GEORGIA POWER COMPANY
Filed Pursuant to Rule 424(b)(2)
Registration No. 333-140954
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered |
Maximum Aggregate
Offering Price Per Unit |
Amount of Registration Fee(1)(2) |
Series 2009A 5.95% Senior Notes |
$500,000,000 |
$19,650 |
(1) |
Calculated in accordance with Rule 457(r) under the Securities Act of 1933, as amended. |
(2) |
The fee has been satisfied by applying, pursuant to rule 457(p) under the Securities Act of 1933, as amended,
$19,650 of previously paid filing fees totaling $75,465 that have not been used with respect to $1,425,000,000 aggregate initial offering price of securities that were previously registered pursuant to Registration Statement No. 333-121202 declared effective on January 12, 2005, and were not sold thereunder. This “Calculation of Registration Fee” table shall be deemed to update the “Calculation of Registration Fee” table in Georgia Power Company’s Registration Statement on Form S-3 (Registation No. 333-140954). |
Prospectus Supplement
(To Prospectus dated February 28, 2007)
$500,000,000
Series 2009A 5.95% Senior
Notes
due February 1,
2039
This is a public offering by Georgia Power Company
of $500,000,000 of Series 2009A 5.95% Senior Notes due
February 1, 2039. Georgia Power Company will pay interest
on the Series 2009A Senior Notes on February 1 and
August 1 of each year, beginning August 1, 2009. The
Series 2009A Senior Notes may be redeemed, in whole or in
part, at any time and from time to time, at a redemption price
as described under the caption “Description of the
Series 2009A Senior Notes — Optional
Redemption.”
The Series 2009A Senior Notes
will be unsecured and will rank equally with all of Georgia
Power Company’s other unsecured and unsubordinated
indebtedness from time to time outstanding and will be
effectively subordinated to all secured debt of Georgia Power
Company to the extent of the collateral securing such debt.
See “Risk Factors” on
page S-2
to read about certain factors you should consider before
investing in the Series 2009A Senior Notes.
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Per Series
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2009A Senior
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Note
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Total
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Public offering price(1)
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99.628%
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$
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498,140,000
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Underwriting discount
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0.875%
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$
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4,375,000
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Proceeds, before expenses, to Georgia Power Company(1)
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98.753%
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$
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493,765,000
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(1) |
Plus accrued interest, if any, from the date of original
issuance of the Series 2009A Senior Notes, which is
expected to be February 10, 2009.
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Neither the Securities and
Exchange Commission nor any other regulatory body has approved
or disapproved of these securities or passed upon the accuracy
or adequacy of this Prospectus Supplement or the accompanying
Prospectus. Any representation to the contrary is a criminal
offense.
The Series 2009A Senior Notes
are expected to be delivered on or about February 10, 2009
through the book-entry facilities of The Depository Trust
Company.
Joint Book-Running Managers
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Barclays
Capital |
Mitsubishi UFJ Securities |
SunTrust Robinson Humphrey |
Wachovia Securities |
Co-Managers
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CALYON |
Utendahl Capital Group,
LLC |
February 4, 2009
In making your investment decision, you should rely only on the
information contained or incorporated by reference in this
Prospectus Supplement, the accompanying Prospectus and any
written communication from Georgia Power Company or the
underwriters specifying the final terms of the offering. We have
not, and the underwriters have not, authorized anyone to provide
you with any other information. If you receive any unauthorized
information, you must not rely on it.
We are offering to sell the Series 2009A Senior Notes only
in places where sales are permitted.
You should not assume that the information contained or
incorporated by reference in this Prospectus Supplement, the
accompanying Prospectus or any written communication from
Georgia Power Company or the underwriters specifying the final
terms of the offering, including information incorporated by
reference, is accurate as of any date other than its respective
date.
TABLE OF
CONTENTS
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Page
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Prospectus Supplement
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S-2
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S-2
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S-2
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S-3
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S-3
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S-3
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S-4
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S-8
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S-9
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S-9
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Prospectus
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2
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2
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2
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3
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3
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4
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4
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5
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6
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7
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10
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13
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18
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19
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19
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RISK
FACTORS
Investing in the Series 2009A Senior Notes involves risk.
Please see the risk factors in Georgia Power Company’s
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2007, along with
disclosure related to the risk factors contained in Georgia
Power Company’s Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2008, June 30, 2008 and
September 30, 2008, which are incorporated by reference in
this Prospectus Supplement and the accompanying Prospectus.
Before making an investment decision, you should carefully
consider these risks as well as other information contained or
incorporated by reference in this Prospectus Supplement and the
accompanying Prospectus. The risks and uncertainties not
presently known to Georgia Power Company or that Georgia Power
Company currently deems immaterial may also impair its business
operations, its financial results and the value of the
Series 2009A Senior Notes.
THE
COMPANY
Georgia Power Company (the “Company”) is a corporation
organized under the laws of the State of Georgia on
June 26, 1930. The Company has its principal office at
241 Ralph McGill Boulevard, N.E., Atlanta, Georgia
30308-3374,
telephone
(404) 506-6526.
The Company is a wholly-owned subsidiary of The Southern Company.
The Company is a regulated public utility engaged in the
generation, transmission, distribution and sale of electric
energy within an approximately 59,200 square mile service area
comprising most of the State of Georgia.
SELECTED
FINANCIAL INFORMATION
The following selected financial information for the years ended
December 31, 2003 through December 31, 2007 has been
derived from the Company’s audited financial statements and
related notes and the unaudited selected financial data,
incorporated by reference in this Prospectus Supplement and the
accompanying Prospectus. The following selected financial
information for the nine months ended September 30, 2008
has been derived from the Company’s unaudited financial
statements and related notes, incorporated by reference in this
Prospectus Supplement and the accompanying Prospectus. The
information set forth below is qualified in its entirety by
reference to and, therefore, should be read together with
management’s discussion and analysis of results of
operations and financial condition, the financial statements and
related notes and other financial information incorporated by
reference in this Prospectus Supplement and the accompanying
Prospectus. The information set forth below does not reflect the
issuance of the Series 2009A Senior Notes offered hereby or the
use of proceeds therefrom. See “Use of Proceeds.”
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Nine Months
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Ended
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Year Ended December 31,
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September 30,
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2003
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2004
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2005
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2006
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2007
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2008(1)
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(Millions, except ratios)
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Operating Revenues
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$
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5,229
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$
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5,728
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$
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7,076
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$
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7,246
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$
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7,572
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$
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6,620
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Earnings Before Income Taxes
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1,037
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1,079
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1,195
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1,234
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1,260
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1,292
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Net Income After Dividends on Preferred and Preference Stock
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654
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683
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744
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787
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836
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826
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Ratio of Earnings to Fixed Charges(2)
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4.96
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5.05
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4.87
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4.72
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4.37
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5.50
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S-2
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Capitalization
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As of September 30, 2008
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Actual
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As Adjusted(3)
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(Millions, except percentages)
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(unaudited)
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Common Stock Equity
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$
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6,988
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$
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6,988
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49.3
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%
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Non-Cumulative Preferred Stock
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45
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45
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0.3
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Non-Cumulative Preference Stock
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221
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221
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1.6
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Senior Notes
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3,998
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4,498
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31.7
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Other Long-Term Debt
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2,421
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2,421
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17.1
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Total, excluding amounts due within one year of $369 million
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$
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13,673
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$
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14,173
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100.0
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%
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(1)
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Due to seasonal variations in the demand for energy, operating
results for the nine months ended September 30, 2008 do not
necessarily indicate operating results for the entire year.
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(2)
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This ratio is computed as follows: (i) “Earnings”
have been calculated by adding to “Earnings Before Income
Taxes” “Interest expense, net of amounts
capitalized,” “Distributions on mandatorily redeemable
preferred securities” and the debt portion of allowance for
funds used during construction and (ii) “Fixed
Charges” consist of “Interest expense, net of amounts
capitalized,” “Distributions on mandatorily redeemable
preferred securities” and the debt portion of allowance for
funds used during construction.
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(3)
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Reflects the issuance in November 2008 of (i) $100,000,000
aggregate principal amount of Series 2008C 8.20% Senior Notes
due November 1, 2048 and (ii) $400,000,000 aggregate principal
amount of Series 2008D 6.00% Senior Notes due November 1, 2013.
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RECENT
RESULTS OF OPERATIONS
For the year ended December 31, 2008, the unaudited amounts of
“Operating Revenues,” “Earnings Before Income
Taxes” and “Net Income After Dividends on Preferred
and Preference Stock” were $8,412,000,000, $1,408,000,000
and $903,000,000, respectively. In the opinion of management of
the Company, such unaudited amounts for the year ended December
31, 2008 reflect all adjustments necessary to present fairly the
results of operations for such period. The “Ratio of
Earnings to Fixed Charges” for the year ended December 31,
2008 was 4.65.
RECENT
DEVELOPMENTS
The recent deterioration of the capital markets has led to a
decline in the market value of the assets that are held in trust
to satisfy future obligations under the Company’s defined
benefit pension plans. Accordingly, the Company expects the
future funding requirements of the obligations under its defined
benefit plans to increase significantly.
In addition, the Company has initiated a voluntary attrition
plan under which participating employees may elect to resign
from their positions as of March 31, 2009. Approximately
700 employees who have indicated an interest in
participating in the plan have been selected by the Company and
are permitted to resign and receive severance. Each
participating employee will be entitled to receive a severance
payment equal to his or her annual base salary, accrued vacation
and pro-rated bonus as of March 31, 2009. The Company will
record a charge during the first quarter of 2009 in connection
with the plan. The ultimate amount of the charge will be
dependent on the total number of employees who elect to resign
under the plan. Such charge could have a material impact on the
Company’s income statement for the quarter ending
March 31, 2009 and cash flow statement for the six months
ending June 30, 2009. The first quarter charge will
generally be offset with lower salary costs for the remainder of
the year and is not expected to have a material impact on the
Company’s financial statements for the year ending
December 31, 2009.
USE OF
PROCEEDS
The proceeds from the sale of the Series 2009A Senior Notes
will be used by the Company to repay at maturity $150,000,000
aggregate principal amount of the Company’s Series U
Floating Rate Senior Notes due February 17, 2009, to repay
a portion of its outstanding short-term indebtedness, which
aggregated approximately $268,000,000 as of February 3,
2009, and for general corporate purposes, including the
Company’s continuous construction program.
