-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OJ+wEhqjGKI1NvGEMAOMAG9UPdt4kmbtRm8KOBc1I2QWd0WfP3Y7rYQNwnpuU8OS lF8jm+Q61UdGAHK4UqQPNA== 0000092122-04-000141.txt : 20040317 0000092122-04-000141.hdr.sgml : 20040317 20040317154458 ACCESSION NUMBER: 0000092122-04-000141 CONFORMED SUBMISSION TYPE: U-1 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20040317 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN CO CENTRAL INDEX KEY: 0000092122 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 580690070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U-1 SEC ACT: 1935 Act SEC FILE NUMBER: 070-10215 FILM NUMBER: 04675519 BUSINESS ADDRESS: STREET 1: 270 PEACHTREE ST CITY: ATLANTA STATE: GA ZIP: 30303 BUSINESS PHONE: 4045065000 MAIL ADDRESS: STREET 1: 270 PEACHTREE STREET CITY: ATLANTA STATE: GA ZIP: 30303 U-1 1 odspformu-1.txt SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM U-1 APPLICATION OR DECLARATION under The Public Utility Holding Company Act of 1935 THE SOUTHERN COMPANY 270 Peachtree Street, N.W. Atlanta, Georgia 30303 (Name of company or companies filing this statement and addresses of principal executive offices) THE SOUTHERN COMPANY (Name of top registered holding company parent of each applicant or declarant) Tommy Chisholm, Secretary The Southern Company 270 Peachtree Street, N.W. Atlanta, Georgia 30303 (Name and addresses of agents for service) The Commission is requested to mail signed copies of all orders, notices and communications to the above agent for service and to: Thomas A. Fanning Executive Vice President, Treasurer and Chief Financial Officer The Southern Company 270 Peachtree Street, N.W. Atlanta, Georgia 30303 Walter M. Beale, Jr., Esq. John D. McLanahan, Esq. Balch & Bingham LLP Troutman Sanders LLP 1901 Sixth Avenue North 600 Peachtree Street, N.E. Suite 2600 Suite 5200 Birmingham, Alabama 35203-2628 Atlanta, Georgia 30308-2216 INFORMATION REQUIRED Item 1. Description of Proposed Transactions 1.1 The Southern Company ("Southern"), a registered holding company under the Public Utility Holding Company Act of 1935, as amended (the "Act"), proposes, from time to time through May 26, 2014, to issue shares of its common stock, par value $5.00 per share ("Common Stock"), pursuant to the Outside Directors Stock Plan for Directors of The Southern Company and Certain of its Subsidiaries (the "Plan"), as described herein. The Plan is a consolidation of the Outside Directors Stock Plan for The Southern Company ("Southern Stock Plan") and the Outside Directors Stock Plan for Subsidiaries of The Southern Company ("Subsidiaries Stock Plan"). The Board of Directors of Southern has adopted the Plan, subject to stockholder approval. The purpose of the Plan is to provide a mechanism for non-employee directors to automatically increase their ownership of Common Stock and thereby further align their interest with those of Southern's stockholders. The Plan will be administered by Southern's Governance Committee (the "Committee"). The Committee will have exclusive authority to interpret the Plan. The Plan provides for a portion of the retainer fee for non-employee directors of Southern and any subsidiary of Southern which the Board of Directors of Southern determines to bring under the Plan and which shall adopt the Plan (the "Subsidiaries") to be paid in unrestricted shares of Common Stock and permits each non-employee director to elect to have all or a portion of the remainder of the director fee to be paid in shares of Common Stock instead of cash. Southern expects that the initial Subsidiaries will be Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company and Savannah Electric and Power Company and that the approximate number of participants under the Plan will initially be 50. The portion of the director fee paid in Common Stock to Southern's non-employee directors pursuant to the Plan will automatically be deferred in accordance with the terms of the deferred compensation plan maintained by Southern. The non-employee directors of each Subsidiary may elect to have the portion of the director fee paid in Common Stock pursuant to the Plan to be deferred in accordance with the terms of the deferred compensation plan maintained by such Subsidiary for its directors. 1,000,000 shares of Common Stock and the unissued shares of Common Stock previously authorized and registered for issuance under the Southern Stock Plan and the Subsidiaries Stock Plan (approximately 1,700,000 shares) will be available for payment to the participants under the Plan. The Board of Directors of Southern may terminate or amend the Plan at any time except that without shareholder approval no amendment may be made which would, absent such shareholder approval, disqualify the Plan for coverage under Rule 16b-3, as promulgated by the Commission under the Securities and Exchange Act of 1934, as amended. The Plan will terminate on May 26, 2014, unless terminated sooner by the Board of Directors. 1.2 Southern further proposes to submit the Plan for consideration and action by its stockholders at the annual meeting of such stockholders to be held on May 26, 2004, and in connection therewith, to solicit proxies from its stockholders. The material to be used in connection with such solicitation in respect of the Plan will be substantially as set forth in Exhibits G-1, G-2 and G-3 hereto. In addition, in the event that Southern considers it desirable to do so, it may employ professional proxy solicitors to assist in the solicitation of proxies and pay their expenses and compensation for such assistance which, it is estimated, will not exceed $10,000. Approval of the Plan requires the affirmative vote of the holders of a majority of the shares of Common Stock represented in person or by proxy at the annual meeting. Item. 2 Fees, Commissions and Expenses The estimated fees and expenses paid or incurred, or to be paid or incurred, directly or indirectly, in connection with the proposed transactions (including costs associated with the solicitation of proxies) are as follows: Cost of Proxy Solicitation including Printing, Postage and Mailing and Tabulation....................... $850,000 Services of Southern Company Services, Inc................. 20,000 Legal Fees 25,000 Miscellaneous.............................................. 