As filed with the Securities and Exchange Commission on March 6, 2000
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)
SOUTHERN COMPANY PERFORMANCE STOCK PLAN
(formerly The Southern Company Executive Stock 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(3)
========================== ======================== ======================== ======================== ========================
<S> <C> <C> <C> <C>
Common Stock, par value 20,000,000 shares $21 13/16 $436,250,000 $115,170
$5 per share
========================== ======================== ======================== ======================== ========================
</TABLE>
(1) Includes 3,694,854 shares of unsold Common Stock of the Company
previously registered under Registration Statement No. 33-30171.
(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 March 1, 2000, as reported in the New York Stock Exchange consolidated
reporting system, and are used solely for the purpose of calculating the
registration fee.
(3) Pursuant to Rule 429 under the Securities Act of 1933, the
registration fee consists of $93,894 paid herewith and $21,276 which has
previously been paid. See Note (1).
The documents constituting the prospectus herein contain the
information required by Rule 429 of the Commission under the Securities Act of
1933 with respect to 3,694,854 shares of Common Stock of the Company remaining
unsold under Registration Statement No. 33-30171.
<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") 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, 1998.
(b) (1) The registrant's Current Reports on Form 8-K dated
February 10, 1999 and February 16, 2000.
(2) The registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1999, June 30, 1999 and
September 30, 1999.
(c) The description of the registrant's common stock contained in
Registration No. 333-64871 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 right of the
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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 By-Laws of SOUTHERN provide in substance that no present or future
director or officer of SOUTHERN shall be liable for any act, omission, step or
conduct taken or had in good faith which is required, authorized or approved by
order issued pursuant to the Public Utility Holding Company Act of 1935, the
Federal Power Act, or any state statute regulating SOUTHERN or its subsidiaries
by reason of their being public utility companies or public utility holding
companies, or any amendment to any thereof. In the event that such provisions
are found by a court not to constitute a valid defense, each such director and
officer shall be reimbursed for, or indemnified against, all expenses and
liabilities incurred by him or imposed on him, in connection with, or arising
out of, any such action, suit or proceeding based on any act, omission, step or
conduct taken or had in good faith as in such By-Laws described.
The By-Laws of SOUTHERN also provide in pertinent part as follows:
"Each person who is or was a director or officer of the
Corporation and who was or is a party or was or is threatened to be
made a party to any threatened, pending or completed claim, action,
suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, agent or trustee of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the
Corporation as a matter of right against any and all expenses
(including attorneys' fees) actually and reasonably incurred by him and
against any and all claims, judgments, fines, penalties, liabilities
and amounts paid in settlement actually incurred by him in defense of
such claim, action, suit or proceeding, including appeals, to the full
extent permitted by applicable law. The indemnification provided by
this Section shall inure to the benefit of the heirs, executors and
administrators of such person.
Expenses (including attorneys' fees) incurred by a director or
officer of the Corporation with respect to the defense of any such
claim, action, suit or proceeding may be advanced by the Corporation
prior to the final disposition of such claim, action, suit or
proceeding, as authorized by the Board of Directors in the specific
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case, upon receipt of an undertaking by or on behalf of such person to
repay such amount unless it shall ultimately be determined that such
person is entitled to be indemnified by the Corporation under this
Section or otherwise; provided, however, that the advancement of such
expenses shall not be deemed to be indemnification unless and until it
shall ultimately be determined that such person is entitled to be
indemnified by the Corporation."
SOUTHERN has an insurance policy covering its liabilities and expenses
which might arise in connection with its lawful indemnification of its directors
and officers for certain of their liabilities and expenses and also covering its
officers and directors against certain other liabilities and expenses.
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) - By-Laws of SOUTHERN as amended effective October 21, 1991,
and as presently in effect. (Designated in Form U-1, File No.
70-8181, as Exhibit A-2.)
4(c) - Southern Company Performance Stock Plan, Amended and
Restated effective July 19, 1999.
5(a) - Opinion of Troutman Sanders LLP, counsel to SOUTHERN.
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) Undertaking related to Rule 415 offering:
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
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(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 registration statement is on
Form S-3, Form S-8 or Form F-3 and the information required to
be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) Undertaking relating to filings incorporating subsequent Securities
Exchange Act of 1934 documents by reference:
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (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
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registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Undertaking relating filing of registration statement on Form S-8:
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
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 March 6, 2000.
THE SOUTHERN COMPANY
By: A. W. Dahlberg
Chairman of the Board 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
and Chief Executive Officer
(Principal Executive Officer)
W. L. Westbrook Financial Vice President, Chief Financial Officer and
Treasurer (Principal Financial and Accounting Officer)
Dorrit J. Bern )
Thomas F. Chapman )
A. D. Correll )
H. Allen Franklin )
L.G. Hardman III ) Directors
Elmer B. Harris )
Donald M. James )
David J. Lesar )
Zack T. Pate )
Gerald J. St. Pe )
By: /s/Wayne Boston March 6, 2000
Wayne Boston
Attorney-in-Fact
Exhibit 4(c)
SOUTHERN COMPANY
PERFORMANCE STOCK PLAN
AMENDED AND RESTATED
TROUTMAN SANDERS LLP
NationsBank Plaza
600 Peachtree Street, N.E., Suite 5200
Atlanta, Georgia 30308
(404) 885-3000
Effective July 19, 1999
<PAGE>
SOUTHERN COMPANY PERFORMANCE STOCK PLAN
AMENDED AND RESTATED
Purposes
This Southern Company Performance Stock Plan originally established
effective January 1, 1998 is hereby amended and restated effective July 19,
1999. The Plan is intended to maximize the long-term success of Southern
Company, ensure a balanced emphasis on both current and long-term performance,
enhance Participants' identification with shareholders' interests, and
facilitate the attraction and retention of key individuals with outstanding
ability.