S-3
DESCRIPTION
OF THE SERIES 2009A SENIOR NOTES
Set forth below is a description of the specific terms of the
Series 2009A 5.95% Senior Notes due February 1, 2039
(the “Series 2009A Senior Notes”). This
description supplements, and should be read together with, the
description of the general terms and provisions of the senior
notes set forth in the accompanying Prospectus under the caption
“Description of the Senior Notes.” The following
description does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, the
description in the accompanying Prospectus and the Senior Note
Indenture dated as of January 1, 1998, as supplemented (the
“Senior Note Indenture”), between the Company and The
Bank of New York Mellon (as successor to JPMorgan Chase Bank,
N.A. (formerly known as The Chase Manhattan Bank)), as trustee
(the “Senior Note Indenture Trustee”).
General
The 2009A Senior Notes will be issued as a series of senior
notes under the Senior Note Indenture. The Series 2009A
Senior Notes will initially be issued in the aggregate principal
amount of $500,000,000. The Company may, at any time and without
the consent of the holders of the Series 2009A Senior
Notes, issue additional notes having the same ranking and the
same interest rate, maturity and other terms as the
Series 2009A Senior Notes (except for the issue price and
issue date and the initial interest accrual date and initial
Interest Payment Date (as defined below), if applicable). Any
additional notes having such similar terms, together with the
Series 2009A Senior Notes, will constitute a single series
of senior notes under the Senior Note Indenture.
The entire principal amount of the Series 2009A Senior
Notes will mature and become due and payable, together with any
accrued and unpaid interest thereon, on February 1, 2039.
The Series 2009A Senior Notes are not subject to any
sinking fund provision. The Series 2009A Senior Notes are
available for purchase in denominations of $1,000 and any
integral multiple thereof.
Interest
Each Series 2009A Senior Note will bear interest at the
rate of 5.95% per year (the “Securities Rate”) from
the date of original issuance, payable semiannually in arrears
on February 1 and August 1 of each year (each, an
“Interest Payment Date”) to the person in whose name
such Series 2009A Senior Note is registered at the close of
business on the fifteenth calendar day prior to such payment
date (whether or not a Business Day). The initial Interest
Payment Date is August 1, 2009. The amount of interest
payable will be computed on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which
interest is payable on the Series 2009A Senior Notes is not
a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any
such delay), with the same force and effect as if made on such
date. “Business Day” means a day other than (i) a
Saturday or Sunday, (ii) a day on which banks in New York,
New York are authorized or obligated by law or executive order
to remain closed or (iii) a day on which the Senior Note
Indenture Trustee’s corporate trust office is closed for
business.
Ranking
The Series 2009A Senior Notes will be direct, unsecured and
unsubordinated obligations of the Company ranking equally with
all other existing and future unsecured and unsubordinated
obligations of the Company. The Series 2009A Senior Notes
will be effectively subordinated to all existing and future
secured debt of the Company, aggregating approximately
$69,000,000 outstanding at September 30, 2008. The Senior
Note Indenture contains no restrictions on the amount of
additional indebtedness that may be incurred by the Company.
Optional
Redemption
The Series 2009A Senior Notes will be subject to redemption
at the option of the Company, in whole or in part, at any time
and from time to time, upon not less than 30 nor more than 60
days’ notice, at redemption
S-4
prices (each, a “Redemption Price”) equal to the
greater of (i) 100% of the principal amount of the
Series 2009A Senior Notes being redeemed or (ii) the sum of
the present values of the remaining scheduled payments of
principal of and interest on the Series 2009A Senior Notes
being redeemed (not including any portion of such payments of
interest accrued to the redemption date) discounted (for
purposes of determining present value) to the redemption date on
a semiannual basis (assuming a 360-day year consisting of twelve
30-day
months) at a discount rate equal to the Treasury Yield (as
defined below) plus 40 basis points, plus, in each case,
accrued interest on the Series 2009A Senior Notes to the
redemption date.
“Treasury Yield” means, with respect to any redemption
date, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
“Comparable Treasury Issue” means the United States
Treasury security selected by an Independent Investment Banker
as having a maturity comparable to the remaining term of the
Series 2009A Senior Notes to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of
the Series 2009A Senior Notes.
“Comparable Treasury Price” means, with respect to any
redemption date, (i) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations or
(ii) if the Company obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means an independent
investment banking institution of national standing appointed by
the Company.
“Reference Treasury Dealer” means a primary U.S.
Government securities dealer in New York City appointed by the
Company.
“Reference Treasury Dealer Quotation” means, with
respect to a Reference Treasury Dealer and any redemption date,
the average, as determined by the Company, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount and quoted in writing to
the Company by such Reference Treasury Dealer at 5:00 p.m. on
the third Business Day in New York City preceding such
redemption date).
If notice of redemption is given as aforesaid, the
Series 2009A Senior Notes so to be redeemed will, on the
redemption date, become due and payable at the Redemption Price
together with any accrued interest thereon, and from and after
such date (unless the Company has defaulted in the payment of
the Redemption Price and accrued interest) such Series 2009A
Senior Notes shall cease to bear interest. If any
Series 2009A Senior Note called for redemption shall not be
paid upon surrender thereof for redemption, the principal shall,
until paid, bear interest from the redemption date at the
Securities Rate. See “Description of the Senior
Notes — Events of Default” in the accompanying
Prospectus.
Subject to the foregoing and to applicable law (including,
without limitation, United States federal securities laws), the
Company or its affiliates may, at any time and from time to
time, purchase outstanding Series 2009A Senior Notes by
tender, in the open market or by private agreement.
Book-Entry
Only Issuance — The Depository Trust Company
The Depository Trust Company (“DTC”) will act as the
initial securities depository for the Series 2009A Senior
Notes. The Series 2009A Senior Notes will be issued only as
fully registered securities registered in the name of Cede
& Co., DTC’s partnership nominee, or such other name
as may be requested by an authorized representative of DTC. One
or more fully registered global Series 2009A Senior Notes
certificates will be issued, representing in the aggregate the
total principal amount of the Series 2009A Senior Notes,
and will be deposited with the Senior Note Indenture Trustee on
behalf of DTC.
S-5
DTC is a limited-purpose trust company organized under the New
York Banking Law, a “banking organization” within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a “clearing corporation” within the
meaning of the New York Uniform Commercial Code and a
“clearing agency” registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of
1934, as amended (the “1934 Act”). DTC holds and
provides asset servicing for over 3.5 million issues of
U.S. and
non-U.S.
equity issues, corporate and municipal debt issues and money
market instruments from over 100 countries that DTC’s
participants (“Direct Participants”) deposit with DTC.
DTC also facilitates the post-trade settlement among Direct
Participants of sales and other securities transactions in
deposited securities, through electronic computerized book-entry
transfers and pledges between Direct Participants’
accounts. This eliminates the need for physical movement of
securities certificates. Direct Participants include both U.S.
and non-U.S.
securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is a
wholly-owned subsidiary of The Depository Trust &
Clearing Corporation (“DTCC”). DTCC is the holding
company for DTC, National Securities Clearing Corporation and
Fixed Income Clearing Corporation, all of which are registered
clearing agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to
others such as both U.S. and
non-U.S.
securities brokers and dealers, banks, trust companies and
clearing corporations that clear through or maintain a custodial
relationship with a Direct Participant, either directly or
indirectly (“Indirect Participants”). DTC has
Standard & Poor’s, a division of The McGraw Hill
Companies, Inc., highest’s rating: AAA. The DTC rules
applicable to its Direct and Indirect Participants are on file
with the Securities and Exchange Commission. More information
about DTC can be found at www.dtcc.com and www.dtc.org. The
contents of such websites do not constitute part of this
Prospectus Supplement.
Purchases of Series 2009A Senior Notes under the DTC system
must be made by or through Direct Participants, which will
receive a credit for the Series 2009A Senior Notes on
DTC’s records. The ownership interest of each actual
purchaser of each Series 2009A Senior Note
(“Beneficial Owner”) is in turn to be recorded on the
Direct and Indirect Participants’ records. Beneficial
Owners will not receive written confirmation from DTC of their
purchases. Beneficial Owners, however, are expected to receive
written confirmations providing details of the transactions, as
well as periodic statements of their holdings, from the Direct
or Indirect Participants through which the Beneficial Owner
purchased Series 2009A Senior Notes. Transfers of ownership
interests in the Series 2009A Senior Notes are to be
accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial
Owners will not receive certificates representing their
ownership interests in Series 2009A Senior Notes, except in
the event that use of the book-entry system for the
Series 2009A Senior Notes is discontinued.
To facilitate subsequent transfers, all Series 2009A Senior
Notes deposited by Direct Participants with DTC are registered
in the name of DTC’s partnership nominee, Cede &
Co., or such other name as may be requested by an authorized
representative of DTC. The deposit of Series 2009A Senior
Notes with DTC and their registration in the name of
Cede & Co. or such other DTC nominee do not effect any
changes in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Series 2009A Senior Notes.
DTC’s records reflect only the identity of the Direct
Participants to whose accounts such Series 2009A Senior
Notes are credited, which may or may not be the Beneficial
Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants,
and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices will be sent to DTC. If less than all the
Series 2009A Senior Notes are being redeemed, DTC’s
practice is to determine by lot the amount of interest of each
Direct Participant in such Series 2009A Senior Notes to be
redeemed.
Although voting with respect to the Series 2009A Senior
Notes is limited, in those cases where a vote is required,
neither DTC nor Cede & Co. (nor any other DTC nominee)
will consent or vote with respect to Series 2009A Senior
Notes unless authorized by a Direct Participant in accordance
with DTC’s procedures.
S-6
Under its usual procedures, DTC mails an Omnibus Proxy to the
Company as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.’s consenting or voting
rights to those Direct Participants to whose accounts the
Series 2009A Senior Notes are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Payments on the Series 2009A Senior Notes will be made to
Cede & Co., or such other nominee as may be requested by an
authorized representative of DTC. DTC’s practice is to
credit Direct Participants’ accounts upon DTC’s
receipt of funds and corresponding detailed information from the
Company or the Senior Note Indenture Trustee on the relevant
payment date in accordance with their respective holdings shown
on DTC’s records. Payments by Direct or Indirect
Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with
securities held for the account of customers registered in
“street name,” and will be the responsibility of such
Direct or Indirect Participant and not of DTC or the Company,
subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment to Cede & Co. (or
such other nominee as may be requested by an authorized
representative of DTC) is the responsibility of the Company,
disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the
Beneficial Owners is the responsibility of Direct and Indirect
Participants.
Except as provided herein, a Beneficial Owner of a global
Series 2009A Senior Note will not be entitled to receive
physical delivery of Series 2009A Senior Notes.
Accordingly, each Beneficial Owner must rely on the procedures
of DTC to exercise any rights under the Series 2009A Senior
Notes. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of securities in
definitive form. Such laws may impair the ability to transfer
beneficial interests in a global Series 2009A Senior Note.
