the Final Supplemented 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 Final Supplemented Prospectus is
<PAGE>
delivered, not misleading or that will affect any other necessary
compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Shares 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 Final Supplemented Prospectus,
complying with Section 10(a) of the 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 Goldman, Sachs
& Co. and Dewey Ballantine LLP.
(c) During such time as the Underwriters are required to deliver a
Final Supplemented Prospectus pursuant to Section 5 of the Act,
he Company will prepare and file with the Commission the
ocuments required to be filed pursuant to Sections 13 and 14 of
he Exchange Act and the rules and regulations of the Commission
hereunder. (d) To make generally available to its security
olders as soon as practicable, but in any event not later than
ighteen months after the effective date of the Registration
tatement (as defined in Rule 158(c) under the Act), an earnings
tatement of the Company and its subsidiaries (which need not be
udited) complying with Section 11(a) of the Act and the rules
and regulations thereunder (including, at the option of the
ompany, Rule 158).
(e) The Company will cooperate with the Underwriters to qualify
the Shares for offer and sale under the securities or "blue
sky" laws of such states and other jurisdictions as Goldman,
Sachs & Co. may reasonably request and to pay filing fees,
reasonable attorneys' fees and disbursements in connection
therewith in an amount not exceeding $3,500 in the aggregate
(including filing fees and disbursements paid or incurred
prior to the date this Agreement becomes effective); provided,
however, that the Company shall not be required to qualify as
a foreign corporation or to file a consent to service of
process or to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome.
(f) The Company will pay all costs and expenses incident to the
performance of the obligations of the Company under this
Agreement, including (i) the preparation of the Registration
Statement, the Prospectus, any Preliminary Supplemented
Prospectus, the Final Supplemented Prospectus (including
financial statements) and any amendments or supplements thereto,
(ii) the preparation and printing of Share certificates, (iii)
the issuance and delivery of the Shares to the Underwriters
(other than transfer taxes) and (iv) the furnishing of the
opinions, letter and certificate referred to in Section 5(b)
hereof (other than the opinion referred to in Section 5(b)(ii)
hereof). It is understood that the Underwriters shall be solely
responsible to pay all fees and expenses of counsel to the
Underwriters, and that the Company shall not be liable to
reimburse the Underwriters for such fees and expenses.
<PAGE>
(g) If the Underwriters shall not take up and pay for the Shares
due to the failure of the Company to comply with any of the
conditions specified in Section 5 hereof, the Company shall
reimburse the Underwriters for all of their reasonable
out-of-pocket accountable expenses, in an amount not exceeding
a total of $100,000, incurred in connection with the financing
contemplated by this Agreement.
(h) During a period of 90 days from the date of the Final
Supplemented Prospectus, the Company will not, without the
prior written consent of Goldman, Sachs & Co., offer or sell
(or grant any option or warrant to offer or sell) any Stock or
any security convertible into Stock; provided, however, that
the foregoing shall not apply to any securities or options to
purchase any securities granted or sold pursuant to any
employee or director compensation plans or employee or
shareholder investment plans in effect on the date of this
Agreement.
7. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the Underwriters that:
(i) The Registration Statement and the Prospectus conform, and the
Final Supplemented Prospectus and any further amendments or
supplements to the Registration Statement, the Prospectus or the
Final Supplemented Prospectus will conform, in all material
respects to the requirements of the Act and the Exchange Act and
do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus, the Final
Supplemented Prospectus and any amendment or supplement thereto,
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; provided, however, that
this representation and warranty shall not apply to (A) that part
of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended, or (B) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through the Representative expressly
for use therein.
(ii) The documents incorporated by reference in the Registration
Statement, the Prospectus, the Preliminary Supplemented
Prospectus and the Final Supplemented Prospectus, when they 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, the Preliminary
Supplemented Prospectus or the Final Supplemented 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
<PAGE>
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 the Company makes no warranty or representation to
any Underwriter with respect to any statements or omissions made
in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through you expressly
for use in the Prospectus, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus.
(iii)The Company is a corporation duly organized and validly existing
under the laws of Delaware and has all requisite corporate power
and authority to execute, deliver and perform its material
obligations under this Agreement.