15,000 -------- Total...................................................... $910,000 ======== Item 3. Applicable Statutory Provisions Sections 6(a), 7 and 12(e) of the Act and Rules 23, 24, 62 and 65 are applicable to the proposed transactions. Rule 53 Analysis: The proposed transactions are subject to Rule 53, which provides that, in determining whether to approve the issue or sale of a security for purposes of financing the acquisition of an exempt wholesale generator ("EWG") or foreign utility company ("FUCO"), the Commission shall not make certain adverse findings if the conditions set forth in Rule 53(a)(1) through (a)(4) are met, and are not otherwise made inapplicable by reason of the existence of any of the circumstances described in Rule 53(b). Southern currently meets all of the conditions of Rule 53(a), except for clause (1). At December 31, 2003, Southern's "aggregate investment," as defined in Rule 53(a)(1), in EWGs and FUCOs was approximately $304 billion, or approximately 5.83% of Southern's "consolidated retained earnings," also as defined in Rule 53(a)(1), as of December 31, 2003 ($5.213 billion).1 With respect to Rule 53(a)(1), however, the Commission has determined that Southern's financing of investments in EWGs and FUCOs in an amount greater than the amount that would otherwise be allowed by Rule 53(a)(1) would not have either of the adverse effects set forth in Rule 53(c). See The Southern Company, HCAR No. 16501, dated April 1, 1996 (the "Rule 53(c) Order"); and HCAR No. 26646, dated January 15, 1997 (order denying request for consideration and motion to stay). In addition, Southern has complied and will continue to comply with the record-keeping requirements of Rule 53(a)(2), the limitation under Rule 53(a)(3) on the use of operating company personnel to render services to EWGs and FUCOs and the requirements of Rule 53(a)(4) concerning the submission of copies of certain filings under the Act to retail rate regulatory commissions. Further, none of the circumstances described in Rule 53(b) has occurred. Finally, Rule 53(c) is, by its terms, inapplicable since the requirements of paragraphs 53(a) and 53(b) are satisfied. Item 4. Regulatory Approval The proposed transactions are not subject to the jurisdiction of any state commission or of any federal commission other than the Commission. ____________________________________ 1 Although Southern owns all of the equity in four indirect subsidiaries (EPZ Lease, Inc., Dutch Gas Lease, Inc., GMAOG Lease, Inc. and NUON Lease, Inc.), Southern has no direct or indirect investment or any aggregate investment within the meaning of Rule 53 in these FUCOs, including any direct or indirect guarantees or credit positions related to any capital or financing leases. (See Southern's Application on Form U-1, File No. 70-9727, for further information.) Southern has executed limited keep-well commitments whereby Southern would be required to make capital contributions to SE Finance Capital Corp. II, SE Finance Capital Corp. or SE Finance Company, Inc. in the event of a shortfall in the scheduled debt service resulting from certain changes in the payments due from Southern under the Southern Company Income Tax Allocation Agreement. The maximum potential capital contribution required under these commitments is the unamortized balance of the related loans, which totaled approximately $380 million as of December 31, 2003. Item 5. Procedure In order to give Southern sufficient time for the preparation and mailing of the proxy solicitation materials to its stockholders prior to the annual meeting to be held on May 26, 2004, Southern hereby requests that the Commission issue an order as soon as practicable, pursuant to Rule 62(d) under the Act, permitting the solicitation of proxies proposed herein. Southern hereby waives a recommended decision by a hearing officer or other responsible officer of the Commission, consents that the Division of Investment Management may assist in the preparation of the Commission's decision and/or order in this matter, unless such Division opposes the transactions proposed herein, and requests that there be no 30-day waiting period between the issuance of the Commission's order and the date on which it is to become effective. Southern hereby requests that it be permitted to file certificates of notification on a quarterly basis, within 45 days after the end of each calendar quarter. Item 6. Exhibits and Financial Statements (a) Exhibits. A-1 - Draft of Outside Directors Stock Plan for The Southern Company and its Subsidiaries. A-2 - Composite Certificate of Incorporation of Southern reflecting all amendments to date. (Designated in Registration No. 33-3546 as Exhibit 4(a), in Certificate of Notification, File No. 70-7341, as Exhibit A and in Certificate of Notification, File No. 70-8181, as Exhibit A). A-3 - By-Laws of Southern as amended effective February 17, 2003, and presently in effect. (Designated in Southern's Form 10-Q for the quarter ended June 30, 2003, File No. 1-3526, as Exhibit 3(a)(1)). B - None. C - None. D - None. E - None. F - Opinion of Balch & Bingham LLP. G-1 - Draft of notice of annual meeting of stockholders. G-2 - Draft of statement relating to the Plan to be included in the proxy statement for the annual meeting. G-3 - Draft of form of proxy for the annual meeting. H - Form of Notice and Order permitting the solicitation of proxies. Exhibits heretofore filed with the Commission and designated as set forth above are hereby incorporated herein by reference and made a