DTC may discontinue providing its services as securities
depository with respect to the Series 2009A Senior Notes at
any time by giving reasonable notice to the Company. Under such
circumstances, in the event that a successor securities
depository is not obtained, Series 2009A Senior Notes
certificates will be required to be printed and delivered to the
holders of record. Additionally, the Company may decide to
discontinue use of the system of book-entry transfers through
DTC (or a successor securities depository) with respect to the
Series 2009A Senior Notes. The Company understands,
however, that under current industry practices, DTC would notify
its Direct and Indirect Participants of the Company’s
decision, but will only withdraw beneficial interests from a
global Series 2009A Senior Note at the request of each
Direct or Indirect Participant. In that event, certificates for
the Series 2009A Senior Notes will be printed and delivered
to the applicable Direct or Indirect Participant.
The information in this section concerning DTC and DTC’s
book-entry system has been obtained from sources that the
Company believes to be reliable, but neither the Company nor any
Underwriter takes any responsibility for the accuracy thereof.
The Company has no responsibility for the performance by DTC or
its Direct or Indirect Participants of their respective
obligations as described herein or under the rules and
procedures governing their respective operations.
S-7
UNDERWRITING
Subject to the terms and conditions of an underwriting agreement
(the “Underwriting Agreement”), the Company has agreed
to sell to each of the Underwriters named below (the
“Underwriters”), for whom Barclays Capital Inc.,
Mitsubishi UFJ Securities International plc, SunTrust Robinson
Humphrey, Inc. and Wachovia Capital Markets, LLC are acting as
representatives (the “Representatives”), and each of
the Underwriters severally has agreed to purchase from the
Company the principal amount of Series 2009A Senior Notes set
forth opposite its name below:
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Principal Amount
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of Series 2009A
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Underwriters
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Senior Notes
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Barclays Capital Inc.
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$
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113,750,000
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Mitsubishi UFJ Securities International plc
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113,750,000
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SunTrust Robinson Humphrey, Inc.
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113,750,000
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Wachovia Capital Markets, LLC
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113,750,000
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Calyon Securities (USA) Inc.
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22,500,000
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Utendahl Capital Group, LLC
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22,500,000
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Total
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$
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500,000,000
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In the Underwriting Agreement, the Underwriters have agreed,
subject to the terms and conditions set forth therein, to
purchase all of the Series 2009A Senior Notes offered
hereby, if any of the Series 2009A Senior Notes are
purchased.
The Underwriters propose to offer the Series 2009A Senior
Notes directly to the public at the public offering price set
forth on the cover page of this Prospectus Supplement and may
offer them to certain securities dealers at such price less a
concession not in excess of 0.50% of the principal amount per
Series 2009A Senior Note. The Underwriters may allow, and
such dealers may reallow, a concession not in excess of 0.25% of
the principal amount per Series 2009A Senior Note to
certain brokers and dealers. After the initial public offering,
the offering price and other selling terms may from time to time
be varied by the Underwriters.
The Series 2009A Senior Notes are a new issue of securities
with no established trading market. The Series 2009A Senior
Notes will not be listed on any securities exchange or on any
automated dealer quotation system. The Underwriters may make a
market in the Series 2009A Senior Notes after completion of
the offering, but will not be obligated to do so and may
discontinue any market-making activities at any time without
notice. No assurance can be given as to the liquidity of the
trading market for the Series 2009A Senior Notes or that an
active public market for the Series 2009A Senior Notes will
develop. If an active public trading market for the
Series 2009A Senior Notes does not develop, the market
price and liquidity of the Series 2009A Senior Notes may be
adversely affected.
The Company has agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities
Act of 1933, as amended.
The Company’s expenses associated with the offer and sale
of the Series 2009A Senior Notes are estimated to be
$415,000.
The Company has agreed with the Underwriters that, during the
period 15 days from the date of the Underwriting Agreement,
it will not sell, offer to sell, grant any option for the sale
of, or otherwise dispose of any Series 2009A Senior Notes,
any security convertible into, exchangeable into or exercisable
for the Series 2009A Senior Notes or any debt securities
substantially similar to the Series 2009A Senior Notes
(except for the Series 2009A Senior Notes issued pursuant
to the Underwriting Agreement), without the prior written
consent of the Representatives. This agreement does not apply to
issuances of commercial paper or other debt securities with
scheduled maturities of less than one year.
In order to facilitate the offering of the Series 2009A
Senior Notes, the Underwriters may engage in transactions that
stabilize, maintain or otherwise affect the price of the
Series 2009A Senior Notes. Specifically, the Underwriters
may over-allot in connection with the offering, creating short
positions in the
S-8
Series 2009A Senior Notes for their own accounts. In
addition, to cover over-allotments or to stabilize the price of
the Series 2009A Senior Notes, the Underwriters may bid
for, and purchase, Series 2009A Senior Notes in the open
market. The Underwriters may reclaim selling concessions allowed
to an Underwriter or dealer for distributing Series 2009A
Senior Notes in the offering, if the Underwriters repurchase
previously distributed Series 2009A Senior Notes in
transactions to cover short positions, in stabilization
transactions or otherwise. Any of these activities may stabilize
or maintain the market price of the Series 2009A Senior
Notes above independent market levels. The Underwriters are not
required to engage in these activities, and may end any of these
activities at any time without notice.
In general, purchases of a security for the purpose of
stabilization or to reduce a short position could cause the
price of the security to be higher than it might be in the
absence of such purchases. The imposition of a penalty bid might
also have an effect on the price of a security to the extent
that it were to discourage resales of the security.
Neither the Company nor any Underwriter makes any representation
or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of
the Series 2009A Senior Notes. In addition, neither the
Company nor any Underwriter makes any representation that the
Underwriters will engage in such transactions or that such
transactions once commenced will not be discontinued without
notice.
It is expected that delivery of the Series 2009A Senior
Notes will be made, against payment for the Series 2009A
Senior Notes, on or about February 10, 2009, which will be
the fourth business day following the pricing of the
Series 2009A Senior Notes. Under
Rule 15c6-1
under the 1934 Act, purchases or sales of securities in the
secondary market generally are required to settle within three
business days (T+3), unless the parties to any such transactions
expressly agree otherwise. Accordingly, purchasers of the
Series 2009A Senior Notes who wish to trade the
Series 2009A Senior Notes on the date of this Prospectus
Supplement will be required, because the Series 2009A
Senior Notes initially will settle within four business days
(T+4), to specify an alternate settlement cycle at the time of
any such trade to prevent a failed settlement. Purchasers of the
Series 2009A Senior Notes who wish to trade on the date of
this Prospectus Supplement should consult their own legal
advisors.
Certain of the Underwriters and their affiliates have engaged
and may in the future engage in transactions with, and, from
time to time, have performed and may perform investment banking
and/or commercial banking services for, the Company and certain
of its affiliates in the ordinary course of business, for which
they have received and will receive customary compensation.
Mitsubishi UFJ Securities International plc is not a U.S.
registered broker-dealer and, therefore, to the extent that it
intends to effect any sales of the Series 2009A Senior Notes in
the United States, it will do so through one or more U.S.
registered broker-dealers as permitted by Financial Industry
Regulatory Authority regulations.
LEGAL
MATTERS
The validity of the Series 2009A Senior Notes and certain
matters relating to such securities will be passed upon on
behalf of the Company by Troutman Sanders LLP, Atlanta, Georgia.
Certain legal matters will be passed upon for the Underwriters
by Dewey & LeBoeuf LLP, New York, New York. From time
to time, Dewey & LeBoeuf LLP acts as counsel to
affiliates of the Company for some matters.
EXPERTS
The financial statements and the related financial statement
schedule as of and for the year ended December 31, 2007
incorporated in this Prospectus by reference from the
Company’s Annual Report on
Form 10-K
for the year ended December 31, 2007 have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in its reports (which report
on the financial statements expresses an unqualified opinion and
includes an explanatory paragraph referring to the
Company’s change in its method of accounting for
uncertainty in income taxes in 2007 and the funded status of
defined benefit pension and other postretirement plans in 2006),
which are incorporated in this Prospectus by reference, and have
been so incorporated in reliance upon the reports of such firm
given upon their authority as experts in accounting and auditing.
S-9
PROSPECTUS
Georgia Power Company
Class A Preferred
Stock
Preference Stock
Depositary Preference
Shares,
each representing a fraction of
a share
of Preference Stock
Senior Notes
Junior Subordinated
Notes
We will provide the specific terms of these securities in
supplements to this Prospectus. You should read this Prospectus
and the applicable Prospectus Supplement carefully before you
invest.
See “Risk Factors” on page 2 for information
on certain risks related to the purchase of these securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this Prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
ABOUT
THIS PROSPECTUS
This Prospectus is part of a registration statement filed with
the Securities and Exchange Commission (the
“Commission”) using a “shelf” registration
process under the Securities Act of 1933, as amended (the
“1933 Act”). Under the shelf process, Georgia Power
Company (the “Company”) may sell, in one or more
transactions,
• Class A preferred stock (the “new Stock”)
• preference stock (the “Preference Stock”)
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•
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depositary shares, each representing a fraction of a share of
Preference Stock (the “Depositary Shares”)
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• senior notes (the “Senior Notes”)
• junior subordinated notes (the “Junior
Subordinated Notes”)
in one or more offerings. This Prospectus provides a general
description of those securities. Each time the Company sells
securities, the Company will provide a prospectus supplement
that will contain specific information about the terms of that
offering (“Prospectus Supplement”). The Prospectus
Supplement may also add, update or change information contained
in this Prospectus. You should read this Prospectus and the
applicable Prospectus Supplement together with the additional
information under the heading “Available Information.”
RISK
FACTORS
Investing in the Company’s securities involves risk. Please
see the risk factors described in the Company’s Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2006, which is
incorporated by reference in this Prospectus. Before making an
investment decision, you should carefully consider these risks
as well as other information contained or incorporated by
reference in this Prospectus. The risks and uncertainties
described are not the only ones facing the Company. Additional
risks and uncertainties not presently known to the Company or
that the Company currently deems immaterial may also impair its
business operations, its financial results and the value of its
securities.