(iv) The Shares, when issued and delivered by the Company
pursuant to this Agreement against payment of the
consideration set forth in this Agreement, will be
duly authorized, validly issued, fully paid and
nonassessable and will not be subject to any
preemptive or similar right under (i) the statutes,
judicial and administrative decisions, and the rules
and regulations of the governmental agencies of the
State of Delaware, (ii) the Company's Certificate of
Incorporation or By-laws or (iii) any instrument,
document, contract or other agreement filed as an
exhibit to the Registration Statement.
(v) This Agreement has been duly authorized, executed and delivered
by the Company.
(vi) The consummation of the transactions contemplated herein and
compliance by the Company with its obligations hereunder will not
result in a violation of its Certificate of Incorporation or
By-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which
it or any of its properties may be bound that would have a
material adverse effect on the business, financial condition,
results of operations of the Company and its subsidiaries, taken
as a whole.
(b) The Company agrees 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 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 Act or otherwise, and to reimburse the Underwriters and such
controlling person or persons, if any, for any legal or other
<PAGE>
expenses incurred by them in connection with investigating or
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 Prospectus, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus, as amended or
supplemented, or arise out of or are based upon any omission or
alleged omission to state therein 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 insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such
untrue statement or omission or alleged untrue statement or
omission which was made in the Prospectus, the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus, as
amended or supplemented, 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 Prospectus,
the Preliminary Supplemented Prospectus and the Final
Supplemented Prospectus, if the Company 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 Shares to any
person if a copy of the Prospectus, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus, as the same may
then be amended or supplemented, after having been supplied in
the quantities requested by the Representative from the Company,
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 if the Prospectus, the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus (as so amended or supplemented) would have corrected
the defect giving rise to such loss, liability, claim or damage.
The Company's indemnity agreement contained in this
Section 7(b), and its covenants, warranties and
representations contained in this Agreement, shall remain in
full force and effect regardless of any investigation made by
or on behalf of any Underwriter or controlling person, and
shall survive the delivery of and payment for the Shares
hereunder.
8. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents to the Company and
its directors and officers that the information furnished in
writing to the Company by, or through the Representative on
behalf of, such Underwriter for use in the Prospectus, the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus, or such documents as amended or supplemented, does
not contain an untrue statement of a material fact and does
not omit to state a material fact in connection with such
information required to be stated therein or necessary to make
such information not misleading.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and officers, and each
person, if any, who controls the Company within the meaning of
<PAGE>
Section 15 of the Act, to the same extent and upon the same
terms as the indemnity agreement of the Company set forth in
Section 7(b) hereof, but only with respect to untrue
statements or omissions or alleged untrue statements or
omissions in the Prospectus, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus or such
documents as amended or supplemented, made in reliance upon
and in conformity with information furnished in writing to the
Company by, or through the Representative on behalf of, such
Underwriter for use therein.
The indemnity agreement on the part of each
Underwriter contained in this Section 8(b), and the warranties
and representations of such Underwriter contained in this
Agreement, shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or other
Underwriter or controlling person, and shall survive the
delivery of and payment for the Shares hereunder.
9. Procedures Relating to Indemnification: Promptly after receipt by
a party indemnified under Section 7 or 8 above of written notice
of any loss, claim, damage or liability in respect from which
indemnity may be sought by it hereunder, such indemnified party
will, if a claim is to be made against an indemnifying party,
notify the indemnifying party thereof in writing, but the
omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability (otherwise than under
Section 7 or 8 hereof, as the case may be) which it may have to
the indemnified party. Thereafter, the indemnified party and the
indemnifying party shall consult, to the extent appropriate, with
a view to minimizing the cost to the indemnifying party of its
obligations hereunder. In case any indemnified party receives
written notice of any loss, claim, damage or liability in respect
of which indemnity may be sought by it hereunder and it notifies
the indemnifying party thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party; provided,
however, that if the parties against which any loss, claim,
damage or liability arises include both the indemnified party and
the indemnifying party and the indemnified party shall have
reasonably concluded that the defenses available to it create a
conflict of interest for the counsel selected by the indemnifying
party under the code of professional responsibility applicable to
such counsel, the indemnified party shall have the right to
select one separate counsel to assume such legal defenses and
otherwise to participate in the defenses of such loss, claim,
damage or liability on behalf of the indemnified party. Upon
receipt by the indemnified party of notice from the indemnifying
party of its election so to assume the defense of such loss,
claim, damage or liability and approval by the indemnified party
of counsel, the indemnifying party shall not be liable to the
indemnified party under Section 7 or 8 hereof, as the case may
be, for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance
with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed and continued to
employ counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party shall have authorized in writing the employment of separate
counsel for the indemnified party at the expense of the
indemnifying party. No indemnifying party shall, without prior
<PAGE>
written consent of the indemnified party, effect any settlement
of or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action in respect of which
the indemnified party is or is entitled or subject to be a party
and the indemnified party is entitled to indemnity hereunder
unless such settlement, compromise or judgment includes an
unconditional release of the indemnified party from all liability
on any claims that are the subject matter of such action and 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. No indemnifying party shall be liable for any
settlement, compromise or consent to the entry of any order
adjudicating or otherwise disposing of any loss, claim, damage or
liability effected without its written consent.