ARTICLE I
Definitions. Whenever used in the Plan, the following terms shall have
the meaning set forth below:
1.1 "Award" shall mean, individually and collectively, any Option,
Stock Appreciation Right or Restricted Stock granted under the Plan.
1.2 "Award Document" shall mean the written document evidencing the
grant of an Award and setting forth the terms and conditions thereof.
1.3 "Base Value" shall mean the Fair Market Value of a Stock
Appreciation Right on the date of its grant.
1.4 "Beneficial Ownership" shall mean beneficial ownership within the
meaning of Rule 13d-3 promulgated under the Exchange Act.
1.5 "Board" or "Board of Directors" shall mean the Board of Directors
of Southern Company.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.7 "Committee" shall mean the Compensation Committee of the Board of
Directors composed solely of not less than three (3) Nonemployee Directors and,
to the extent necessary for any Award intended to qualify as Performance Based
to so qualify, each member of the Committee shall be an Outside Director.
1.8 "Common Stock" shall mean the common stock of Southern Company.
1.9 "Consummation" shall mean the completion of the final act necessary
to complete a transaction as a matter of law, including, but not limited to, any
required approvals by the corporation's shareholders and board of directors, the
transfer of legal and beneficial title to securities or assets and the final
approval of the transaction by any applicable domestic or foreign governments or
agencies.
1.10 "Control" shall mean, in the case of a corporation, Beneficial
Ownership of more than 50% of the combined voting power of the corporation's
Voting Securities, or in the case of any other entity, Beneficial Ownership of
more than 50% of such entity's voting equity interests.
1.11 "Covered Employee" shall mean a Participant who is, as of the last
day of Southern Company's fiscal year in which the Participant shall be required
to recognize taxable income with respect to an Award, a "covered employee"
within the meaning of Code section 162(m)(3) and the regulations thereunder.
1.12 "Director" shall mean any person who is currently a member of the
Board of Directors or of the board of directors of an Employing Company.
1.13 "Disability" shall mean total and permanent disability as
determined by the Social Security Administration.
1.14 "Effective Date" shall mean July 19, 1999.
1.15 "Employee" shall mean any person who is currently employed by an
Employing Company.
1.16 "Employing Company" shall mean any affiliate or subsidiary (direct
or indirect) of Southern Company, which the Board of Directors may from time to
time determine to bring under the Plan and which may adopt the Plan, and any
successor of any of them.
1.17 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.18 "Fair Market Value" shall mean the average of the high and low
prices at which a share of Common Stock shall have been traded on the respective
measurement date, such as the date of grant or the exercise of an Award, or on
the next preceding trading day if such date was not a trading date, as reported
on the New York Stock Exchange-Composite Transactions Listing, or as otherwise
determined by the Committee. In no event shall the Fair Market Value equal less
than the par value of the Common Stock.
1.19 "Group" shall mean group within the meaning of Section 14(d) of
the Exchange Act.
1.20 "Incentive Stock Option" shall mean a stock option satisfying the
requirements of Section 422 of the Code granted pursuant to Section 4.1(b) and
designated by the Committee as an Incentive Stock Option.
1.21 "Nonemployee Director" shall mean a Director of Southern Company
who is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
1.22 "Nonqualified Stock Option" shall mean an Option, other than an
Incentive Stock Option, granted pursuant to Section 4.1(c).
1.23 "Option" shall mean, individually and collectively, an Incentive
Stock Option or a Nonqualified Stock Option to purchase Common Stock.
1.24 "Optionee" shall mean a person to whom an Option has been granted
under the Plan.
1.25 "Option Price" shall mean the price per share of Common Stock set
by the grant of an Option, but in no event less than the Fair Market Value of
the Common Stock on the date of grant.
1.26 "Outside Director" shall mean a Director of Southern Company who
is an "outside director" within the meaning of Section 162(m) of the Code and
the regulations promulgated thereunder.
1.27 "Participant" shall mean any Director or Employee who satisfies
the criteria set forth in Article III.
1.28 "Performance-Based" shall mean compensation which qualifies as
"performance-based" within the meaning of Code section 162(m)(4)(c) and the
regulations thereunder.
1.29 "Person" shall mean any individual, entity or group within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act.
1.30 "Plan" shall mean this Southern Company Performance Stock Plan, as
amended and restated and as may be further amended from time to time.
1.31 "Restricted Stock" shall mean an Award granted pursuant to Section
4.1(e).