AVAILABLE
INFORMATION
The Company has filed with the Commission a registration
statement on Form S-3 (the “Registration
Statement,” which term encompasses any amendments of and
exhibits to the Registration Statement) under the 1933 Act. As
permitted by the rules and regulations of the Commission, this
Prospectus does not contain all of the information set forth in
the Registration Statement and the exhibits and schedules to the
Registration Statement, to which reference is made.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the “1934
Act”), and in accordance with the 1934 Act files reports
and other information with the Commission. Such reports and
other information can be inspected and copied at the Public
Reference Room of the Commission at 100 F Street, N.E.,
Room 1580, Washington, D.C. 20549. Information on the
operation of the Public Reference Room may be obtained by
calling the Commission at 1-800-SEC-0330. The Commission
maintains a Web site that contains reports, proxy and
information statements and other information regarding
registrants including the Company that file electronically at
http://www.sec.gov. In addition, reports and other material
concerning the Company can be inspected at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
2
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2006 has been filed with the
Commission pursuant to the 1934 Act and is incorporated in this
Prospectus by reference and made a part of this Prospectus.
All documents filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act
subsequent to the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated
in this Prospectus by reference and made a part of this
Prospectus from the date of filing of such documents; provided,
however, that the Company is not incorporating any information
furnished under Items 2.02 or 7.01 of any Current Report on
Form 8-K unless specifically stated otherwise. Any
statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to
be modified or superseded for purposes of this Prospectus to the
extent that a statement contained in this Prospectus or in any
other subsequently filed document which also is or is deemed to
be incorporated by reference in this Prospectus modifies or
supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to
whom this Prospectus is delivered, on the written or oral
request of any such person, a copy of any or all documents
incorporated in this Prospectus by reference (other than the
exhibits to such documents unless such exhibits are specifically
incorporated by reference). Such requests should be directed to
Daniel M. Lowery, Corporate Secretary, Georgia Power Company,
241 Ralph McGill Boulevard, N.E., Atlanta, Georgia
30308-3374, telephone:
(404) 506-6526.
GEORGIA
POWER COMPANY
The Company is a wholly-owned subsidiary of The Southern Company
(“Southern”). The Company was incorporated under the
laws of the State of Georgia on June 26, 1930, and admitted
to do business in Alabama on September 15, 1948. Effective
July 1, 2006, Savannah Electric and Power Company, formerly
a wholly-owned subsidiary of Southern, was merged with and into
the Company. The Company is engaged in the generation and
purchase of electric energy and the transmission, distribution
and sale of such energy within the State of Georgia at retail in
over 600 communities (including Athens, Atlanta, Augusta,
Columbus, Macon, Rome, Savannah and Valdosta), as well as in
rural areas, and at wholesale currently to 39 electric
cooperative associations through Oglethorpe Power Corporation, a
corporate cooperative of electric membership corporations in
Georgia, and to 50 municipalities, 48 of which are served
through the Municipal Electric Authority of Georgia, a public
corporation and an instrumentality of the State of Georgia. The
Company and one of its affiliates, Alabama Power Company, each
owns 50% of the common stock of Southern Electric Generating
Company (“SEGCO”). SEGCO owns electric generating
units near Wilsonville, Alabama. The principal executive offices
of the Company are located at 241 Ralph McGill Boulevard,
N.E., Atlanta, Georgia
30308-3374,
and the telephone number is
(404) 506-6526.
3
SELECTED
INFORMATION
The following material, which is presented in this Prospectus
solely to furnish limited introductory information regarding the
Company, has been selected from, or is based upon, the detailed
information and financial statements appearing in the documents
incorporated by reference in this Prospectus or elsewhere in
this Prospectus, is qualified in its entirety by reference to
those documents and, therefore, should be read together with
those documents.
Georgia
Power Company
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Business
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Generation, transmission, distribution and sale of electric
energy
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Service Area
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Approximately 59,200 square miles comprising most of the State
of Georgia
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Customers at December 31, 2006
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2,305,676
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Generating Capacity at December 31, 2006 (kilowatts)
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15,995,224
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Sources of Generation during 2006 (kilowatt-hours)
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Coal (75%), Nuclear (18%), Gas and Oil (6%), Hydro (1%)
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Certain
Ratios
The following table sets forth the Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges Plus Preferred Dividend
Requirements (Pre-Income Tax Basis) for the periods indicated.
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Year Ended December 31,
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2002
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2003
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2004
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2005
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2006
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Ratio of Earnings to Fixed Charges(1)
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4.96
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4.96
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5.05
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4.87
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4.72
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Ratio of Earnings to Fixed Charges Plus Preferred Dividend
Requirements
(Pre-Income Tax Basis)(2)
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4.95
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4.95
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4.99
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4.79
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4.62
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(1)
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This ratio is computed as follows: (i) “Earnings”
have been calculated by adding to “Earnings Before Income
Taxes” “Interest expense, net of amounts
capitalized,” “Interest expense to affiliate
trusts,” “Distributions on mandatorily redeemable
preferred securities” and the debt portion of allowance for
funds used during construction; and (ii) “Fixed
Charges” consist of “Interest expense, net of amounts
capitalized,” “Interest expense to affiliate
trusts,” “Distributions on mandatorily redeemable
preferred securities” and the debt portion of allowance for
funds used during construction.
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(2)
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In computing this ratio, “Preferred Dividend
Requirements” represent the before tax earnings necessary
to pay such dividends, computed at the effective tax rates for
the applicable periods.
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USE OF
PROCEEDS
Except as may be otherwise described in an applicable Prospectus
Supplement, any proceeds received by the Company from the sale
of the new Stock, the Preference Stock, the Depositary Shares,
the Senior Notes or the Junior Subordinated Notes will be used
in connection with its ongoing construction program, to pay
scheduled maturities and/or refundings of its securities, to
repay short-term indebtedness to the extent outstanding and for
other general corporate purposes.
4
DESCRIPTION
OF THE NEW STOCK
Set forth below is a description of the general terms of the new
Stock. The statements in this Prospectus concerning the new
Stock are an outline and do not purport to be complete. Such
statements make use of defined terms and are qualified in their
entirety by reference to the Charter of the Company (the
“Charter”) and the amendments thereto, a copy of which
is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part for complete statements and for the
definitions of various terms. The general provisions which apply
to the preferred stock of the Company of all classes, which are
now or may at a later time be authorized or created, are set
forth in the Charter.
General
The new Stock will be issued in series of the Company’s
Class A Preferred Stock to be established and designated by
an amendment to the Charter.
As of December 31, 2006, there were 1,800,000 outstanding
shares of the Class A Preferred Stock. The Class A
Preferred Stock has a par value of $25 per share. In addition to
the Class A Preferred Stock, the Company has authorized
5,000,000 shares of Preferred Stock, with a par value of
$100 per share. As of December 31, 2006, there were no
outstanding shares of the Preferred Stock.
The new Stock will not be subject to further calls or assessment
by the Company.
Any proposed listing of the new Stock on a securities exchange
will be described in the applicable Prospectus Supplement.
Transfer
Agent and Registrar
Unless otherwise indicated in the applicable Prospectus
Supplement, the transfer agent for the new Stock will be
Southern Company Services, Inc., 30 Ivan Allen Jr. Blvd.,
N.W., Atlanta, Georgia 30308, which will also serve as the
registrar.
Dividend
Rights and Provisions
Dividends on the new Stock are payable, when and if declared by
the Board of Directors, at the rate per annum determined for
each respective series. Unless otherwise indicated in the
applicable Prospectus Supplement, dividends will be payable to
holders of record of the new Stock as they appear on the books
of the Company on the record dates fixed by the Board of
Directors.
The applicable Prospectus Supplement will set forth the dividend
rate provisions of the new Stock, including the payment dates
and the rate or rates, or the method of determining the rate or
rates (which may involve periodic dividend rate settings through
remarketing or auction procedures or pursuant to one or more
formulae, as described in the applicable Prospectus Supplement),
and whether dividends shall be cumulative and, if so, from which
date or dates.
Redemption
Provisions
The redemption provisions applicable to the new Stock will be
described in the applicable Prospectus Supplement.
Voting
Rights
The applicable Prospectus Supplement will describe the voting
rights for each series of the new Stock.
Liquidation
Rights
Upon voluntary or involuntary liquidation, the holders of the
Preferred Stock and Class A Preferred Stock of each series,
without preference among series, are entitled to receive the
amount specified to be payable on the shares
5
of such series before any distribution of assets may be made to
the holders of the Company’s Preference Stock or Common
Stock. Available assets, if insufficient to pay such amounts to
the holders of the Preferred Stock and Class A Preferred
Stock, are to be distributed pro rata to the payment, first of
the amount per share payable in the event of involuntary
liquidation, second of accrued dividends and third of any
premium.
Sinking
Fund
The terms and conditions of a sinking or purchase fund, if any,
for the benefit of the holders of the new Stock will be set
forth in the applicable Prospectus Supplement.
Other
Rights
The holders of the new Stock do not have any pre-emptive or
conversion rights, except as otherwise described in the
applicable Prospectus Supplement.
DESCRIPTION
OF THE PREFERENCE STOCK
Set forth below is a description of the general terms of the
Preference Stock. The statements in this Prospectus concerning
the Preference Stock are an outline and do not purport to be
complete. Such statements make use of defined terms and are
qualified in their entirety by reference to the Charter and the
amendments thereto, a copy of which is filed as an exhibit to
the Registration Statement of which this Prospectus forms a part
for complete statements and for the definitions of various
terms. The general provisions which apply to all series of the
Preference Stock, which are now or may at a later time be
authorized or created, are set forth in the Charter.
General
The Preference Stock will be issued in series to be established
and designated by an amendment to the Charter.
As of December 31, 2006, there were no outstanding shares
of the Preference Stock. The Preference Stock has a par value of
$100 per share. The Preference Stock ranks junior to the
Preferred Stock and the Class A Preferred Stock with
respect to dividends and amounts payable upon liquidation,
dissolution or winding up of the Company. The Preference Stock
ranks senior to the Company’s Common Stock and to any other
securities the Company may issue in the future that by their
terms rank junior to the Preference Stock with respect to
dividends and amounts payable upon liquidation, dissolution or
winding up of the Company. All shares of the Preference Stock
will rank on a parity with respect to dividends and amounts
payable upon liquidation, dissolution or winding up of the
Company.
The Preference Stock will not be subject to further calls or
assessment by the Company.
Any proposed listing of the Preference Stock on a securities
exchange will be described in the applicable Prospectus
Supplement.
Transfer
Agent and Registrar
Unless otherwise indicated in the applicable Prospectus
Supplement, the transfer agent for the Preference Stock will be
Southern Company Services, Inc., 30 Ivan Allen Jr. Blvd.,
N.W., Atlanta, Georgia 30308, which will also serve as the
registrar.
Dividend
Rights and Provisions
Dividends on the Preference Stock are payable, when and if
declared by the Board of Directors, at the rate per annum
determined for each respective series. Unless otherwise
indicated in the applicable Prospectus Supplement, dividends
will be payable to holders of record of the Preference Stock as
they appear on the books of the Company on the record dates
fixed by the Board of Directors.