If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) that would
otherwise have been indemnified under the terms of such indemnity, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required above, then
each indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equity considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total compensation received by the Underwriters in respect of
underwriting discounts and commissions as set forth in the table on the cover
page of the Final Supplemented Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this section were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this section. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this section
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this section, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute are
several in proportion to their respective underwriting obligations and not
joint.
<PAGE>
10. Substitution of Underwriters:
(a) If any Underwriter under this Agreement shall fail or refuse
(whether for some reason sufficient to justify, in accordance
with the terms hereof, the termination of its obligations to
purchase or otherwise) to purchase the Shares which it has agreed
to purchase, the Company shall immediately notify the remaining
Underwriters and the remaining Underwriters may, within 24 hours
of receipt of such notice, procure some other responsible party
or parties satisfactory to the Company, who may include one or
more of the remaining Underwriters, to purchase or agree to
purchase such Shares on the terms herein set forth; and, if the
remaining Underwriters shall fail to procure a satisfactory party
or parties to purchase or agree to purchase such Shares on such
terms within such period after the receipt of such notice, then
the Company shall be entitled to an additional period of 24 hours
within which to procure another party or parties to purchase or
agree to purchase such Shares on the terms herein set forth. In
any such case, either the remaining Underwriters or the Company
shall have the right to postpone the Time of Delivery for a
period not to exceed five business days from the date set forth
in Section 4 hereof, in order that the necessary changes to the
Prospectus and any other documents and arrangements may be
effected. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like
effect as if such person had originally been a party to this
Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed
one-tenth of the aggregate number of all the Shares to be
purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase
the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Shares which such Underwriter agreed to
purchase hereunder) of the Shares of such defaulting Underwriter
or Underwriters for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-tenth
of the aggregate number of all the Shares to be purchased at such
Time of Delivery, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase
and of the Company to sell the Optional Shares) shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6
hereof and the indemnity agreements in Sections 7 and 8 hereof;
but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
<PAGE>
11. Termination of Agreement: This Agreement may be terminated at any
time prior to the Time of Delivery by the Representative, if,
after this Agreement becomes effective, (i) trading in securities
on the New York Stock Exchange shall have been generally
suspended; (ii) trading in the Company's securities on the New
York Stock Exchange shall have been suspended; (iii) a general
banking moratorium shall have been declared by federal or New
York State authorities; or (iv) there shall have occurred any
declaration of war by the United States Congress or any other
substantial national or international emergency affecting the
United States, in any such case provided for in clauses (i)
through (iv) with the result that, in the reasonable judgment of
the Representative, the marketability of the Shares shall have
been materially impaired.
If the Representative elects to terminate this Agreement as provided in
this Section 11, the Company shall be notified promptly by Goldman, Sachs & Co.
by telephone, confirmed in writing. If this Agreement shall not be carried out
by any Underwriter for any reason permitted hereunder, or if the sale of the
Shares to the Underwriters as herein contemplated shall not be carried out
because the Company is not able to comply with the terms hereof, the Company
shall not be under any obligation under this Agreement and shall not be liable
to any Underwriter or to any member of any selling group for the loss of
anticipated profits from the transactions contemplated by this Agreement (except
that the Company shall remain liable to the extent provided in Section 6(f) and
(g) hereof) and the Underwriters (other than a defaulting Underwriter) shall be
under no liability to the Company nor be under any liability under this
Agreement to one another.
12. Notices: All notices hereunder shall, unless otherwise expressly
permitted, be in writing and be delivered at or mailed to the following
addresses:
If to the Company:
The Southern Company
c/o Southern Company Services, Inc.