1.32 "Retirement" shall mean the termination of service or employment
by a Participant on or after age 65 or as otherwise determined by the Committee
in its sole discretion.
1.33 "Separation Date" shall mean, as determined by the Committee, the
date on which a Participant's service or employment with Southern Company or an
Employing Company terminates for reasons other than his transfer of service or
employment to Southern Company or another Employing Company. Whether any leave
of absence shall constitute a termination of service or employment for the
purposes of the Plan shall be determined in each case by the Committee in its
sole discretion.
1.34 "Stock Appreciation Right" or "SAR" shall mean a right to any
appreciation in value of shares of Common Stock granted pursuant to Section
4.1(d).
1.35 "Southern Company" shall mean The Southern Company.
1.36 "Southern Termination" shall mean the following:
(a) The Consummation of a reorganization, merger or
consolidation of Southern Company under circumstances where either (i)
Southern Company is not the surviving corporation or (ii) Southern
Company's Voting Securities are no longer publicly traded;
(b) The sale or other disposition of all or substantially all
of Southern Company's assets; or
(c) The Consummation of an acquisition by any Person of
Beneficial Ownership of all of Southern Company's Voting Securities
such that Southern Company's Voting Securities are no longer publicly
traded.
1.37 "Subsidiary Change in Control" shall mean the following:
(a) The Consummation of an acquisition by any Person of
Beneficial Ownership of 50% or more of the combined voting power of the
then outstanding Voting Securities of a Subsidiary Change in Control
Company; provided, however, that for purposes of this Subsection 1.37,
any acquisition by an Employee, or Group composed entirely of
Employees, any qualified pension plan, publicly held mutual fund or any
employee benefit plan (or related trust) sponsored or maintained by
Southern Company or any corporation Controlled by Southern Company
shall not constitute a Change in Control;
(b) The Consummation of a reorganization, merger or
consolidation of a Subsidiary Change in Control Company (a "Subsidiary
Change in Control Company Business Combination"), in each case, unless,
following such Subsidiary Change in Control Business Company
Combination, Southern Company Controls the corporation surviving or
resulting from such Subsidiary Change in Control Company Business
Combination; or
(c) The Consummation of the sale or other disposition of all
or substantially all of the assets of a Subsidiary Change in Control
Company to an entity which Southern Company does not Control.
1.38 "Subsidiary Change in Control Company" shall mean an Employing
Company which has been authorized to and has adopted the Southern Company change
in control program.
1.39 "Subsidiary Employee" shall mean an Employee of a Subsidiary
Change in Control Company which has undergone a Subsidiary Change in Control
whose employment is not immediately transferred to another Employing Company
upon such Subsidiary Change in Control.
1.40 "Voting Securities" shall mean the outstanding voting securities
of a corporation entitling the holder thereof to vote generally in the election
of such corporation's directors.
Where the context requires, words in the masculine gender shall include
the feminine and neuter genders, words in the singular shall include the plural,
and words in the plural shall include the singular.
ARTICLE II
2.1 Plan Administration. The Plan shall be administered by the
Committee. The Committee is authorized to establish such rules, to appoint such
agents and to delegate such authority as it deems appropriate for the proper
administration of the Plan, including, but not limited to, the delegation of
authority to such person or persons to exercise the discretion provided in
Section 5.1 hereof to determine whether a Participant may exercise an Award
subsequent to termination of employment, and to make such determinations and to
take such steps in connection with the Plan or the benefits provided hereunder
as it deems necessary or advisable.
2.2 Plan Interpretation. The Committee shall have the exclusive
authority to interpret the Plan. The decision of the Committee with respect to
any question arising as to the grant of an Award to a Participant in the Plan,
the amount, term, form, and time of payment of Awards under the Plan, or any
other matter concerning the Plan shall be final, conclusive, and binding on both
Southern Company and the Participants.
ARTICLE III
3.1 Eligibility. The Participants in the Plan shall be limited to
Directors and to those Employees, as determined by the Committee, who have a
significant impact on the long-term performance and success of Southern Company.
Subject to the terms of the Plan, the Committee shall identify individuals
eligible to become Participants in the Plan, select from time to time the
Participants to whom Awards shall be granted and shall determine the number of
Awards to be granted.
ARTICLE IV
4.1 Awards.
(a) General. Beginning January 1, 1998 and thereafter not more
frequently than once each calendar year, the Committee shall determine
the forms and amounts of Awards for Participants. All Awards shall be
subject to the terms and conditions of the Plan and to such other terms
and conditions consistent with the Plan as the Committee deems
appropriate. Awards under the Plan need not be uniform and Awards under
two (2) or more paragraphs may be combined in one Award Document. Any
combination of Awards may be granted at one time and on more than one
occasion to the same Participant. Such Awards may take the following
forms, in the Committee's sole discretion:
(b) Incentive Stock Options. These shall be stock options
within the meaning of Section 422 of the Code to purchase Common Stock.