part hereof with the same effect as if filed herewith. (b) Financial Statements. Financial statements are omitted since they are not deemed relevant or necessary for a proper disposition of the proposed transactions by the Commission. Item 7. Information as to Environmental Effects (a) In light of the nature of the proposed transactions as described in Item 1 hereof, the Commission's action in this matter will not constitute any major federal action significantly affecting the quality of the human environment. (b) No other federal agency has prepared or is preparing an environmental impact statement with regard to the proposed transactions. SIGNATURES Pursuant to the requirements of the Public Utility Holding Company Act of 1935, the undersigned company has duly caused this statement to be signed on its behalf by the undersigned thereunto duly authorized. Dated: March 17, 2004 THE SOUTHERN COMPANY By: /s/Tommy Chisholm Tommy Chisholm Secretary EX-99 3 xa-1.txt EXHIBIT A-1 Exhibit A-1 OUTSIDE DIRECTORS STOCK PLAN FOR THE SOUTHERN COMPANY AND ITS SUBSIDIARIES Effective May 26, 2004 OUTSIDE DIRECTORS STOCK PLAN FOR THE SOUTHERN COMPANY AND ITS SUBSIDIARIES Preamble Prior to the Effective Date (defined herein) of this Outside Directors Stock Plan for The Southern Company and Its Subsidiaries (the "Plan"), Directors (defined herein) participated in The Southern Company Outside Directors Stock Plan ("Southern Stock Plan") and the Outside Directors Stock Plan for Subsidiaries of the Southern Company ("Subsidiaries Stock Plan"). The purpose of this Plan is to update the stock compensation provisions to be in compliance with New York Stock Exchange rules and to merge the Southern Stock Plan and the Subsidiaries Stock Plan into this successor Plan in order to consolidate the statement of these compensation related obligations to Directors. Grants of stock to Directors prior to the Effective Date are governed by the terms of the Southern Stock Plan and the Subsidiaries Stock Plan, as applicable. The Company has reserved 1,000,000 (one million) authorized and registered shares of Stock (defined herein) that may be granted to Directors under the terms of this Plan. Additionally, any unissued shares of Stock previously authorized and registered for issuance under the Southern Stock Plan and Subsidiaries Stock Plan as of May 26, 2004 shall be transferred to the Plan, added to the reserved Stock and available for issuance to Participants under the Plan. This Plan shall expire on the tenth (10th) anniversary of the Effective Date. ARTICLE I - PURPOSE AND ADOPTION OF PLAN 1.1 Adoption. The Southern Company hereby adopts the Outside Directors Stock Plan for The Southern Company and Its Subsidiaries, effective May 26, 2004 subject to (a) the approval of the adoption by the Board of Directors of The Southern Company of the Outside Directors Stock Plan for The Southern Company and Its Subsidiaries by the shareholders of the Company at the annual meeting thereof to be held on May 26, 2004, and (b) the Company's receipt of the requisite approval of the issuance of the Stock pursuant to the Plan by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, as amended, and the rules thereunder. 1.2 Purpose. The Plan is designed to more closely align the interests of Directors with the interests of the shareholders of the Company through ownership of Stock. ARTICLE II - DEFINITIONS 2.1 "Affiliated Employer" shall mean any corporation which is a member of the controlled group of corporations of which the Company is the common parent corporation. 2.2 "Board of Directors" shall mean either the Southern Board or a System Company Board, as applicable to a Director. 2.3 "Commission" shall mean the Securities and Exchange Commission. 2.4 "Company" shall mean The Southern Company. 2.5 "Director" shall mean any person who is not an active employee of the Company or a System Company and who either serves on the Southern Board or a System Company Board. 2.6 "Effective Date" shall mean May 26, 2004. 2.7 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 2.8 "Market Value" shall mean the following: (a) With respect to Stock that is issued by the Company, the average of the high and low prices of the Stock, as published in the Wall Street Journal in its report of New York Stock Exchange composite transactions, on the date one day prior to the date of distribution as set forth in Section 4.3(a) of the Plan (or the average of the high and low sale prices on the trading day immediately preceding such determination date if the Stock is not traded on the date one day prior to the date of distribution). (b) With respect to Stock that is purchased on the open market, the actual purchase price paid for such Stock on the date of purchase. 2.9 "Participant" shall mean each Director who meets the requirements of Section 3.1 of the Plan. 2.10 "Plan" shall mean the Outside Directors Stock Plan for The Southern Company and Its Subsidiaries, as amended from time to time. 2.11 "Plan Administrator" shall mean the Governance Committee of the Southern Board. 2.12 "Plan Year" shall mean the calendar year. 2.13 "Retainer Fee" shall mean the annual rate of the fees paid to a Director as determined by the Board of Directors from time-to-time, but excluding reimbursements for expenses and any fees or compensation for (a) attendance at the meetings of the Board of Directors or any committee, (b) service on a committee, and (c) service at the request of the Board of Directors or a committee. 2.14 "Stock" shall mean the Company's common stock, par value $5.00 per share. 2.15 "Southern Board" shall mean the Board of Directors of The Southern Company. 