The applicable Prospectus Supplement will set forth the dividend
rate provisions of the Preference Stock, including the payment
dates and the rate or rates, or the method of determining the
rate or rates (which may involve
6
periodic dividend rate settings through remarketing or auction
procedures or pursuant to one or more formulae, as described in
the applicable Prospectus Supplement), and whether dividends
shall be cumulative and, if so, from which date or dates.
Redemption
Provisions
The redemption provisions applicable to the Preference Stock
will be described in the applicable Prospectus Supplement.
Voting
Rights
The applicable Prospectus Supplement will describe the voting
rights for each series of the Preference Stock.
Liquidation
Rights
Upon voluntary or involuntary liquidation, the holders of the
Preference Stock of each series, without preference among
series, are entitled to receive the amount specified to be
payable on the shares of such series before any distribution of
assets may be made to the holders of the Company’s Common
Stock. Available assets, if insufficient to pay such amounts to
the holders of the Preference Stock, are to be distributed pro
rata to the payment, first of the amount per share payable in
the event of involuntary liquidation, second of accrued
dividends and third of any premium.
Sinking
Fund
The terms and conditions of a sinking or purchase fund, if any,
for the benefit of the holders of the Preference Stock will be
set forth in the applicable Prospectus Supplement.
Other
Rights
The holders of the Preference Stock do not have any pre-emptive
or conversion rights, except as otherwise described in the
applicable Prospectus Supplement.
DESCRIPTION
OF THE DEPOSITARY SHARES
Set forth below is a description of the general terms of the
Depositary Shares. The statements in this Prospectus concerning
the Depositary Shares and the Deposit Agreement (as defined
below) are an outline and do not purport to be complete. Such
statements make use of defined terms and are qualified in their
entirety by express reference to the Deposit Agreement (which
contains the form of Depositary Receipt (as defined below)), a
form of which is an exhibit to the Registration Statement of
which this Prospectus forms a part.
General
The Company may, at its option, elect to offer Depositary
Shares. Each Depositary Share will represent a fraction of a
share of Preference Stock as described in the Prospectus
Supplement. The shares of Preference Stock represented by the
Depositary Shares will be deposited under a Deposit Agreement
(the “Deposit Agreement”), among the Company, the
Depositary named in the Deposit Agreement (the
“Depositary”) and all holders from time to time of the
depositary receipts (the “Depositary Receipts”) issued
under the Deposit Agreement. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges
of the Preference Stock (including dividend, voting and
liquidation rights) and subject, proportionately, to all of the
limitations of the Preference Stock contained in the Charter
summarized under “Description of the Preference Stock”
in this Prospectus. The Depositary Shares are evidenced by
Depositary Receipts issued pursuant to the Deposit Agreement.
Any proposed listing of the Depositary Shares on a securities
exchange will be described in the Prospectus Supplement.
7
Issuance
of Depositary Receipts
Immediately following the issuance of the Preference Stock, the
Company will deposit the Preference Stock with the Depositary,
which will then execute and deliver the Depositary Receipts to
the Company. The Company will, in turn, deliver the Depositary
Receipts to the underwriters or purchasers. Depositary Receipts
will be issued evidencing only whole Depositary Shares.
Withdrawal
of Preference Stock
Upon surrender of Depositary Receipts at the corporate trust
office of the Depositary, the owner of the Depositary Shares
evidenced by such Depositary Receipts is entitled to delivery at
such office of certificates evidencing the number of shares of
Preference Stock (but only in whole shares of Preference Stock)
represented by such Depositary Shares. If the Depositary
Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of whole shares of Preference
Stock to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares. The Company does not expect
that there will be any public trading market for the Preference
Stock, except as represented by the Depositary Shares.
Redemption
of Depositary Shares
The Depositary Shares will be redeemed, upon not less than 15
nor more than 60 days’ notice, using the cash proceeds
received by the Depositary resulting from the redemption, in
whole or in part, at the Company’s option, but subject to
the applicable terms and conditions, of shares of Preference
Stock held by the Depositary. The redemption price per
Depositary Share will be equal to the fraction of the redemption
price per share applicable to the Preference Stock. Whenever the
Company redeems shares of the Preference Stock held by the
Depositary, the Depositary will redeem as of the same redemption
date the number of Depositary Shares representing the shares of
Preference Stock so redeemed. If less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed will be selected pro rata (as nearly as may be) or
by lot or by such other equitable method as the Depositary may
determine.
Dividends
and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of Preference Stock to the
record holders of Depositary Receipts in proportion, insofar as
practicable, to the number of Depositary Shares owned by such
holders. In the event of a distribution other than in cash, the
Depositary will distribute property received by it to the record
holders of Depositary Receipts entitled to such property, unless
the Depositary determines that it is not feasible to make such
distribution, in which case the Depositary may, with the
approval of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of such property
and distribution of the net proceeds from such sale to such
holders. The amount distributed in any of the foregoing cases
will be reduced by any amounts required to be withheld by the
Company or the Depositary on account of taxes or otherwise
required pursuant to law, regulation or court process.
Record
Date
Whenever (i) any cash dividend or other cash distribution
shall become payable, any distribution other than cash shall be
made, or any rights, preferences or privileges shall be offered
with respect to the Preference Stock or (ii) the Depositary
shall receive notice of any meeting at which holders of
Preference Stock are entitled to vote or of which holders of
Preference Stock are entitled to notice, the Depositary shall in
each such instance fix a record date (which shall be the record
date fixed by the Company with respect to the Preference Stock)
for the determination of the holders of Depositary Receipts who
shall be entitled to (y) receive such dividend,
distribution, rights, preferences or privileges or the net
proceeds of such sale or (z) give instructions for the
exercise of voting rights at such meeting or receive notice of
such meeting.
8
Voting
Preference Stock
Upon receipt of notice of any meeting at which the holders of
Preference Stock are entitled to vote, the Depositary will mail
the information contained in such notice of meeting to the
record holders of Depositary Receipts. The record holders of
Depositary Receipts on the record date (which will be the same
date as the record date for the Preference Stock) will be
entitled to instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Preference Stock
represented by their respective Depositary Receipts. The
Depositary will endeavor insofar as practicable to vote or cause
to be voted the amount of Preference Stock represented by such
Depositary Receipts in accordance with such instructions, and
the Company has agreed to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to
do so. The Depositary will abstain from voting the Preference
Stock to the extent it does not receive specific instructions
from the holders of the Depositary Receipts.
Amendment
and Termination of Deposit Agreement
The form of the Depositary Receipts and any provisions of the
Deposit Agreement may at any time and from time to time be
amended or modified in any respect by agreement between the
Company and the Depositary. Any amendment which imposes any fees
or charges (other than taxes, fees and charges provided for in
the Deposit Agreement) on the holders of Depositary Receipts, or
which otherwise prejudices any substantial existing right of
holders of Depositary Receipts, will not become effective as to
outstanding Depositary Receipts until the expiration of
90 days after notice of such amendment shall have been
given to the record holders of outstanding Depositary Receipts.
Every holder of an outstanding Depositary Receipt at the time
any such amendment so becomes effective shall be deemed, by
continuing to hold such Depositary Receipt, to consent and agree
to such amendment and to be bound by the Deposit Agreement as
amended. In no event may any amendment impair the right of the
holder of any Depositary Receipt, subject to the conditions of
the Deposit Agreement, to surrender such Depositary Receipt and
receive the Preference Stock represented by such Depositary
Receipt, except in order to comply with mandatory provisions of
applicable law.
Whenever so directed by the Company, the Depositary will
terminate the Deposit Agreement by mailing notice of such
termination to the record holders of all Depositary Receipts
then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement if at any time 60 days
shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted
its appointment. If any Depositary Receipts remain outstanding
after the date of termination, the Depositary will discontinue
the transfer of Depositary Receipts, will suspend the
distribution of dividends to the holders of Depositary Receipts
and will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit
Agreement except that the Depositary will continue to collect
dividends and other distributions pertaining to the Preference
Stock and deliver Preference Stock together with such dividends
and distributions and the net proceeds of any sale of any
rights, preferences, privileges or other property in exchange
for Depositary Receipts surrendered. At any time after the
expiration of two years from the date of termination, the
Depositary may sell the Preference Stock then held by it at
public or private sale at such place or places and upon such
terms as it deems proper and may thereafter hold the net
proceeds of any such sale, together with any other cash then
held by it, without liability for interest, for the pro rata
benefit of the holders of Depositary Receipts which have not
been surrendered. Any such moneys unclaimed by the holders of
Depositary Receipts more than two years from the date of
termination of the Deposit Agreement will, upon request of the
Company, be paid to it, and after such payment, the holders of
Depositary Receipts entitled to the funds so paid to the Company
shall look only to the Company for payment without interest. The
Company does not intend to terminate the Deposit Agreement or to
permit the resignation of the Depositary without appointing a
successor depositary.
Charges
of Depositary
The Company will pay all charges of the Depositary including
charges for the initial deposit of the Preference Stock and
delivery of Depositary Receipts and withdrawals of Preference
Stock by the holders of Depositary
9
Receipts, except for taxes (including transfer taxes, if any)
and such charges as are expressly provided in the Deposit
Agreement to be at the expense of the persons depositing
Preference Stock or holders of Depositary Receipts.
Miscellaneous
The Depositary will make available for inspection by holders of
Depositary Receipts at its corporate trust office any reports
and communications received from the Company which are made
generally available to the holders of Preference Stock by the
Company.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the Deposit
Agreement. The obligations of the Depositary and the Company
under the Deposit Agreement are limited to performance in good
faith of their duties under the Deposit Agreement, and they are
not obligated to prosecute or defend any legal proceeding in
respect of the Preference Stock, the Depositary Receipts or the
Depositary Shares unless satisfactory indemnity is furnished.
The Depositary and the Company may rely upon advice of or
information from counsel, accountants or other persons believed
to be competent and on documents believed to be genuine.
The Depositary may at any time resign or be removed by the
Company, effective upon the acceptance by its successor of its
appointment.