In addition to other restrictions contained in the Plan, an Incentive
Stock Option (1) shall not be exercised more than ten (10) years after
the date it is granted, (2) shall not have an Option Price less than
the Fair Market Value of Common Stock on the date the Incentive Stock
Option is granted, (3) shall otherwise comply with Section 422 of the
Code, (4) shall be granted only to Employees and (5) shall be
designated as an "Incentive Stock Option" by the Committee. The
aggregate Fair Market Value of Common Stock, determined at the time of
each grant, for which any Optionee may vest in Incentive Stock Options
under this Plan for any calendar year shall not exceed $100,000.
(c) Nonqualified Stock Options. These shall be stock options
to purchase Common Stock which are not designated by the Committee as
"Incentive Stock Options." At the time of the grant, the Committee
shall determine the Option exercise period, the Option Price, and such
other conditions or restrictions on the exercise of the Nonqualified
Stock Option as the Committee deems appropriate. In addition to other
restrictions contained in the Plan, a Nonqualified Stock Option (1)
shall not be exercised more than ten (10) years after the date it is
granted, and (2) shall not have an Option Price less than 100% of the
Fair Market Value of Common Stock on the date the Nonqualified Stock
Option is granted.
(d) Stock Appreciation Rights. These shall be rights that on
exercise entitle the holder to receive the excess of (1) the Fair
Market Value of Common Stock on the date of exercise over (2) its Base
Value multiplied by (3) the number of SARs exercised. Such rights shall
be satisfied in cash, stock, or a combination thereof, as determined by
the Committee. Stock Appreciation Rights granted under the Plan may be
granted in the sole discretion of the Committee in conjunction with an
Incentive Stock Option or Nonqualified Stock Option under the Plan. The
Committee may impose such conditions or restrictions on the exercise of
SARs as it deems appropriate and may terminate, amend, or suspend such
SARs at any time. SARs granted under this Plan shall not be exercised
more than ten (10) years after the date of grant.
(e) Restricted Stock. Restricted Stock shall be shares of
Common Stock held by Southern Company for the benefit of a Participant
without payment of consideration, except as otherwise may be determined
by the Committee in its discretion, with restrictions or conditions
upon the Participant's right to retain, transfer or sell such shares.
The following provisions shall be applicable to Restricted Stock
Awards:
(1) Stock Power. Each certificate for Restricted
Stock shall be registered in the name of the Participant and
shall be deposited by him with Southern Company, together with
a stock power endorsed in blank.
(2) Restriction Period. At the time of making a
Restricted Stock Award, the Committee shall establish the
"Restriction Period" applicable thereto. Such Restriction
Period may be up to ten (10) years as determined by the
Committee. The Committee may provide for the annual lapse of
restrictions with respect to a specified percentage of the
Restricted Stock, provided the Participant satisfies all
eligibility requirements at such time.
(3) Dividends. The Participant shall be entitled to
receive dividends during the Restriction Period and shall have
the right to vote such Common Stock and all other
shareholder's rights except the following:
(i) the Participant shall not be entitled to
delivery of the stock certificate during the
Restriction Period,
(ii) Southern Company shall retain custody
of the Common Stock during the Restriction Period,
and
(iii) a breach of a restriction or a breach
of the terms and conditions established by the
Committee with respect to the Restricted Stock shall
cause a forfeiture of the Restricted Stock.
4.2 Award Document. After the Committee determines the form and amount
of a Participant's Award, it shall cause Southern Company to prepare an Award
Document to be delivered to the Participant setting forth the form and amount of
the Award and any conditions and restrictions on the Award imposed by the Plan
and the Committee.
4.3 Exercise and Payment. The exercise of an Option shall be made only
by a written notice delivered in person or by mail to the Secretary of Southern
Company at Southern Company's principal executive office, specifying the number
of shares of Common Stock to be purchased and accompanied by payment therefore
and otherwise in accordance with the Award Document pursuant to which the Option
was granted. The purchase price for any shares of Common Stock purchased
pursuant to the exercise of an Option shall be paid, as determined by the
Committee in its discretion and set forth in the Award Document at the time of
grant, in either of the following forms (or any combination thereof): (i) cash
or (ii) the transfer of shares of Common Stock with a Fair Market Value equal to
the aggregate exercise price of the Option to Southern Company upon such terms
and conditions as determined by the Committee. In addition, Options may be
exercised through a registered broker-dealer pursuant to such cashless exercise
procedures (other than the withholding of shares of Common Stock that would
otherwise be acquired upon the exercise of such Option) which are, from time to
time, deemed acceptable by the Committee, and the Committee may authorize that
the purchase price payable upon exercise of an Option may be paid by having
shares of Common Stock withheld that otherwise would be acquired upon such
exercise. Any shares of Common Stock transferred to Southern Company (or
withheld upon exercise) as payment of the purchase price under an Option shall
be valued at their Fair Market Value on the day preceding the date of exercise
of such Option. The Optionee shall deliver the Award Document evidencing the
Option to the Secretary of Southern Company who shall endorse thereon a notation
of such exercise and return such Award Document to the Optionee. No fractional
shares of Common Stock (or cash in lieu thereof) shall be issued upon exercise
of an Option and the number of shares of Common Stock that may be purchased upon
exercise shall be rounded to the nearest number of whole shares of Common Stock.