2.16 "System Company" shall mean any Affiliated Employer of the Company which the Southern Board may from time to time determine to bring under the Plan and which shall adopt the Plan, and any successor of any of them. The System Companies that have adopted the Plan are listed in Schedule A, attached hereto, as such Schedule may be amended from time to time. 2.17 "System Company Board" shall mean the Board of Directors of a System Company. The masculine pronoun shall be construed to include the feminine pronoun and the singular shall include the plural, where the context so requires. ARTICLE III - ELIGIBILITY 3.1 Eligibility Requirements. (a) Except as provided in Subsections (b) and (c) below, each Director shall become a Participant in the Plan on the first date such Director serves on the Board of Directors. (b) For purposes of the 2004 Plan Year, a Director who is serving on a Board of Directors as of the Effective Date shall become a Participant in the Plan on the Effective Date, subject to (1) approval of the Plan by the shareholders of the Company at the annual meeting thereof to be held on May 26, 2004, and (2) the Company's receipt of the requisite approval of the Plan by the Commission under the Public Utility Holding Company Act of 1935, as amended, and the rules thereunder. ARTICLE IV - FORM AND TIME OF BENEFIT DISTRIBUTIONS 4.1 Stock Grant. Each Participant shall receive a portion of his annual Retainer Fee in Stock, with the remainder of such annual Retainer Fee and meeting attendance fees to be payable, in increments elected by the Director in accordance with Section 4.2 below, in cash or in Stock. The portion of the annual Retainer Fee required to be paid in Stock pursuant to this Section 4.1 may be denominated as dollars and/or shares and shall be stated in Schedule B, attached hereto, as such Schedule shall be amended from time to time. 4.2 Election to Determine Percentage or Amount of Compensation to be Paid in Stock. Each Participant shall have an opportunity to elect to have the non-Stock portion of his Retainer Fee paid in cash or Stock of the Company, or a combination thereof. Each Participant also shall have an opportunity to elect to have a portion of his meeting attendance fees payable in Stock. Such elections shall be made at the time specified by the Plan Administrator on a form provided to the Participant by the Plan Administrator. Nothing contained in this Section 4.2 shall be interpreted in such a manner as would disqualify the Plan from treatment as a "formula plan" under Rule 16b-3, as promulgated by the Commission under the Exchange Act, as that rule may be amended from time to time. 4.3 Amount and Date of Payment for Stock Compensation. (a) For any Plan Year in which a Director is a Participant for the full Plan Year, any Stock compensation due a Participant pursuant to Sections 4.1 and 4.2 above shall be payable on a quarterly basis, with the first such quarterly distribution being made on April 1 and succeeding quarterly distributions being made on July 1, October 1, and January 1. The amount of Stock to be distributed to a Participant shall initially be determined by first dividing the Participant's required and elected dollar amount of Stock compensation by four (4) and then dividing such quarterly quotient by the Market Value of the Stock. Subsequent distributions shall be based on such quarterly quotient divided by the Market Value of the Stock. (b) Notwithstanding the foregoing, for purposes of the 2004 Plan Year, for Participants who are serving as Directors as of the Effective Date, no Stock distributions shall be made under the Plan prior to receipt of the requisite approval described in Section 1.1; provided, however, that once the requisite approval of the Plan is received, the Stock distribution shall be made on the first quarterly date following such approval in accordance with Article IV. 4.4 Deferral of Retainer. The portion of the Retainer Fee required to be paid in Stock pursuant to Section 4.1 shall be deferred in accordance with the terms of the deferred compensation plan maintained by the Company or Subsidiary Company for its Directors. Directors also shall have the option to defer in such plan pursuant to its terms that portion of the Retainer Fee not required to be paid in Stock and meeting attendance fees. 4.5 Death Benefits. No grants of Stock shall be made to any beneficiary of a Participant following a Participant's death. ARTICLE V - ADMINISTRATION OF PLAN 5.1 Administrator. The general administration of the Plan shall be the responsibility of the Plan Administrator. 5.2 Powers. The Plan Administrator shall administer the Plan in accordance with its terms and shall have all powers necessary to carry out the provisions of the Plan more particularly set forth herein. It shall interpret the Plan and shall have the discretion to determine all questions arising in the administration, interpretation and application of the Plan, including any ambiguities contained herein or any questions of fact. Any such determination by it shall be conclusive and binding on all persons. It may adopt such regulations as it deems desirable for the conduct of its affairs. It may appoint such accountants, counsel, actuaries, specialists and other persons as it deems necessary or desirable in connection with the administration of this Plan, and shall be the agent for the service of process. 