DESCRIPTION
OF THE SENIOR NOTES
Set forth below is a description of the general terms of the
Senior Notes. The following description does not purport to be
complete and is subject to, and is qualified in its entirety by
reference to, the Senior Note Indenture, dated as of
January 1, 1998, between the Company and The Bank of New
York (as successor to JPMorgan Chase Bank, N.A. (formerly known
as The Chase Manhattan Bank)), as trustee (the “Senior Note
Indenture Trustee”), as to be supplemented by a
supplemental indenture to the Senior Note Indenture establishing
the Senior Notes of each series (the Senior Note Indenture, as
so supplemented, is referred to as the “Senior Note
Indenture”), the forms of which are filed as exhibits to
the Registration Statement of which this Prospectus forms a
part. The terms of the Senior Notes will include those stated in
the Senior Note Indenture and those made a part of the Senior
Note Indenture by reference to the Trust Indenture Act of 1939,
as amended (the “1939 Act”). Certain capitalized
terms used in this Prospectus are defined in the Senior Note
Indenture.
General
The Senior Notes will be issued as unsecured senior debt
securities under the Senior Note Indenture and will rank equally
with all other unsecured and unsubordinated debt of the Company.
The Senior Notes will be effectively subordinated to all secured
debt of the Company, aggregating approximately $74,000,000
outstanding at December 31, 2006. The Senior Note Indenture
does not limit the aggregate principal amount of Senior Notes
that may be issued under the Senior Note Indenture and provides
that Senior Notes may be issued from time to time in one or more
series pursuant to an indenture supplemental to the Senior Note
Indenture. The Senior Note Indenture gives the Company the
ability to reopen a previous issue of Senior Notes and issue
additional Senior Notes of such series, unless otherwise
provided.
Reference is made to the Prospectus Supplement that will
accompany this Prospectus for the following terms of the series
of Senior Notes being offered by such Prospectus Supplement:
(i) the title of such Senior Notes; (ii) any limit on
the aggregate principal amount of such Senior Notes;
(iii) the date or dates on which the principal of such
Senior Notes is payable; (iv) the rate or rates at which
such Senior Notes shall bear interest, if any, or any method by
which such rate or rates will be determined, the date or dates
from which such interest will accrue, the interest payment dates
on which such interest shall be payable, and the regular record
date for the interest payable on any interest payment date;
(v) the place or places where the principal of (and
premium, if any) and interest, if any, on such Senior Notes
shall be payable; (vi) the period or periods within which,
the price or prices at which and the terms and conditions on
which such Senior Notes may be redeemed, in whole or in part, at
the option of the Company or at the option of the holder prior
to their maturity; (vii) the obligation, if any, of the
Company to redeem
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or purchase such Senior Notes; (viii) the denominations in
which such Senior Notes shall be issuable; (ix) if other
than the principal amount of such Senior Notes, the portion of
the principal amount of such Senior Notes which shall be payable
upon declaration of acceleration of the maturity of such Senior
Notes; (x) any deletions from, modifications of or
additions to the Events of Default or covenants of the Company
as provided in the Senior Note Indenture pertaining to such
Senior Notes; (xi) whether such Senior Notes shall be
issued in whole or in part in the form of a Global Security; and
(xii) any other terms of such Senior Notes.
The Senior Note Indenture does not contain provisions that
afford holders of Senior Notes protection in the event of a
highly leveraged transaction involving the Company.
Events of
Default
The Senior Note Indenture provides that any one or more of the
following described events with respect to the Senior Notes of
any series, which has occurred and is continuing, constitutes an
“Event of Default” with respect to the Senior Notes of
such series:
(a) failure for 10 days to pay interest on the Senior
Notes of such series, when due on an interest payment date other
than at maturity or upon earlier redemption; or
(b) failure to pay principal or premium, if any, or
interest on the Senior Notes of such series when due at maturity
or upon earlier redemption; or
(c) failure for three Business Days to deposit any sinking
fund payment when due by the terms of a Senior Note of such
series; or
(d) failure to observe or perform any other covenant or
warranty of the Company in the Senior Note Indenture (other than
a covenant or warranty which has expressly been included in the
Senior Note Indenture solely for the benefit of one or more
series of Senior Notes other than such series) for 90 days
after written notice to the Company from the Senior Note
Indenture Trustee or the holders of at least 25% in principal
amount of the outstanding Senior Notes of such series; or
(e) certain events of bankruptcy, insolvency or
reorganization of the Company.
The holders of not less than a majority in aggregate outstanding
principal amount of the Senior Notes of any series have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Senior Note Indenture
Trustee with respect to the Senior Notes of such series. If a
Senior Note Indenture Event of Default occurs and is continuing
with respect to the Senior Notes of any series, then the Senior
Note Indenture Trustee or the holders of not less than 25% in
aggregate outstanding principal amount of the Senior Notes of
such series may declare the principal amount of the Senior Notes
due and payable immediately by notice in writing to the Company
(and to the Senior Note Indenture Trustee if given by the
holders), and upon any such declaration such principal amount
shall become immediately due and payable. At any time after such
a declaration of acceleration with respect to the Senior Notes
of any series has been made and before a judgment or decree for
payment of the money due has been obtained as provided in
Article Five of the Senior Note Indenture, the holders of not
less than a majority in aggregate outstanding principal amount
of the Senior Notes of such series may rescind and annul such
declaration and its consequences if the default has been cured
or waived and the Company has paid or deposited with the Senior
Note Indenture Trustee a sum sufficient to pay all matured
installments of interest and principal due otherwise than by
acceleration and all sums paid or advanced by the Senior Note
Indenture Trustee, including reasonable compensation and
expenses of the Senior Note Indenture Trustee.
The holders of not less than a majority in aggregate outstanding
principal amount of the Senior Notes of any series may, on
behalf of the holders of all the Senior Notes of such series,
waive any past default with respect to such series, except
(i) a default in the payment of principal or interest or
(ii) a default in respect of a covenant or provision which
under Article Nine of the Senior Note Indenture cannot be
modified or amended without the consent of the holder of each
outstanding Senior Note of such series affected.
11
Registration
and Transfer
The Company shall not be required to (i) issue, register
the transfer of or exchange Senior Notes of any series during a
period of 15 days immediately preceding the date notice is given
identifying the Senior Notes of such series called for
redemption, or (ii) issue, register the transfer of or
exchange any Senior Notes so selected for redemption, in whole
or in part, except the unredeemed portion of any Senior Note
being redeemed in part.
Payment
and Paying Agent
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of any Senior Notes will be
made only against surrender to the Paying Agent of such Senior
Notes. Principal of and interest on Senior Notes will be
payable, subject to any applicable laws and regulations, at the
office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that, at the option of the
Company, payment of any interest may be made by wire transfer or
by check mailed to the address of the person entitled to an
interest payment as such address shall appear in the Security
Register with respect to the Senior Notes. Payment of interest
on Senior Notes on any interest payment date will be made to the
person in whose name the Senior Notes (or predecessor security)
are registered at the close of business on the record date for
such interest payment.
Unless otherwise indicated in an applicable Prospectus
Supplement, the Senior Note Indenture Trustee will act as Paying
Agent with respect to the Senior Notes. The Company may at any
time designate additional Paying Agents or rescind the
designation of any Paying Agents or approve a change in the
office through which any Paying Agent acts.
All moneys paid by the Company to a Paying Agent for the payment
of the principal of or interest on the Senior Notes of any
series which remain unclaimed at the end of two years after such
principal or interest shall have become due and payable will be
repaid to the Company, and the holder of such Senior Notes will
from that time forward look only to the Company for payment of
such principal and interest.
Modification
The Senior Note Indenture contains provisions permitting the
Company and the Senior Note Indenture Trustee, with the consent
of the holders of not less than a majority in principal amount
of the outstanding Senior Notes of each series that is affected,
to modify the Senior Note Indenture or the rights of the holders
of the Senior Notes of such series; provided, that no such
modification may, without the consent of the holder of each
outstanding Senior Note that is affected, (i) change the
stated maturity of the principal of, or any installment of
principal of or interest on, any Senior Note, or reduce the
principal amount of any Senior Note or the rate of interest on
any Senior Note or any premium payable upon the redemption of
any Senior Note, or change the method of calculating the rate of
interest of any Senior Note, or impair the right to institute
suit for the enforcement of any such payment on or after the
stated maturity of any Senior Note (or, in the case of
redemption, on or after the redemption date), or
(ii) reduce the percentage of principal amount of the
outstanding Senior Notes of any series, the consent of whose
holders is required for any such supplemental indenture, or the
consent of whose holders is required for any waiver (of
compliance with certain provisions of the Senior Note Indenture
or certain defaults under the Senior Note Indenture and their
consequences) provided for in the Senior Note Indenture, or
(iii) modify any of the provisions of the Senior Note
Indenture relating to supplemental indentures, waiver of past
defaults, or waiver of certain covenants, except to increase any
such percentage or to provide that certain other provisions of
the Senior Note Indenture cannot be modified or waived without
the consent of the holder of each outstanding Senior Note that
is affected.
In addition, the Company and the Senior Note Indenture Trustee
may execute, without the consent of any holders of Senior Notes,
any supplemental indenture for certain other usual purposes,
including the creation of any new series of senior notes.
Consolidation,
Merger and Sale
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any person, unless
(1) such other corporation or person is a
12
corporation organized and existing under the laws of the United
States, any state in the United States or the District of
Columbia and such other corporation or person expressly assumes,
by supplemental indenture executed and delivered to the Senior
Note Indenture Trustee, the payment of the principal of (and
premium, if any) and interest on all the Senior Notes and the
performance of every covenant of the Senior Note Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transactions,
no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have
happened and be continuing; and (3) the Company has
delivered to the Senior Note Indenture Trustee an officers’
certificate and an opinion of counsel, each stating that such
transaction complies with the provisions of the Senior Note
Indenture governing consolidation, merger, conveyance, transfer
or lease and that all conditions precedent to the transaction
have been complied with.
Information
Concerning the Senior Note Indenture Trustee
The Senior Note Indenture Trustee, prior to an Event of Default
with respect to Senior Notes of any series, undertakes to
perform, with respect to Senior Notes of such series, only such
duties as are specifically set forth in the Senior Note
Indenture and, in case an Event of Default with respect to
Senior Notes of any series has occurred and is continuing, shall
exercise, with respect to Senior Notes of such series, the same
degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provision,
the Senior Note Indenture Trustee is under no obligation to
exercise any of the powers vested in it by the Senior Note
Indenture at the request of any holder of Senior Notes of any
series, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be
incurred by the Senior Note Indenture Trustee. The Senior Note
Indenture Trustee is not required to expend or risk its own
funds or otherwise incur any financial liability in the
performance of its duties if the Senior Note Indenture Trustee
reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
The Bank of New York, the Senior Note Indenture Trustee, also
serves as Subordinated Note Indenture Trustee. The Company and
certain of its affiliates maintain deposit accounts and banking
relationships with The Bank of New York. The Bank of New York
and certain of its affiliates also serve as trustee under other
indentures pursuant to which securities of the Company or
certain affiliates of the Company are outstanding.