4.4 Limitations on Exercise. Awards do not provide the Participant with
any rights or interests until they vest. Unless otherwise provided in the Award
Document, and subject to any other relevant Sections of the Plan, an Award shall
vest twenty-five (25%) percent per year on each of the first four (4)
anniversary dates of the Grant Date, provided the Participant has continued in
the employment of the Company through such anniversary or anniversaries.
ARTICLE V
5.1 Termination of Service or Employment. A Participant whose service
as a Director or whose employment terminates for reasons other than Retirement,
Disability, or death shall, in the discretion of the Committee, have no right to
receive any benefit or payment for existing Awards under the Plan. Any
outstanding Award shall terminate on the Participant's Separation Date;
provided, however, that the Committee or its designee, in its or his sole
discretion, may permit the exercise of any outstanding Award after the
Participant's Separation Date, at such time and in such manner as the Committee
or such designee may determine, but in no event in the case of Incentive Stock
Options shall such exercise be beyond the earlier of (a) three (3) months from
the Participant's Separation Date or (b) the expiration date of the Award, to
the extent exercisable on such Participant's Separation Date.
5.2 Death of a Participant. Unless otherwise provided in the Award
Document, in the event of the death of a Participant prior to the exercise of
all Incentive Stock Options, Nonqualified Stock Options, and Stock Appreciation
Rights granted to such Participant, the administrator of the deceased
Participant's estate, the executor under his will, or the person or persons to
whom the Options or SARs shall have been validly transferred by such executor or
administrator pursuant to the will or laws of intestate succession shall have
the right, within thirty-six (36) months from the date of such Participant's
death, but not beyond the expiration date of the Options or SARs, to exercise
such Options or SARs to the extent exercisable on such Participant's Separation
Date.
5.3 Retirement.
(a) Incentive Stock Options. In the event of the termination
of a Participant's employment as result of his Retirement prior to the
exercise of all Incentive Stock Options granted to the Participant,
such Participant shall have the right, within three (3) months of his
Separation Date, but not beyond the expiration date of such Options, to
exercise such Incentive Stock Options to the extent exercisable on his
Separation Date.
(b) Nonqualified Stock Options and SARs. Unless otherwise
provided in the Award Document, in the event of the termination of a
Participant's employment as a result of his Retirement prior to the
exercise of all Nonqualified Stock Options or Stock Appreciation Rights
granted to the Participant, such Participant shall have the right,
within thirty-six (36) months of his Separation Date, but not beyond
the expiration date of such Nonqualified Stock Options or SARs, to
exercise such Nonqualified Stock Options or SARs to the extent
exercisable on his Separation Date.
5.4 Disability.
(a) Incentive Stock Options. In the event of the termination
of a Participant's employment due to Disability prior to the exercise
of all Incentive Stock Options granted to the Participant, such
Participant or his legal representative shall have the right, within
twelve (12) months of his Separation Date, but not beyond the
expiration date of such Incentive Stock Options, to exercise such
Incentive Stock Options to the extent exercisable on his Separation
Date.
(b) Nonqualified Stock Options and SARs. Unless otherwise
provided in the Award Document, in the event of the termination of a
Participant's employment due to Disability prior to the exercise of all
Nonqualified Stock Options or Stock Appreciation Rights granted to the
Participant, such Participant or his legal representative shall have
the right, within thirty-six (36) months of his Separation Date, but
not beyond the expiration date of such Nonqualified Stock Options or
SARs, to exercise such Nonqualified Stock Options or SARs to the extent
exercisable on his Separation Date.
5.5 Change in Control.
(a) Subsidiary Change in Control. Notwithstanding any other
provision of the Plan to the contrary, in the event of a Subsidiary
Change in Control:
(i) Any Options and Stock Appreciation Rights held by
a Subsidiary Employee which are outstanding as of the date
such Subsidiary Change in Control is determined to have
occurred, and which are not then exercisable and vested, shall
become fully exercisable and vested to the full extent of the
original grant; provided, that in the case of a Subsidiary
Employee holding a Stock Appreciation Right who is actually
subject to Section 16(b) of the Exchange Act, such Stock
Appreciation Right shall not become fully vested and
exercisable unless it shall have been outstanding for at least
six months as of the date such Subsidiary Change in Control is
determined to have occurred.
(ii) The restrictions and deferral limitations
applicable to any Restricted Stock held by a Subsidiary
Employee shall lapse, and such Restricted Stock shall become
free of all restrictions and limitations and become fully
vested and transferable to the full extent of the original
grant.
(iii) The restrictions and deferral limitations and
other conditions applicable to any other Awards held by
Subsidiary Employees shall lapse, and such other Awards shall
become free of all restrictions, limitations or conditions and
become fully vested and transferable to the full extent of the
original grant.