5.3 Duties of the Plan Administrator. (a) The Plan Administrator is responsible for the daily administration of the Plan. It may appoint other persons or entities to perform any of its fiduciary functions. The Plan Administrator and any such appointee may employ advisors and other persons necessary or convenient to help it carry out its duties, including its fiduciary duties. The Plan Administrator shall have the right to remove any such appointee from his position. Any person, group of persons or entity may serve in more than one fiduciary capacity. (b) The Plan Administrator shall maintain accurate and detailed records and accounts of Participants and of their rights under the Plan and of all receipts, disbursements, transfers and other transactions concerning the Plan. Such accounts, books and records relating thereto shall be open at all reasonable times to inspection and audit by persons designated by the Board of Directors. (c) The Plan Administrator shall take all steps necessary to ensure that the Plan complies with the law at all times. These steps shall include such items as the preparation and filing of all documents and forms required by any governmental agency; maintaining of adequate Participants' records; recording and transmission of all notices required to be given to Participants; the receipt and dissemination, if required, of all reports and information received relating to the Plan; securing of such fidelity bonds as may be required by law; and doing such other acts necessary for the proper administration of the Plan. The Plan Administrator shall keep a record of all of its proceedings and acts, and shall keep all such books of account, records and other data as may be necessary for proper administration of the Plan. 5.4 Indemnification. The System Companies and the Company shall indemnify the Plan Administrator against any and all claims, losses, damages, expenses and liability arising from any action or failure to act, except when the same is finally judicially determined to be due to gross negligence or willful misconduct. The System Companies and the Company may purchase at their own expense sufficient liability insurance for the Plan Administrator to cover any and all claims, losses, damages and expenses arising from any action or failure to act in connection with the execution of the duties as Plan Administrator. ARTICLE VI - MISCELLANEOUS 6.1 Assignment. Neither the Participant nor his legal representative shall have any rights to sell, assign, transfer or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the right thereto are expressly declared to be nonassignable and nontransferable. Any attempt to assign or transfer the right to payment under the Plan shall be null and void and of no effect. 6.2 Amendment and Termination. The Plan may be wholly or partially amended or otherwise modified, suspended or terminated at any time by the Southern Board or by the Governance Committee with the approval of the Southern Board, upon execution of a duly authorized written document; provided, however, that, without the approval of the shareholders of the Company entitled to vote thereon, no amendment may be made which would, absent such shareholder approval, disqualify the Plan for coverage under Rule 16b-3, as promulgated by the Commission under the Exchange Act, as that rule may be amended from time to time; and provided further that the Plan may not be amended more than once every six (6) months unless such amendment is made in order to comply with changes to either the Internal Revenue Code of 1986, as amended, or the Employee Retirement Income Security Act of 1974, as amended, and the rules thereunder. Notwithstanding the foregoing, no such amendment or termination shall impair any rights to payments to which a Participant may be entitled prior to the effective date of such amendment or termination. 6.3 No Guarantee of Continued or Future Service on a Board of Directors. Participation hereunder shall not be construed as creating a right in any Director to continued service or future service on the Board of Directors. Participation hereunder does not constitute an employment contract between any Director and any System Company or the Company as the case may be. 6.4 Construction. This Plan shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent such laws are not otherwise superseded by the laws of the United States. IN WITNESS WHEREOF, the Southern Board, through its duly authorized officers, has adopted this Outside Directors Stock Plan for The Southern Company and Its Subsidiaries this ___ day of _____________________, 2004, to be effective as provided herein. THE SOUTHERN COMPANY: (CORPORATE SEAL) By:______________________________ Its: ______________________________ Attest: By:______________________________ Its:______________________________ OUTSIDE DIRECTORS STOCK PLAN FOR THE SOUTHERN COMPANY AND ITS SUBSIDIARIES SCHEDULE A The System Companies as of May 26, 2004 are: OUTSIDE DIRECTORS STOCK PLAN FOR THE SOUTHERN COMPANY AND ITS SUBSIDIARIES SCHEDULE B As of __________ The portion of a Participant's Retainer Fee required to be distributed in common stock of The Southern Company shall be determined in accordance with the following schedule: Company Dollar Amount of Required Stock Distribution Southern Company o Pre-1997 Appointed Directors $10,000.00 o Post-1996 Appointed Directors $19,000.00 - -------------------------------------------------------------------------------- Company Shares Distributed Southern Company 250 shares per quarter Alabama Power Company 130 shares per quarter Georgia Power Company 130 shares per quarter Gulf Power Company 80 shares per quarter Mississippi Power Company 80 shares per quarter Savannah Electric and Power Company 80 shares per quarter EX-99 4 xf.txt EXHIBIT F Exhibit F Balch & Bingham LLP 1901 Sixth Avenue North, Suite 2600 Birmingham, Alabama 35203 (205) 251-8100 March 17, 2004 Securities and Exchange Commission Washington, D.C. Re: Statement on Form U-1 of The Southern Company (the "Company") Ladies and Gentlemen: We are familiar with the statement on Form U-1 referred to above relating to (i) the Outside Directors Stock Plan for The Southern Company and its Subsidiaries (the "Plan") and (ii) the solicitation of proxies from the Company's stockholders in connection with the Plan, and we are familiar with the proceedings relating thereto. We are of the opinion that the Company is a validly organized and duly existing corporation under the laws of the State of Delaware and that, upon the issuance of your order or orders permitting such statement on Form U-1 to become effective, upon the adoption of an appropriate resolution by the stockholders of the