Governing
Law
The Senior Note Indenture and the Senior Notes will be governed
by, and construed in accordance with, the internal laws of the
State of New York.
Miscellaneous
The Company will have the right at all times to assign any of
its rights or obligations under the Senior Note Indenture to a
direct or indirect wholly-owned subsidiary of the Company;
provided, that, in the event of any such assignment, the Company
will remain primarily liable for all such obligations. Subject
to the foregoing, the Senior Note Indenture will be binding upon
and inure to the benefit of the parties to the Senior Note
Indenture and their respective successors and assigns.
DESCRIPTION
OF THE JUNIOR SUBORDINATED NOTES
Set forth below is a description of the general terms of the
Junior Subordinated Notes. The following description does not
purport to be complete and is subject to, and is qualified in
its entirety by reference to, the Subordinated Note Indenture,
dated as of June 1, 1997, between the Company and The Bank
of New York (as successor to JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank)), as trustee (the
“Subordinated Note Indenture Trustee”), as to be
supplemented by a supplemental indenture to the Subordinated
Note Indenture establishing the Junior Subordinated Notes of
each series (the Subordinated Note Indenture, as so
supplemented, is referred to as the “Subordinated Note
Indenture”), the forms of which are filed as exhibits to
the Registration Statement of which this Prospectus forms a
part. The terms of the Junior Subordinated Notes will include
those stated in the Subordinated Note Indenture and those made a
part of the Subordinated Note Indenture
13
by reference to the 1939 Act. Certain capitalized terms used in
this Prospectus are defined in the Subordinated Note Indenture.
General
The Junior Subordinated Notes will be issued as unsecured junior
subordinated debt securities under the Subordinated Note
Indenture. The Subordinated Note Indenture does not limit the
aggregate principal amount of Junior Subordinated Notes that may
be issued under the Subordinated Note Indenture and provides
that Junior Subordinated Notes may be issued from time to time
in one or more series pursuant to an indenture supplemental to
the Subordinated Note Indenture. The Subordinated Note Indenture
gives the Company the ability to reopen a previous issue of
Junior Subordinated Notes and issue additional Junior
Subordinated Notes of such series, unless otherwise provided.
Reference is made to the Prospectus Supplement that will
accompany this Prospectus for the following terms of the series
of Junior Subordinated Notes being offered by such Prospectus
Supplement: (i) the title of such Junior Subordinated
Notes; (ii) any limit on the aggregate principal amount of
such Junior Subordinated Notes; (iii) the date or dates on
which the principal of such Junior Subordinated Notes is
payable; (iv) the rate or rates at which such Junior
Subordinated Notes shall bear interest, if any, or any method by
which such rate or rates will be determined, the date or dates
from which such interest will accrue, the interest payment dates
on which such interest shall be payable, and the regular record
date for the interest payable on any interest payment date;
(v) the place or places where the principal of (and
premium, if any) and interest, if any, on such Junior
Subordinated Notes shall be payable; (vi) the period or
periods within which, the price or prices at which and the terms
and conditions on which such Junior Subordinated Notes may be
redeemed, in whole or in part, at the option of the Company or
at the option of the holder prior to their maturity;
(vii) the obligation, if any, of the Company to redeem or
purchase such Junior Subordinated Notes; (viii) the
denominations in which such Junior Subordinated Notes shall be
issuable; (ix) if other than the principal amount of the
Junior Subordinated Notes, the portion of the principal amount
of such Junior Subordinated Notes which shall be payable upon
declaration of acceleration of the maturity of such Junior
Subordinated Notes; (x) any deletions from, modifications
of or additions to the Events of Default or covenants of the
Company as provided in the Subordinated Note Indenture
pertaining to such Junior Subordinated Notes; (xi) whether
such Junior Subordinated Notes shall be issued in whole or in
part in the form of a Global Security; (xii) the right, if
any, of the Company to extend the interest payment periods of
such Junior Subordinated Notes; and (xiii) any other terms
of such Junior Subordinated Notes.
The Subordinated Note Indenture does not contain provisions that
afford holders of Junior Subordinated Notes protection in the
event of a highly leveraged transaction involving the Company.
Subordination
The Junior Subordinated Notes are subordinated and junior in
right of payment to all Senior Indebtedness (as defined below)
of the Company. No payment of principal of (including redemption
payments, if any), or premium, if any, or interest on (including
Additional Interest (as defined below)) the Junior Subordinated
Notes may be made if (a) any Senior Indebtedness is not
paid when due and any applicable grace period with respect to
such default has ended with such default not being cured or
waived or otherwise ceasing to exist, or (b) the maturity
of any Senior Indebtedness has been accelerated because of a
default, or (c) notice has been given of the exercise of an
option to require repayment, mandatory payment or prepayment or
otherwise. Upon any payment or distribution of assets of the
Company to creditors upon any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of
creditors, marshalling of assets or liabilities, or any
bankruptcy, insolvency or similar proceedings of the Company,
the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness before the holders of the
Junior Subordinated Notes are entitled to receive or retain any
payment or distribution. Subject to the prior payment of all
Senior Indebtedness, the rights of the holders of the Junior
Subordinated Notes will be subrogated to the rights of the
holders of Senior Indebtedness to receive payments and
distributions applicable to such Senior Indebtedness until all
amounts owing on the Junior Subordinated Notes are paid in full.
14
The term “Senior Indebtedness” means, with respect to
the Company, (i) any payment due in respect of indebtedness
of the Company, whether outstanding at the date of execution of
the Subordinated Note Indenture or incurred, created or assumed
after such date, (a) in respect of money borrowed
(including any financial derivative, hedging or futures contract
or similar instrument) and (b) evidenced by securities,
debentures, bonds, notes or other similar instruments issued by
the Company that, by their terms, are senior or senior
subordinated debt securities including, without limitation, all
obligations under its indentures with various trustees;
(ii) all capital lease obligations; (iii) all
obligations issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations
of the Company under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course
of business and long-term purchase obligations); (iv) all
obligations for the reimbursement of any letter of credit,
banker’s acceptance, security purchase facility or similar
credit transaction; (v) all obligations of the type referred to
in clauses (i) through (iv) above of other persons the
payment of which the Company is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations
of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of
the Company (whether or not such obligation is assumed by the
Company), except for (1) any such indebtedness that is by
its terms subordinated to or that ranks equally with the Junior
Subordinated Notes and (2) any unsecured indebtedness
between or among the Company or its affiliates. Such Senior
Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of the subordination provisions
contained in the Subordinated Note Indenture irrespective of any
amendment, modification or waiver of any term of such Senior
Indebtedness.
The Subordinated Note Indenture does not limit the aggregate
amount of Senior Indebtedness that may be issued by the Company.
As of December 31, 2006, Senior Indebtedness of the Company
aggregated approximately $5,283,000,000.
Additional
Interest
“Additional Interest” is defined in the Subordinated
Note Indenture as any interest due and not paid on an interest
payment date, together with interest on such interest due from
such interest payment date to the date of payment, compounded
quarterly, on each interest payment date.
Certain
Covenants
The Company covenants in the Subordinated Note Indenture, for
the benefit of the holders of each series of Junior Subordinated
Notes, that, if at such time the Company shall have given notice
of its election to extend an interest payment period for such
series of Junior Subordinated Notes and such extension shall be
continuing, or if at such time an Event of Default under the
Subordinated Note Indenture with respect to such series of
Junior Subordinated Notes shall have occurred and be continuing,
(a) the Company shall not declare or pay any dividend or
make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of
its capital stock and (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees)
issued by the Company which rank equally with or junior to the
Junior Subordinated Notes. None of the foregoing, however, shall
restrict (i) any of the actions described in the preceding
sentence resulting from any reclassification of the
Company’s capital stock or the exchange or conversion of
one class or series of the Company’s capital stock for
another class or series of the Company’s capital stock or
(ii) the purchase of fractional interests in shares of the
Company’s capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being
converted or exchanged.
Events of
Default
The Subordinated Note Indenture provides that any one or more of
the following described events with respect to the Junior
Subordinated Notes of any series, which has occurred and is
continuing, constitutes an “Event of Default” with
respect to the Junior Subordinated Notes of such series:
(a) failure for 10 days to pay interest on the Junior
Subordinated Notes of such series, including any Additional
Interest (as defined in the definition of Additional Interest in
the Subordinated Note Indenture) on such unpaid interest, when
due on an interest payment date other than at maturity or upon
earlier redemption;
15
provided, however, that a valid extension of the interest
payment period by the Company shall not constitute a default in
the payment of interest for this purpose; or
(b) failure to pay principal or premium, if any, or
interest, including Additional Interest (as defined in the
definition of Additional Interest in the Subordinated Note
Indenture), on the Junior Subordinated Notes of such series when
due at maturity or upon earlier redemption; or
(c) failure for three Business Days to deposit any sinking
fund payment when due by the terms of a Junior Subordinated Note
of such series; or
(d) failure to observe or perform any other covenant or
warranty of the Company in the Subordinated Note Indenture
(other than a covenant or warranty which has expressly been
included in the Subordinated Note Indenture solely for the
benefit of one or more series of Junior Subordinated Notes other
than such series) for 90 days after written notice to the
Company from the Subordinated Note Indenture Trustee or the
holders of at least 25% in principal amount of the outstanding
Junior Subordinated Notes of such series; or
(e) certain events of bankruptcy, insolvency or
reorganization of the Company.
The holders of not less than a majority in aggregate outstanding
principal amount of the Junior Subordinated Notes of any series
have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Subordinated Note Indenture Trustee with respect to the Junior
Subordinated Notes of such series. If a Subordinated Note
Indenture Event of Default occurs and is continuing with respect
to the Junior Subordinated Notes of any series, then the
Subordinated Note Indenture Trustee or the holders of not less
than 25% in aggregate outstanding principal amount of the Junior
Subordinated Notes of such series may declare the principal
amount of the Junior Subordinated Notes due and payable
immediately by notice in writing to the Company (and to the
Subordinated Note Indenture Trustee if given by the holders),
and upon any such declaration such principal amount shall become
immediately due and payable. At any time after such a
declaration of acceleration with respect to the Junior
Subordinated Notes of any series has been made and before a
judgment or decree for payment of the money due has been
obtained as provided in Article Five of the Subordinated Note
Indenture, the holders of not less than a majority in aggregate
outstanding principal amount of the Junior Subordinated Notes of
such series may rescind and annul such declaration and its
consequences if the default has been cured or waived and the
Company has paid or deposited with the Subordinated Note
Indenture Trustee a sum sufficient to pay all matured
installments of interest (including any Additional Interest) and
principal due otherwise than by acceleration and all sums paid
or advanced by the Subordinated Note Indenture Trustee,
including reasonable compensation and expenses of the
Subordinated Note Indenture Trustee.