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Attention: David B. Brooks
Tel: (404) 506-0759
Fax: (404) 506-0674
with copies to (such copy not to constitute notice):
Troutman Sanders LLP
Bank of America Plaza, Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: John D. McLanahan, Esq.
Tel: (404) 885-3180
Fax: (404) 962-6630
<PAGE>
If to the Underwriters:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Don Hansen
Tel: (212) 902-6685
Fax: (212) 902-9020
with copies to (such copy not to constitute notice):
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Attention: E. N. Ellis IV, Esq.
Tel: (212) 259-6150
Fax: (212) 259-6151
13. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company, its directors
and officers, and the controlling persons, if any, referred to in Sections 7
and 8 hereof, and their respective successors, assigns, executors and
administrators, and, subject to the provisions of Section 10 hereof, no other
person shall acquire or have any right under or by virtue of this agreement.
14. Applicable Law, Jurisdiction: This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to the choice of law or conflict of law principles thereof.
<PAGE>
15. Counterparts: This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original,
and all of which together shall be deemed to be one and the same
instrument.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
THE SOUTHERN COMPANY
By:
--------------------------------------------------
Name:
Title:
Confirmed and accepted as of the date
first above written.
Goldman, Sachs & Co.
Banc of America Securities LLC
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
UBS Warburg LLC
By:
----------------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
Underwriters
Total Number of Shares Number of Shares to be Purchased if
Underwriter to be Purchased Maximum Option to Purchase Exercised
----------- --------------- -----------------------------------
<S> <C> <C>
Goldman, Sachs & Co. 9,000,000 10,350,000
Banc of America Securities LLC 2,250,000 2,587,500
Lehman Brothers Inc. 2,250,000 2,587,500
Merrill Lynch, Pierce, Fenner & Smith 2,250,000 2,587,500
Incorporated
Morgan Stanley & Co. Incorporated 4,500,000 5,175,000
UBS Warburg LLC 2,250,000 2,587,500
ABN AMRO Incorporated 250,000 287,500
Blaylock & Partners, L.P. 250,000 287,500
Cazenove Inc. 250,000 287,500
Chase Securities Inc. 250,000 287,500
A.G. Edwards & Sons, Inc. 250,000 287,500
First Union Securities, Inc. 250,000 287,500
Jackson Securities Incorporated 250,000 287,500
Edward D. Jones & Co., L.P. 250,000 287,500
Raymond James & Associates, Inc. 250,000 287,500
The Williams Capital Group, L.P.
250,000 287,500
Total Shares _________ _________
25,000,000 28,750,000
</TABLE>
<PAGE>
EXHIBIT 1
[Letterhead of TROUTMAN SANDERS LLP]
December __, 2000
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
THE SOUTHERN COMPANY
COMMON STOCK
Ladies and Gentlemen:
We have acted as counsel to The Southern Company (the "Company") in
connection with the Company's issuance and sale of ____ shares of its common
stock, par value $5 per share (the "Common Stock"). The Common Stock is being
sold to you today pursuant to the terms of a Underwriting Agreement dated
__________, 2000 (the "Underwriting Agreement"), among the Company 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(b)(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. 333-64871, 333-64871-01, 333-64871-02,
333-64871-03 and 333-64871-04), as amended, pertaining to the Common Stock (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act"), and the prospectus dated ___________, 2000, as supplemented by a
prospectus supplement dated __________, 2000 (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, 1999, 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 Common Stock, of which we have examined a specimen), 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.
<PAGE>
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 LLP, 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 and to enter into and perform
its obligations under the Underwriting Agreement and to issue the Common Stock.
2. The execution, delivery and performance by the Company 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 Company.
3. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Common Stock have
been obtained; such orders are sufficient for the issuance and sale of the
Common Stock and the issuance and sale of the Common Stock 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 sale of the Common Stock in accordance
with the terms of the Underwriting Agreement.
4. The Common Stock has been duly authorized; the Common Stock, when
issued and delivered by the Company to the Underwriters against payment therefor
as described in the Prospectus, will be validly issued, fully paid and
nonassessable; and the Common Stock conforms as to legal matters in all material
respects to the description thereof in the Prospectus under the caption
"Description of Common Stock".
5. The Company is not an "investment company" under the Investment
Company Act of 1940, as amended.