Company, upon compliance with the Securities Act of 1933, as amended, and with such State securities or "blue sky" laws as may be applicable, and upon the proposed transactions being consummated in accordance with such statement on Form U-1 and such order or orders and in accordance with the Plan: (a) all State laws applicable to the proposed transactions will have been complied with; (b) the common stock, par value $5.00 per share, of the Company proposed to be issued pursuant to the Plan will be validly issued, fully paid and nonassessable and the holders of such common stock will be entitled to the rights and privileges appertaining thereto set forth in the Certificate of Incorporation of the Company, as amended; and (c) the consummation of the proposed transactions will not violate the legal rights of the holders of any securities issued by the Company or any associate company thereof. We hereby consent to the filing of this opinion as an exhibit to the above-mentioned statement on Form U-1. Very truly yours, /s/Balch & Bingham LLP EX-99 5 xg-1.txt EXHIBIT G-1 Exhibit G-1 - -------------------------------------------------------------------------------- Notice of Annual Meeting of Stockholders - May 26, 2004 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- TIME and DATE - -------------------------------------------------------------------------------- 10:00 a.m., ET, on Wednesday, May 26, 2004 - -------------------------------------------------------------------------------- PLACE - -------------------------------------------------------------------------------- The Southern Pine at Callaway U.S. Highway 18 Pine Mountain, Georgia 31822 - -------------------------------------------------------------------------------- DIRECTIONS - -------------------------------------------------------------------------------- From Atlanta, Ga.- take I-85 south to I-185 (Exit 21). From I-185 south, take Exit 34, Georgia Highway 18. Take Georgia Highway 18 east to Callaway. From Birmingham, Ala - take U.S. Highway 280 east to Opelika, Ala. Take I-85 north to Georgia Highway 18 (Exit 2). Take Georgia Highway 18 east to Callaway. - -------------------------------------------------------------------------------- ITEMS of BUSINESS - -------------------------------------------------------------------------------- (1) Elect 10 members of the Board of Directors; (2) Ratify appointment of independent accountants; (3) Approve Outside Directors Stock Plan; and (4) Transact other business properly coming before the meeting or any adjournments thereof. - -------------------------------------------------------------------------------- RECORD DATE - -------------------------------------------------------------------------------- Stockholders of record at the close of business on March 29, 2004, are entitled to attend and vote at the meeting. - -------------------------------------------------------------------------------- ANNUAL REPORT to STOCKHOLDERS - -------------------------------------------------------------------------------- The Southern Company Annual Report to stockholders for 2003 is enclosed but is not a part of this mailing. - -------------------------------------------------------------------------------- VOTING - -------------------------------------------------------------------------------- Even if you plan to attend the meeting in person, please provide your voting instructions in one of the following ways as soon as possible: (1) Internet -- use the Internet address on the proxy form (2) Telephone -- use the toll-free number on the proxy form (3) Mail-- mark, sign, and date the proxy form and return in the enclosed postage-paid envelope By Order of the Board of Directors, Tommy Chisholm, Secretary, April ___, 2004 EX-99 6 xg-2.txt EXHIBIT G-2 Exhibit G-2 ITEM NO. 3 - APPROVAL OF THE COMPANY'S OUTSIDE DIRECTORS STOCK PLAN The Board of Directors has adopted effective May 26, 2004, subject to shareholder approval, the Outside Directors Stock Plan for Directors of The Southern Company and its Subsidiaries (the "Plan"). The Plan is a consolidation of the Outside Directors Stock Plan for The Southern Company that was approved by the Company's stockholders in 1994 (the "1994 Plan") and the Outside Directors Stock Plan for Subsidiaries of The Southern Company that was approved by the Company's stockholders in 1995 (collectively, the "Prior Plans"). The purpose of the Plan is to provide a mechanism for non-employee directors to automatically increase their ownership of common stock and thereby further align their interests with those of the stockholders. The Plan will be administered by the Company's Governance Committee. The Plan provides for the payment to non-employee directors of a portion of their annual retainer fee in unrestricted shares of common stock of the Company, par value $5 per share. For the subsidiary company participants the stock retainer presently being paid under the Plan ranges from 340 to 520 shares per year. See the section entitled Director Compensation on page ___ of this proxy statement for a description of the stock retainer paid to Company Directors. Additionally, the Plan permits participants to elect to receive a greater portion -- up to all -- of their compensation in shares of common stock. For Company directors, the receipt of all shares under the Plan is deferred until termination from the Board. Other Participants may elect to defer receipt of all or a portion of the stock paid under the Plan until termination from their respective board of directors. Presently, for Company directors, receipt of all shares paid under the Plan are deferred until termination from the board. The Company expects that there will be approximately 50 directors initially participating in the Plan. The maximum number of shares that may be granted under the Plan is 1,000,000 shares of common stock in addition to the shares of common stock that have