(b) Southern Termination. Notwithstanding any other provision
of the Plan to the contrary, in the event of a Southern Termination:
(i) Any Options and Stock Appreciation Rights which
are outstanding as of the date such Southern Termination is
determined to have occurred, and which are not then
exercisable and vested, shall become fully exercisable and
vested to the full extent of the original grant; provided,
that in the case of a Participant holding a Stock Appreciation
Right who is subject to Section 16(b) of the Exchange Act,
such Stock Appreciation Right shall not become fully vested
and exercisable at such time if such actions would result in
liability to the Participant under Section 16(b), provided
further, that any such actions not taken as a result of the
rules under Section 16(b) shall be effected as of the first
date that such activity would no longer result in liability
under such section.
(ii) The restrictions and deferral limitations
applicable to any Restricted Stock shall lapse, and such
Restricted Stock shall become free of all restrictions and
limitations and become fully vested and transferable to the
full extent of the original grant.
(iii) The restrictions and deferral limitations and
other conditions applicable to any other Awards under the Plan
shall lapse, and such other Awards shall become free of all
restrictions, limitations or conditions and become fully
vested and transferable to the full extent of the original
grant.
(iv) Any Options, Stock Appreciation Rights or
Restricted Stock which are outstanding as of the date such
Southern Termination is determined to have occurred, shall be
converted into or replaced by options, stock appreciation
rights or restricted stock, as the case may be, in the
Surviving Company, or the corporation which has acquired all
of Southern Company's Common Stock or assets. In the event of
such conversion or replacement, the terms of the replacement
options or stock appreciation rights shall preserve with
respect to each Option and each SAR the spread between the
Fair Market Value of the shares subject to the Options or SARs
and the Option Price or Base Value, as the case may be, as
determined immediately prior to the Southern Termination.
Similarly, the terms of replacement restricted stock shall
preserve the Fair Market Value of each share of Restricted
Stock as determined immediately prior to the Southern
Termination. No replacement option, stock appreciation right
or share of restricted stock received shall be subject to any
terms which are less favorable than those which existed with
respect to the original Option, SAR or share of Restricted
Stock immediately prior to the Southern Termination.
(v) In the event that it is not possible to effect
the conversion set forth in Section 5.5(b)(iv) hereof, any and
all outstanding Options, Stock Appreciation Rights and
Restricted Stock as of the date of the Southern Termination
which are not so converted shall be terminated and the
affected Participants shall receive within thirty (30) days of
the Southern Termination cash equal to the difference between
the Option Price and Fair Market Value, in the case of
Options, the Base Value and Fair Market Value, in the case of
SARs and equal to the Fair Market Value, in the case of
Restricted Stock. For purposes of this Section 5.5(b)(v), Fair
Market Value shall be determined as of the day prior to the
date of the Southern Termination.
ARTICLE VI
6.1 Limitation of Shares of Common Stock Available under the Plan.
(a) Share Limit. The total number of shares of Common Stock
available to be granted by the Committee as Awards to the Participants
under the Plan shall not exceed 40,000,000 shares. Upon a change in
capitalization, the maximum number of shares of Common Stock referred
to in the preceding sentence shall be adjusted in number and kind
pursuant to Section 7.1 hereof.
(b) Share Reduction. The total number of shares available
under Section 6.1(a) shall be reduced from time to time in the manner
specified:
(1) Incentive Stock Options and Nonqualified Stock
Options. The grant of an Incentive Stock Option and
Nonqualified Stock Option shall reduce the available shares by
the number of shares subject to such Option.
(2) Stock Appreciation Rights. The grant of Stock
Appreciation Rights shall reduce the available shares by the
number of SARs granted; provided, however, if SARs are granted
in conjunction with an Option and the exercise of such Option
would cancel the SARs and vice versa, then the grant of the
SARs will only reduce the amount available by the excess, if
any, of the number of SARs granted over the number of shares
subject to the related Option.
(3) Restricted Stock. The grant of Restricted Stock
shall reduce the available shares by the number of shares of
Restricted Stock granted.
(c) Share Increase. The total number of shares available under
Section 6.1(a) shall be increased from time to time in the manner
specified:
(1) Incentive Stock Options and Nonqualified Stock
Options. The lapse or cancellation of an Incentive Stock
Option or Nonqualified Stock Option shall increase the
available shares by the number of shares released from such
Option; provided, however, in the event the cancellation of an
Option is due to the exercise of SARs related to such Option,
the cancellation of such Option shall only increase the amount
available by the excess, if any, of the number of shares
released from such Option over the number of SARs exercised.
(2) Stock Appreciation Rights. The lapse or
cancellation of Stock Appreciation Rights shall increase the
available shares by the number of SARs which lapse or are
canceled; provided, however, in the event the cancellation of
such SARs is due to the exercise of an Option related to such
SARs, the cancellation of such SARs shall only increase the
available shares by the excess, if any, of the number of SARs
canceled over the number of shares delivered on the exercise
of such Option.
(3) Restricted Shares. The reversion of Restricted
Stock to Southern Company due to the breach or occurrence of a
restriction or failure to satisfy a condition on such shares
shall increase the available shares by the number of shares of
Restricted Stock reverted.
6.2 Maximum Shares to Participant. The maximum number of shares of
Common Stock which may be the subject of Awards to a Participant during any
calendar year during the term of the Plan shall be 1,000,000.