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 paragraph 4 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, 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 ________________, 2000, complied as to
form in all material respects with the requirements of the Act and the
<PAGE>
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 that 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) contained as of or contains as of the date hereof any
untrue statement of a material fact or omitted as of or omits as of the date
hereof 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 LLP may rely on this opinion in giving
their opinion pursuant to Section 5(b)(2) of the Underwriting Agreement insofar
as such opinion relates to matters of Georgia law.
Yours very truly,
TROUTMAN SANDERS LLP
<PAGE>
EXHIBIT 2
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 2000
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
THE SOUTHERN COMPANY
COMMON STOCK
Ladies and Gentlemen:
In connection with the issuance and sale by The Southern Company (the
"Company") of _____________ shares of common stock, par value $5 per share (the
"Common Stock"), we have acted as counsel to you and the other underwriters
named in Schedule I (the "Underwriters") to the Underwriting Agreement dated
___________, 2000, among the Company and the Underwriters for whom you are
acting as Representative (the "Underwriting Agreement"). This opinion is being
delivered to you as Representative pursuant to Section 5(b)(2) 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. 333-64871, 333-64871-01, 333-64871-02,
333-64871-03 and 333-64871-04), as amended, pertaining to the Common Stock (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act"), and the related prospectus dated ___________, 2000, as supplemented
by a prospectus supplement dated __________, 2000 (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, 1999, 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 Common Stock, of which we have examined a specimen), 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.
<PAGE>
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 that 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, 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 and to enter into and perform
its obligations under the Underwriting Agreement and to issue the Common Stock.
2. The execution, delivery and performance by the Company 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 Company.
3. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Common Stock have
been obtained; such orders are sufficient for the issuance and sale of the
Common Stock and the issuance and sale of the Common Stock 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 sale of the Common Stock in accordance
with the terms of the Underwriting Agreement.
4. The Common Stock has been duly authorized; the Common Stock, when
issued and delivered by the Company to the Underwriters against payment therefor
as described in the Prospectus, will be validly issued, fully paid and
nonassessable; and the Common Stock conforms as to legal matters in all material
respects to the description thereof in the Prospectus under the caption
"Description of Common Stock".
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 paragraph 4 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 __________, 2000,
complied as to form in all material respects with the requirements of the Act
<PAGE>
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 that 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) contained as of or contains as of the date hereof any
untrue statement of a material fact or omitted as of or omits as of the date
hereof 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 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
opinion dated the date hereof pursuant to Section 5(b)(1) of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
<PAGE>
EXHIBIT 3
Letter from Arthur Andersen LLP pursuant to Section 5(b)(iii)
Arthur Andersen LLP will state that:
(A) they are independent public accountants with respect to the Company within
the meaning of the 1933 Act and the rules and regulations under the 1933 Act;
(B) in their opinion, the financial statements audited by them and incorporated
by reference in the Final Supplemented Prospectus comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the rules and regulations under the 1934 Act; and (C) on the basis of
certain limited procedures performed 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) performing the procedures specified by the American
Institute of Certified Public Accountants ("AICPA") for a review of interim
financial information as described in Statement on Auditing Standards No. 71,
"Interim Financial Information", on the unaudited financial statements, if any,
of the Company incorporated in the Final Supplemented Prospectus and of the
latest available unaudited financial statements of the Company, if any, for any
calendar quarter subsequent to the date of those incorporated in the Final
Supplemented Prospectus; and (iii) making inquiries of certain officials of the
Company who have responsibility for financial and accounting matters regarding
such unaudited financial statements or any specified unaudited amounts derived
therefrom (it being 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 Agent's
purposes), nothing came to their attention that caused them to believe that: (1)
any material modifications should be made to the unaudited condensed financial
statements, if any, incorporated in the Final Supplemented Prospectus, for them
to be in conformity with generally accepted accounting principles; (2) such
unaudited condensed financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act as
it applies to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts of Operating Revenues, Earnings Before
Interest and Income Taxes and Consolidated Net Income and the unaudited Ratios
of Earnings to Fixed Charges and Earnings to Fixed Charges Plus Preferred
Dividends Requirements (Pre-Income Tax Basis) set forth in the Final
Supplemented Prospectus do not agree with the amounts set forth in or derived
from the unaudited financial statements for the same period or were not
determined on a basis substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by reference in Registration
Statement; (4) as of a specified date not more than five 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 Final
Supplemented Prospectus, except in each case for changes or decreases which (i)
the Final Supplemented 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,
<PAGE>
(v) are occasioned by the purchase or redemption of debt securities or stock to
satisfy mandatory or optional redemption provisions relating thereto, or (vi)
are disclosed in such letter, and except for any change in long-term debt of a
subsidiary of the Company which does not exceed $20,000,000, unless the
aggregate of all such changes exceeds $200,000,000, in which case this exception
does not apply; and (5) the unaudited amounts of Operating Revenues, Earnings
Before Interest and Income Taxes and Consolidated Net Income and the unaudited
Ratios of Earnings to Fixed Charges and Earnings to Fixed Charges Plus Preferred
Dividend Requirements (Pre-Income Tax Basis) for any calendar quarter subsequent
to those set forth in (3) above, which if available shall be set forth in such
letter, do not agree with the amounts set forth in or derived from the unaudited
financial statements for the same period or were not determined on a basis
substantially consistent with that of the corresponding audited amounts or
ratios included or incorporated by reference in the Final Supplemented
Prospectus.
