-----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, JbzbAotpmNZ0KMgxnRhEpvIt1tv80GQAq99aU/4yakL332eeEIBv6Izi8q1Hkdvv zfmMxym8RZM8etlPJO87Qw== 0000092122-05-000228.txt : 20050510 0000092122-05-000228.hdr.sgml : 20050510 20050510161846 ACCESSION NUMBER: 0000092122-05-000228 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050510 DATE AS OF CHANGE: 20050510 EFFECTIVENESS DATE: 20050510 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: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-124780 FILM NUMBER: 05816937 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 S-8 1 esps8.txt FORM S-8 As filed with the Securities and Exchange Commission on May 10, 2005 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ THE SOUTHERN COMPANY (Exact name of registrant as specified in its charter) Delaware 58-0690070 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 270 Peachtree Street, N.W. 30303 Atlanta, Georgia (Zip Code) (Address of principal executive offices) THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN (Full title of the plan) G. EDISON HOLLAND, Jr. Executive Vice President, General Counsel and Corporate Secretary THE SOUTHERN COMPANY 270 Peachtree Street, N.W. Atlanta, Georgia 30303 (Name and address of agent for service) (404) 506-5000 (Telephone number, including area code, of agent for service) The Commission is requested to mail signed copies of all orders, notices and communications to: THOMAS A. FANNING MELISSA K. CAEN Executive Vice President, Chief Financial TROUTMAN SANDERS LLP Officer and Treasurer 600 Peachtree Street, N.E. THE SOUTHERN COMPANY Suite 5200 270 Peachtree Street, N.W. Atlanta, Georgia 30308-2216 Atlanta, Georgia 30303 CALCULATION OF REGISTRATION FEE
======================================================================================================================== Proposed Proposed Title of Each Class Amount Maximum Maximum Amount of of Securities to be Aggregate Price Aggregate Registration to be Registered Registered (1) Per Unit (2) Offering Price (2) Fee - ------------------------------------------------------------------------------------------------------------------------ Common Stock, par 20,000,000 shares $32.96 $659,200,000 $77,588 value $5 per share =========================================================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) Pursuant to Rule 457(h)(1), these figures are based upon the average of the high and low prices paid for a share of the Company's Common Stock on May 9, 2005, as reported in the New York Stock Exchange consolidated reporting system, and are used solely for the purpose of calculating the registration fee. The documents constituting the prospectus herein contain the information required by Rule 429 of the Commission under the Securities Act of 1933 with respect to 8,944,102 shares of Common Stock of the Company remaining unsold under Registration Statement No. 333-110559. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The documents listed below are incorporated by reference in this registration statement; and all documents subsequently filed by The Southern Company ("SOUTHERN" or the "registrant") or The Southern Company Employee Savings Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. (a) (1) The registrant's Annual Report on Form 10-K for the year ended December 31, 2004. (2) The Plan's Annual Report on Form 11-K for the year ended December 31, 2003. (b) (1) The registrant's Current Reports on Form 8-K dated February 15, 2005, February 16, 2005, February 21, 2005, March 25, 2005 and May 5, 2005. (2) The registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2005. (c) The description of the registrant's common stock contained in Registration No. 333-64871 filed under the Securities Act of 1933. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. None. Item 6. Indemnification of Directors and Officers. Section 145 of Title 8 of the Delaware Code gives a corporation power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good II-1 faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The same Section also gives a corporation power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Also, the Section states that, to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. The By-Laws of SOUTHERN provide in substance that no present or future director or officer of SOUTHERN shall be liable for any act, omission, step or conduct taken or had in good faith which is required, authorized or approved by order issued pursuant to the Public Utility Holding Company Act of 1935, the Federal Power Act, or any state statute regulating SOUTHERN or its subsidiaries by reason of their being public utility companies or public utility holding companies, or any amendment to any thereof. In the event that such provisions are found by a court not to constitute a valid defense, each such director and officer shall be reimbursed for, or indemnified against, all expenses and liabilities incurred by him or imposed on him, in connection with, or arising out of, any such action, suit or proceeding based on any act, omission, step or conduct taken or had in good