ARTICLE VII
7.1 Adjustment Upon Changes in Capitalization. The total number of
shares of Common Stock available for Awards under the Plan or allocable to any
individual Participant, the number of shares of Common Stock subject to
outstanding Options, the exercise price for such Options, the number of
outstanding SARs, the Base Value of such SARs and the Award limit set forth in
subsection 6.2 shall be appropriately adjusted by the Committee in the event of
any increase or decrease in the number of outstanding shares of Common Stock
resulting from any change in Southern Company's capital structure, including but
not limited to any stock dividend, subdivision or combination of shares, or
reclassification.
7.2 Merger, Consolidation or Tender Offer. In the event of a merger or
consolidation of Southern Company or a tender offer for shares of Common Stock,
or in anticipation of such merger, consolidation, or tender offer, the Committee
may make such adjustments with respect to Awards under the Plan and take such
other action as it deems necessary or appropriate to reflect such merger,
consolidation, or tender offer, including without limitation the substitution of
new Awards, the termination or adjustment of outstanding Awards, the
acceleration of Awards, or the removal of limitations or restrictions on
outstanding Awards.
ARTICLE VIII
8.1 Withholding Taxes. Southern Company or the Employing Company, as
the case may be, of the Participant shall deduct from all payments and
distributions in cash under the Plan any taxes required to be withheld for
federal, state, or local governments. In the event distributions are made in
shares of Common Stock, Southern Company shall retain the value of sufficient
shares to equal the amount of the tax required to be withheld in respect of such
distributions.
8.2 Service or Employment. The establishment of the Plan and Awards
hereunder shall not be construed as conferring on any Participant any right to
continued service or employment, and the service or employment of any
Participant may be terminated without regard to the effect which such action
might have upon him or her as a Participant.
8.3 Non-Alienation of Benefits. Except as otherwise provided in Section
8.5 hereof, or as may otherwise be provided in the Participant's Award Document
with respect to Awards other than Incentive Stock Options, and other than as
specifically provided with regard to the death of a Participant, no benefit
under the Plan shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, or charge, excluding the use of
Options under this Plan as collateral in exercising such Options. Any attempt to
do so shall be null and void. No such benefits shall, prior to receipt thereof
by the Participant, be in any manner liable for or subject to the debts,
contracts, liabilities, engagement, or torts of the Participant.
8.4 Non-Alienation of Election or Exercise Rights. Except as otherwise
provided in Section 8.5 hereof, or as may otherwise be provided in the
Participant's Award Document with respect to Awards other than Incentive Stock
Options, no election as to benefits or exercise of Options, Stock Appreciation
Rights, or other rights may be made during a Participant's lifetime by anyone
other than the Participant.
8.5 Transfer of Awards (Other Than ISOs) to Revocable Trust. Awards
other than Incentive Stock Options may be transferred by a Participant to a
revocable trust under circumstances where the grantor Participant is the trustee
or co-trustee of such revocable trust and the trust beneficiaries are limited to
the grantor Participant and, in the event of the Participant's death, the
grantor's spouse, lineal descendants and lineal ancestors. Powers of the
non-Participant co-trustee must be limited to the exercise of the Awards held by
the trust in the event of the Participant's death or incapacity. Written notice
of the Participant's intent to transfer Awards under this Section 8.5 must be
delivered to the Vice President of Human Resources of Southern Company Services,
Inc. prior to such transfer.
8.6 Amendment, Modification, and Termination of the Plan. Except for
the provisions of Section 5.5 hereof, which cannot be amended, modified or
terminated following a Subsidiary Change in Control or a Southern Termination,
the Board of Directors, at any time, may terminate and in any respect amend or
modify the Plan; provided, however, that no such action by the Board of
Directors, without approval of Southern Company's shareholders, may increase the
total number of shares of Common Stock available under the Plan; and further
provided that, except as provided in Section 7.2, no amendment, modification, or
termination of the Plan shall in any manner adversely affect the rights of any
Participant under the Plan without the consent of such Participant.
8.7 Indemnification. Each person who is or shall have been a member of
the Committee or of the Board of Directors shall be indemnified and held
harmless by Southern Company against and from any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by him in connection
with or resulting from any claim, action, suit, or proceeding to which he may be
a party or in which he may be involved by reason of any action or failure to act
under the Plan and against and from any and all amounts paid by him in
satisfaction of judgment in any such action, suit, or proceeding against him.
Such person shall give Southern Company an opportunity, at its own expense, to
handle and defend the same before he undertakes to handle and defend it on his
own behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under
Southern Company's Articles of Incorporation or Bylaws, as a matter of law, or
otherwise, or any power that Southern Company may have to indemnify them or hold
them harmless.
8.8 Reliance on Reports. Each member of the Committee and each member
of the Board of Directors shall be fully justified in relying or acting in good
faith upon any report made by the independent public accountants of Southern
Company and any Employing Company and upon any other information furnished in
connection with the Plan by any person or persons other than himself. In no
event shall any person who is or shall have been a member of the Committee or
the Board of Directors be liable for any determination made or other action
taken or any omission to act in reliance upon any such report or information or
for any action taken, including the furnishing of information, or failure to
act, if in good faith.