The holders of not less than a majority in aggregate outstanding
principal amount of the Junior Subordinated Notes of any series
may, on behalf of the holders of all the Junior Subordinated
Notes of such series, waive any past default with respect to
such series, except (i) a default in the payment of
principal or interest or (ii) a default in respect of a
covenant or provision which under Article Nine of the
Subordinated Note Indenture cannot be modified or amended
without the consent of the holder of each outstanding Junior
Subordinated Note of such series affected.
Registration
and Transfer
The Company shall not be required to (i) issue, register
the transfer of or exchange Junior Subordinated Notes of any
series during a period of 15 days immediately preceding the date
notice is given identifying the Junior Subordinated Notes of
such series called for redemption or (ii) issue, register
the transfer of or exchange any Junior Subordinated Notes so
selected for redemption, in whole or in part, except the
unredeemed portion of any Junior Subordinated Note being
redeemed in part.
Payment
and Paying Agent
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of any Junior Subordinated
Notes will be made only against surrender to the Paying Agent of
such Junior Subordinated Notes. Principal of and interest on
Junior Subordinated Notes will be payable, subject to any
applicable laws and regulations, at the office of such Paying
Agent or Paying Agents as the Company may designate from time to
time,
16
except that, at the option of the Company, payment of any
interest may be made by wire transfer or by check mailed to the
address of the person entitled to an interest payment as such
address shall appear in the Security Register with respect to
the Junior Subordinated Notes. Payment of interest on Junior
Subordinated Notes on any interest payment date will be made to
the person in whose name the Junior Subordinated Notes (or
predecessor security) are registered at the close of business on
the record date for such interest payment.
Unless otherwise indicated in an applicable Prospectus
Supplement, the Subordinated Note Indenture Trustee will act as
Paying Agent with respect to the Junior Subordinated Notes. The
Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agents or approve a change
in the office through which any Paying Agent acts.
All moneys paid by the Company to a Paying Agent for the payment
of the principal of or interest on the Junior Subordinated Notes
of any series which remain unclaimed at the end of two years
after such principal or interest shall have become due and
payable will be repaid to the Company, and the holder of such
Junior Subordinated Notes will from that time forward look only
to the Company for payment of such principal and interest.
Modification
The Subordinated Note Indenture contains provisions permitting
the Company and the Subordinated Note Indenture Trustee, with
the consent of the holders of not less than a majority in
principal amount of the outstanding Junior Subordinated Notes of
each series that is affected, to modify the Subordinated Note
Indenture or the rights of the holders of the Junior
Subordinated Notes of such series; provided, that no such
modification may, without the consent of the holder of each
outstanding Junior Subordinated Note that is affected,
(i) change the stated maturity of the principal of, or any
installment of principal of or interest on, any Junior
Subordinated Note, or reduce the principal amount of any Junior
Subordinated Note or the rate of interest (including Additional
Interest) of any Junior Subordinated Note or any premium payable
upon the redemption of any Junior Subordinated Note, or change
the method of calculating the rate of interest on any Junior
Subordinated Note, or impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity
of any Junior Subordinated Note (or, in the case of redemption,
on or after the redemption date), or (ii) reduce the
percentage of principal amount of the outstanding Junior
Subordinated Notes of any series, the consent of whose holders
is required for any such supplemental indenture, or the consent
of whose holders is required for any waiver (of compliance with
certain provisions of the Subordinated Note Indenture or certain
defaults under the Subordinated Note Indenture and their
consequences) provided for in the Subordinated Note Indenture,
or (iii) modify any of the provisions of the Subordinated
Note Indenture relating to supplemental indentures, waiver of
past defaults, or waiver of certain covenants, except to
increase any such percentage or to provide that certain other
provisions of the Subordinated Note Indenture cannot be modified
or waived without the consent of the holder of each outstanding
Junior Subordinated Note that is affected, or (iv) modify
the provisions of the Subordinated Note Indenture with respect
to the subordination of the Junior Subordinated Notes in a
manner adverse to such holder.
In addition, the Company and the Subordinated Note Indenture
Trustee may execute, without the consent of any holders of
Junior Subordinated Notes, any supplemental indenture for
certain other usual purposes, including the creation of any new
series of junior subordinated notes.
Consolidation,
Merger and Sale
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any person, unless
(1) such other corporation or person is a corporation
organized and existing under the laws of the United States, any
state of the United States or the District of Columbia and such
other corporation or person expressly assumes, by supplemental
indenture executed and delivered to the Subordinated Note
Indenture Trustee, the payment of the principal of (and premium,
if any) and interest (including Additional Interest) on all the
Junior Subordinated Notes and the performance of every covenant
of the Subordinated Note Indenture on the part of the Company to
be performed or observed; (2) immediately after giving
effect to such transactions, no Event of Default, and no event
which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to
17
the Subordinated Note Indenture Trustee an officers’
certificate and an opinion of counsel, each stating that such
transaction complies with the provisions of the Subordinated
Note Indenture governing consolidation, merger, conveyance,
transfer or lease and that all conditions precedent to the
transaction have been complied with.
Information
Concerning the Subordinated Note Indenture Trustee
The Subordinated Note Indenture Trustee, prior to an Event of
Default with respect to Junior Subordinated Notes of any series,
undertakes to perform, with respect to Junior Subordinated Notes
of such series, only such duties as are specifically set forth
in the Subordinated Note Indenture and, in case an Event of
Default with respect to Junior Subordinated Notes of any series
has occurred and is continuing, shall exercise, with respect to
Junior Subordinated Notes of such series, the same degree of
care as a prudent individual would exercise in the conduct of
his or her own affairs. Subject to such provision, the
Subordinated Note Indenture Trustee is under no obligation to
exercise any of the powers vested in it by the Subordinated Note
Indenture at the request of any holder of Junior Subordinated
Notes of any series, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might
be incurred by the Subordinated Note Indenture Trustee. The
Subordinated Note Indenture Trustee is not required to expend or
risk its own funds or otherwise incur any financial liability in
the performance of its duties if the Subordinated Note Indenture
Trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it.
The Bank of New York, the Subordinated Note Indenture Trustee,
also serves as Senior Note Indenture Trustee. The Company and
certain of its affiliates maintain deposit accounts and banking
relationships with The Bank of New York, and certain of its
affiliates also serve as trustee under other indentures pursuant
to which securities of the Company or certain affiliates of the
Company are outstanding.
Governing
Law
The Subordinated Note Indenture and the Junior Subordinated
Notes will be governed by, and construed in accordance with, the
internal laws of the State of New York.
Miscellaneous
The Company will have the right at all times to assign any of
its rights or obligations under the Subordinated Note Indenture
to a direct or indirect wholly-owned subsidiary of the Company;
provided, that, in the event of any such assignment, the Company
will remain primarily liable for all such obligations. Subject
to the foregoing, the Subordinated Note Indenture will be
binding upon and inure to the benefit of the parties to the
Subordinated Note Indenture and their respective successors and
assigns.
PLAN OF
DISTRIBUTION
The Company may sell the new Stock, the Preference Stock, the
Depositary Shares, the Senior Notes and the Junior Subordinated
Notes in one or more of the following ways from time to time:
(i) to underwriters for resale to the public or to
institutional investors; (ii) directly to institutional
investors; or (iii) through agents to the public or to
institutional investors. The Prospectus Supplement with respect
to each series of new Stock, Preference Stock, Depositary
Shares, Senior Notes or Junior Subordinated Notes will set forth
the terms of the offering of such new Stock, Preference Stock,
Depositary Shares, Senior Notes or Junior Subordinated Notes,
including the name or names of any underwriters or agents, the
purchase price of such new Stock, Preference Stock, Depositary
Shares, Senior Notes or Junior Subordinated Notes and the
proceeds to the Company from such sale, any underwriting
discounts or agency fees and other items constituting
underwriters’ or agents’ compensation, any initial
public offering price, any discounts or concessions allowed or
reallowed or paid to dealers and any securities exchange on
which such new Stock, Preference Stock, Depositary Shares,
Senior Notes or Junior Subordinated Notes may be listed.
If underwriters participate in the sale, such new Stock,
Preference Stock, Depositary Shares, Senior Notes or Junior
Subordinated Notes will be acquired by the underwriters for
their own account and may be resold from time
18
to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying
prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters to purchase any series of new
Stock, Preference Stock, Depositary Shares, Senior Notes or
Junior Subordinated Notes will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all
of such series of new Stock, Preference Stock, Depositary
Shares, Senior Notes or Junior Subordinated Notes, if any are
purchased.
Underwriters and agents may be entitled under agreements entered
into with the Company to indemnification against certain civil
liabilities, including liabilities under the 1933 Act.
Underwriters and agents may engage in transactions with, or
perform services for, the Company in the ordinary course of
business.
Each series of new Stock, Preference Stock, Depositary Shares,
Senior Notes or Junior Subordinated Notes will be a new issue of
securities and will have no established trading market. Any
underwriters to whom new Stock, Preference Stock, Depositary
Shares, Senior Notes or Junior Subordinated Notes are sold for
public offering and sale may make a market in such new Stock,
Preference Stock, Depositary Shares, Senior Notes or Junior
Subordinated Notes but such underwriters will not be obligated
to do so and may discontinue any market making at any time
without notice. The new Stock, the Preference Stock, the
Depositary Shares, the Senior Notes or the Junior Subordinated
Notes may or may not be listed on a national securities exchange.
LEGAL
MATTERS
The validity of the new Stock, the Preference Stock, the
Depositary Shares, the Senior Notes and the Junior Subordinated
Notes and certain matters relating to such securities will be
passed upon on behalf of the Company by Troutman
Sanders LLP, Atlanta, Georgia. Certain legal matters will
be passed upon for the Underwriters by Dewey Ballantine LLP, New
York, New York. From time to time, Dewey Ballantine LLP acts as
counsel to affiliates of the Company for some matters.
EXPERTS
The financial statements and the related financial statement
schedule incorporated in this Prospectus by reference from the
Company’s Annual Report on
Form 10-K
for the year ended December 31, 2006 have been audited by
Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated
in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
19
$500,000,000
Series 2009A 5.95% Senior
Notes
due February 1,
2039
PROSPECTUS SUPPLEMENT
February 4, 2009
Joint Book-Running Managers
Barclays Capital
Mitsubishi UFJ Securities
SunTrust Robinson Humphrey
Wachovia Securities
Co-Managers
CALYON
Utendahl Capital Group,
LLC