not yet been granted under the Prior Plans, which is approximately 1,700,000 shares of common stock. The Plan will expire on May 26, 2014. The board of directors of the Company may amend or terminate the Plan at any time, subject to stockholder approval when required by law or regulation. The following table sets forth estimated amounts to be paid under the Plan in 2004. Name and Position Dollar Value ($) Number of Shares - ----------------- ---------------- ---------------- H. A. Franklin, Chairman and CEO, Southern Company 0 0 D. M. Ratcliffe, President, Southern Company 0 0 T. A. Fanning, Executive Vice President, CFO and Treasurer, Southern Company 0 0 W. G. Hairston III, President and CEO Southern Nuclear Operating Company 0 0 C. D. McCrary, President and CEO, Alabama Power Company 0 0 Executive officers as a group 0 0 Non-executive directors as a group 1,800,000 60,000 Non-executive officer employees 0 0 The vote needed to approve the Plan is a majority of the shares of the Company's common stock represented at the meeting and entitled to vote. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" ITEM NO. 3. EX-99 7 xg-3.txt EXHIBIT G-3 Exhibit G-3 Admission Ticket (Not Transferable) [GRAPHIC OMITTED] 2004 Annual Meeting of Stockholders 10 a.m. ET, May 26, 2004 The Southern Pine at Callaway Highway 18 Pine Mountain, GA 31822 Please present this Admission Ticket in order to gain admittance to the meeting. Ticket admits only the stockholder(s) listed on reverse side and is not transferable. Directions to Meeting Site: o From Atlanta, GA. - take I-85 south to I-185 (Exit 21). From I-185 south, take Exit 34, Georgia Highway 18. Take Georgia Highway18 east to Callaway. o From Birmingham, AL. - take U.S. Highway 280 east to Opelika, AL. Take I-85 north to Georgia Highway 18 (Exit 2). Take Georgia Highway 18 east to Callaway. NOTICE OF ANNUAL MEETING OF STOCKHOLDERS The Annual Meeting of Stockholders of The Southern Company will be held on Wednesday, May 26, 2004, at 10:00 a.m., ET, at The Southern Pine at Callaway, Pine Mountain, Georgia. Stockholders owning shares at the close of business on March 29, 2004, are entitled to attend and vote at the meeting. Stockholders will elect members of the Board of Directors; vote upon ratification of the independent auditors; and vote upon approval of Outside Directors Stock Plan; and transact other business properly coming before the meeting or any adjournments thereof. - ------------------------------------------------------------------------------- FORM OF PROXY AND [GRAPHIC OMITTED] FORM OF PROXY AND TRUSTEE VOTING TRUSTEE VOTING INSTRUCTION FORM INSTRUCTION FORM PROXY SOLICITED ON BEHALF OF BOARD OF DIRECTORS AND ESP/ESOP TRUSTEES If a stockholder of record, the undersigned hereby appoints H. A. Franklin, T. A. Fanning and T. Chisholm, or any of them, Proxies with full power of substitution in each, to vote all shares the undersigned is entitled to vote at the Annual Meeting of Stockholders of The Southern Company, to be held at The Southern Pine at Callaway, Pine Mountain, Georgia, on May 26, 2004, at 10:00 a.m., ET, and any adjournments thereof, on all matters properly coming before the meeting, including, without limitation, the proposals listed on the reverse side of this form. If a beneficial owner holding shares through the Employee Savings Plan ("ESP") and/or the Employee Stock Ownership Plan ("ESOP"), the undersigned directs the Trustees of these Plans to vote all shares the undersigned is entitled to vote at the Annual Meeting of Stockholders, and any adjournments thereof, on all matters properly coming before the meeting, including, without limitation, the proposals listed on the reverse side of this form. This Form of Proxy/Trustee Voting Instruction Form is solicited jointly by the Board of Directors of The Southern Company and the Trustees of the Employee Savings Plan and Employee Stock Ownership Plan pursuant to a separate Notice of Annual Meeting and Proxy Statement. If not voted electronically, this form should be mailed in the enclosed envelope to the Company's proxy tabulator at 51 Mercedes Way, Edgewood, NY 11717. The deadline for receipt of Trustee Voting Instruction Forms for ESP and ESOP shares is 5:00 p.m. on Monday, May 24, 2004. The deadline for receipt of shares of record voted through the Form of Proxy is 9:00 a.m. on Wednesday, May 26, 2004. The deadline for receipt of instructions provided electronically is 11:59 p.m. on Tuesday, May 25, 2004. The proxy tabulator will report separately to the Proxies named above and to the Trustees as to proxies received and voting instructions provided, respectively. THIS FORM OF PROXY/TRUSTEE VOTING INSTRUCTION FORM WILL BE VOTED AS SPECIFIED BY THE UNDERSIGNED. IF NO CHOICE IS INDICATED, THE SHARES WILL BE VOTED AS THE BOARD OF DIRECTORS RECOMMENDS. Continued and to be voted and signed on reverse side. [GRAPHIC OMITTED] Please consider furnishing your voting instructions electronically by Internet or C/O Proxy Services phone. Processing paper forms is more than P. O. Box 9112 twice as expensive as electronic instructions. Farmingdale, NY 11735 If you vote by Internet or phone, please do not mail this form VOTE BY INTERNET - www.proxyvote.com Use the Internet to transmit your voting instructions. Have this form in hand when you access the web site and follow the instructions to obtain your records and create an electronic ballot. VOTE BY TELEPHONE - 1-800-690-6903 Toll-Free Use any touch-tone telephone to transmit your voting instructions. Have this form in hand when you call, then follow the instructions. VOTE BY MAIL Mark, sign and date this form and return it in the postage-paid envelope we have provided or return it to Southern Company, C/O ADP, 51 Mercedes Way, Edgewood, NY THANK YOU VIEW ANNUAL REPORT AND PROXY STATEMENT ON THE INTERNET - www.southerncompany.com NOTE: The last instruction received, either paper or electronic, will be the last tabulated. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: KEEP THIS PORTION FOR YOUR RECORDS - ------------------------------------------------------------------------------- DETACH AND RETURN THIS PORTION ONLY THIS FORM OF PROXY/TRUSTEE VOTING INSTRUCTION FORM IS VALID ONLY WHEN SIGNED AND DATED. THE SOUTHERN COMPANY The Board recommends a vote FOR Items 1, 2 and 3.