8.9 Governing Law. To the extent that federal law shall not be held to
have preempted local law, this Plan shall be governed by the laws of the State
of Delaware. If any provision of the Plan shall be held invalid or
unenforceable, the remaining provisions hereof shall continue in full force and
effect.
8.10 Term. The Plan shall remain in effect for ten (10) years from the
Effective Date or until terminated by the Board of Directors, whichever occurs
first.
8.11 Pooling Accounting. Notwithstanding anything to the contrary
herein, if, but for any provision of this Plan, a Southern Termination
transaction would otherwise be accounted for as a pooling-of-interests under APB
No.16 ("Pooling Accounting") (after giving effect to any and all other facts and
circumstances affecting whether such Southern Termination transaction would use
Pooling Accounting), such provision or provisions of this Plan which would
otherwise cause the Southern Termination transaction to be ineligible for
Pooling Accounting shall automatically be void and ineffective in such a manner
and to the extent that by eliminating such provision or provisions of this Plan,
Pooling Accounting would be required for such Southern Termination transaction
and Pooling Accounting is in fact used for such Southern Termination
transaction.
8.12 Additional Terms. With respect to any Award, the Committee may, in
its discretion: (i) modify or restrict any of the terms and conditions of any
Awards (provided, however, that no such modification of an Award may in any way
adversely affect a Participant's Award, without the written consent of a
Participant); (ii) modify or restrict Award exercise procedures and any other
Plan procedures; (iii) establish local country plans as subplans to this Plan,
each of which may be attached as an Appendix hereto; and (iv) take any action,
before or after an Award is made, which it deems advisable to obtain or comply
with any necessary local government regulatory exemptions or approvals; provided
that the Committee may not take any action hereunder which would violate any
securities law or any governing statute.
8.13 Refusal of Award. Any Participant may refuse the grant of an Award
by notifying the Committee of his or her refusal in writing in a form and
pursuant to procedures to be determined by the Committee.
8.14 No Additional Rights. Nothing in the Plan shall interfere with or
limit in any way the right of the Company to terminate any Participant's
employment at any time, or confer upon any Participant any right to continue in
the employ of the Company.
No employee shall have the right to be selected to receive an Award
under this Plan or having been so selected, to be selected to receive a future
Award.
Neither the Award nor any benefits arising under this Plan shall
constitute part of a Participant's employment contract with the Company (or any
affiliate or subsidiary of the Company), and accordingly, this Plan and the
benefits hereunder may be terminated at any time in the sole and exclusive
discretion of the Committee without giving rise to liability on the part of the
Company (or any affiliate or subsidiary of the Company) for severance payments.
8.15 Requirements of Law. The granting of Awards and the issuance of
shares of Common Stock under the Plan shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
<PAGE>
IN WITNESS WHEREOF, Southern Company has caused the Southern Company
Performance Stock Plan, as amended and restated, to be executed by its duly
authorized officers pursuant to resolutions of the Board of Directors as of the
______day of ___________1999, to be effective July 19, 1999.
SOUTHERN COMPANY
By:___________________________________
Christopher C. Womack
Senior Vice President, Human Resources
Attest:
By:____________________________
Tommy Chisholm
Secretary
Exhibit 5(a)
Troutman Sanders LLP
Bank of America Plaza
600 Peachtree Street, N.E. - Suite 5200
Atlanta, Georgia 30308-2216
March 6, 2000
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 (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), for the registration of additional shares of its common stock, par value
$5 per share (the "Stock"), for sale pursuant to the Southern Company
Performance Stock 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 incorporated 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 Act 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 newly issued for sale under the Plan 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. In giving the foregoing consent, we do not hereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission thereunder.
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 Performance Stock Plan, of our report dated February 16, 2000 included
in The Southern Company's Form 8-K dated February 16, 2000 and our reports dated
February 10, 1999 included in The Southern Company's Form 10-K for the year
ended December 31, 1998 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 28, 2000
February 21, 2000
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 Performance Stock
Plan, in an amount of up to 20 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/Dorrit J. Bern /s/Donald M. James
Dorrit J. Bern Donald M. James
/s/Thomas F. Chapman /s/David J. Lesar
Thomas F. Chapman David J. Lesar
/s/A. D. Correll /s/Zack T. Pate
A. D. Correll Zack T. Pate
/s/A. W. Dahlberg /s/Gerald J. St. Pe'
A. W. Dahlberg Gerald J. St. Pe'
/s/H. Allen Franklin /s/Stephen A. Wakefield
H. Allen Franklin Stephen A. Wakefield
/s/W. L. Westbrook
________________________________ W. L. Westbrook
Bruce S. Gordon
/s/L. G. Hardman III /s/Tommy Chisholm
L. G. Hardman III Tommy Chisholm
/s/Elmer B. Harris /s/W. Dean Hudson
Elmer B. Harris W. Dean Hudson
<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 Performance Stock 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 February 21, 2000, 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 March 6, 2000 THE SOUTHERN COMPANY
By /s/Tommy Chisholm
Tommy Chisholm
Secretary