<PAGE>
Exhibit 4
The Southern Company
Lock-Up Agreement
, 2000
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Re: The Southern Company - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representative (the
"Representative"), propose to enter into an Underwriting Agreement on behalf of
the several Underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with The Southern Company, a Delaware corporation (the
"Company"), providing for a public offering (the "Public Offering") of shares of
the common stock (the "Common Stock") of the Company (the "Shares") pursuant to
a Registration Statement on Form S-3 filed with the Securities and Exchange
Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and sell
the Shares, the undersigned agrees that, during the period beginning from the
date of the final supplemented prospectus covering the public offering of the
Shares and continuing to and including the date 90 (the "Cut-off Date") days
after the date of such final supplemented prospectus, the undersigned will not
offer, sell, contract to sell, pledge, grant any option to purchase, make any
short sale or otherwise dispose of any Subject Shares (as hereinafter defined),
or any options or warrants to purchase any Subject Shares, or any securities
convertible into, exchangeable for or that represent the right to receive
Subject Shares.
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the undersigned's Subject Shares even if such Subject Shares
would be disposed of by someone other than the undersigned. Such prohibited
hedging or other transactions would include without limitation any short sale or
any purchase, sale or grant of any right (including without limitation any put
or call option) with respect to any of the undersigned's Subject Shares or with
respect to any security that includes, relates to, or derives any significant
part of its value from such Subject Shares.
The term "Subject Shares" means (i) the shares of Common Stock whether
now owned or hereafter acquired, owned directly by the undersigned (including
holding as a custodian) or with respect to which the undersigned has beneficial
ownership within the rules and regulations of the SEC and (ii) shares of Common
Stock acquired prior to the Cut-Off Date under any employee or director
compensation plan of the Company or under any employee or shareholder investment
plan of the Company.
<PAGE>
Notwithstanding the foregoing, the undersigned may transfer the Subject
Shares (i) as a gift or gifts, provided that the donee or donees thereof agree
to be bound in writing by the restrictions set forth herein, (ii) to any member
of the immediate family of the undersigned provided that the transferee or
transferees agree to be bound in writing by the restrictions set forth herein,
(iii) to any trust or foundation, provided that the trustee of the trust or
foundation agrees to be bound in writing by the restrictions set forth herein,
and provided further that any such transfer shall not involve a disposition for
value, (iv) to an entity controlled by the undersigned provided the transferee
agrees to be bound in writing by the restrictions set forth herein, (v) pursuant
to the laws of testamentary or intestate descent, provided that the transferee
or transferees agree(s) to be bound in writing by the restrictions set forth
herein or (vi) with the prior written consent of the Representative on behalf of
the Underwriters. For purposes of this Lock-Up Agreement, "immediate family"
shall mean any relationship by blood, marriage or adoption, not more remote than
first cousin. The undersigned will have at the time the undersigned acquires
each of the Subject Shares, and, except as contemplated by clause (i), (ii),
(iii), (iv), (v) or (vi) above, for the duration of this Lock-Up Agreement will
have, good and marketable title to such Subject Shares, free and clear of all
liens, encumbrances, and claims whatsoever created by the undersigned. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
Subject Shares except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors, and assigns.
Very truly yours,
________________________________________
Exact Name of Shareholder
________________________________________
Authorized Signature
________________________________________
Title