1. ELECTION OF DIRECTORS: For Withhold For All To withhold authority to vote, mark "For All 01) D. P. Amos 02) D. J. Bern 03) T. F. Chapman All All Except Except" and write the nominee's number on the 04) H. A. Franklin 05) B. S. Gordon 06) D. M. James ( ) ( ) ( ) line below. 07) Z. T. Pate 06) J. N. Purcell 09)D. A. Ratcliffe 10) G. J. St. Pe ------------------------------
For Against Abstain 2. RATIFICATION OF THE APPOINTMENT OF DELOITTE & TOUCHE AS INDEPENDENT AUDITORS FOR 2004 ( ) ( ) ( ) 3. APPROVAL OF OUTSIDE DIRECTORS STOCK PLAN ( ) ( ) ( ) UNLESS OTHERWISE SPECIFIED ABOVE, YOUR SHARES WILL BE VOTED "FOR" ITEMS 1, 2 AND 3. Yes Mark here if you plan to attend the Annual Meeting. ( ) ( ) I consent to suspending future mailings of the Annual Report and Proxy Statement on this account. ( ) I have access to copies of the documents or can access them electronically through the Internet. I can revoke this consent at any time by notifying Stockholder Services. Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date If you vote by Internet or phone, please do not mail this form EX-99 8 xh.txt EXHIBIT H Exhibit H The Southern Company (70- ) Notice of Proposal with respect to Outside Directors Stock Plan for The Southern Company and its Subsidiaries; Order Authorizing Solicitation of Proxies The Southern Company ("Southern"), a registered holding company under the Public Utility Holding Company Act of 1935, as amended (the "Act"), proposes, from time to time through May 26, 2014, to issue shares of its common stock, par value $5.00 per share ("Common Stock"), pursuant to the Outside Directors Stock Plan for The Southern Company and its Subsidiaries (the "Plan"), as described herein. The Plan is a consolidation of the Outside Directors Stock Plan for The Southern Company ("Southern Stock Plan") and the Outside Directors Stock Plan for Subsidiaries of The Southern Company ("Subsidiaries Stock Plan"). The Board of Directors of Southern has adopted the Plan, subject to stockholder approval. The purpose of the Plan is to provide a mechanism for non-employee directors to automatically increase their ownership of Common Stock and thereby further align their interest with those of Southern's stockholders. The Plan will be administered by Southern's Governance Committee (the "Committee"). The Committee will have exclusive authority to interpret the Plan. The Plan provides for a portion of the retainer fee for non-employee directors of Southern and any subsidiary of Southern which the Board of Directors of Southern determines to bring under the Plan and which shall adopt the Plan (the "Subsidiaries") to be paid in unrestricted shares of Common Stock and permits each non-employee director to elect to have all or a portion of the remainder of the director fee to be paid in shares of Common Stock instead of cash. Southern expects that the initial Subsidiaries will be Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company and Savannah Electric and Power Company and that the approximate number of participants under the Plan will initially be 50. The portion of the director fee paid in Common Stock to Southern's non-employee directors pursuant to the Plan will automatically be deferred in accordance with the terms of the deferred compensation plan maintained by Southern. The non-employee directors of each Subsidiary may elect to have the portion of the director fee paid in Common Stock pursuant to the Plan to be deferred in accordance with the terms of the deferred compensation plan maintained by such Subsidiary for its directors. 1,000,000 shares of Common Stock and the unissued shares of Common Stock previously authorized and registered for issuance under the Southern Stock Plan and Subsidiaries Stock Plan (approximately 1,700,000 shares) will be available for payment to the participants under the Plan. The Board of Directors of Southern may terminate or amend the Plan at any time except that without shareholder approval no amendment may be made which would, absent such shareholder approval, disqualify the Plan for coverage under Rule 16b-3, as promulgated by the Commission under the Securities and Exchange Act of 1934, as amended. The Plan will terminate May 26, 2014, unless terminated sooner by the Board of Directors. Southern further proposes to submit the Plan for consideration and action by its stockholders at the annual meeting of such stockholders to be held on May 26, 2004, and in connection therewith, to solicit proxies from its stockholders. In addition, in the event that Southern considers it desirable to do so, it may employ professional proxy solicitors to assist in the solicitation of proxies and pay their expenses and compensation for such assistance which, it is estimated, will not exceed $10,000. Approval of the Plan requires the affirmative vote of the holders of a majority of the shares of Common Stock represented in person or by proxy at the annual meeting. It appears to the Commission that the application/declaration to the extent that it relates to the proposed solicitation of proxies should be permitted to become effective immediately under Rule 62(d): IT IS ORDERED, that the application-declaration, to the extent that it relates to the proposed solicitation of proxies be, and it hereby is, permitted to become effective immediately under Rule 62 and subject to the terms and conditions prescribed in Rule 24 under the Act. For the Commission, by the Division of Investment Management, under delegated authority. -----END PRIVACY-ENHANCED MESSAGE-----