faith as in such By-Laws described. The By-Laws of SOUTHERN also provide in pertinent part as follows: "Each person who is or was a director or officer of the Corporation and who was or is a party or was or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the Corporation as a matter of right against any and all expenses (including attorneys' fees) actually and reasonably incurred by him and against any and all claims, judgments, fines, penalties, liabilities II-2 and amounts paid in settlement actually incurred by him in defense of such claim, action, suit or proceeding, including appeals, to the full extent permitted by applicable law. The indemnification provided by this Section shall inure to the benefit of the heirs, executors and administrators of such person. Expenses (including attorneys' fees) incurred by a director or officer of the Corporation with respect to the defense of any such claim, action, suit or proceeding may be advanced by the Corporation prior to the final disposition of such claim, action, suit or proceeding, as authorized by the Board of Directors in the specific case, upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the Corporation under this Section or otherwise; provided, however, that the advancement of such expenses shall not be deemed to be indemnification unless and until it shall ultimately be determined that such person is entitled to be indemnified by the Corporation." SOUTHERN has an insurance policy covering its liabilities and expenses which might arise in connection with its lawful indemnification of its directors and officers for certain of their liabilities and expenses and also covering its officers and directors against certain other liabilities and expenses. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number 4.1 - Composite Certificate of Incorporation of SOUTHERN reflecting all amendments through January 5, 1994. Designated in Registration No. 33-3546 as Exhibit 4(a), in Certificate of Notification, File No. 70-7341, as Exhibit A and in Certificate of Notification, File No. 70-8181, as Exhibit A). 4.2 - Bylaws of SOUTHERN as amended effective February 17, 2003 and presently in effect. (Designated in Form 10-Q for the quarter ended June 30, 2003, File No. 70-8181, as Exhibit 3(a)(1)). 4.3 - The Southern Company Employee Savings Plan, Amended nd Restated effective January 1, 2002 and Amendments One through Five thereto. (Designated in Form 10-K for the year ended December 31, 2001, File No. 1-3526, as Exhibit 10(a)52, in Registration No. 333- 96883 as Exhibit 4(d) and in Form 10-Q for the quarter ended September 30, 2003, File No. 1-3526, as Exhibit 10(a)(1)). 4.4 - Trust Agreement between Southern Company Services, Inc. and Merrill Lynch Trust Company of Florida, as Trustee under the Plan. (Designated in Registration No. 333-96883 as Exhibit 4(e)). II-3 5.1 - Opinion of Troutman Sanders LLP, counsel to SOUTHERN. 5.2 - Internal Revenue Service determination letters dated March 5, 1996, June 10, 1996, February 24, 2000 and January 31, 2003. (Designated in Form 11-K for the year ended December 31, 1995, File No. 1-3526, as Exhibit B, in Registration No. 333-96883 as Exhibit 5(c) and in Registration No. 333-110559 as Exhibit 5.3). 23.1 - The consent of Troutman Sanders LLP is contained in Exhibit 5.1. 23.2 - Consent of Deloitte & Touche LLP. 24 - Powers of Attorney and resolution. Exhibits listed above which have heretofore been filed with the Securities and Exchange Commission and which were designated as noted above are hereby incorporated herein by reference and made a part hereof with the same effect as if filed herewith. Item 9. Undertakings. (a) Undertaking related to Rule 415 offering: The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; II-4 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs(a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Undertaking relating to filings incorporating subsequent Securities Exchange Act of 1934 documents by reference: The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and each filing of the Plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Undertaking relating to filing of registration statement on Form S-8: Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-5 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on May 10, 2005. THE SOUTHERN COMPANY By: David M. Ratcliffe Chairman of the Board, President and Chief Executive Officer By: /s/Wayne Boston Wayne Boston Attorney-in-Fact Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE - --------- ----- ---- David M. Ratcliffe Director, Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) Thomas A. Fanning Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) W. Dean Hudson Comptroller and Chief Accounting Officer (Principal Accounting Officer) Dorrit J. Bern ) Francis S. Blake ) Thomas F. Chapman ) Bruce S. Gordon ) Directors Donald M. James ) Zack T. Pate ) J. Neal Purcell ) Gerald J. St. Pe ) By: /s/Wayne Boston May 10, 2005 Wayne Boston Attorney-in-Fact
The Plan. Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on May 10, 2005. THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN By: /s/ Robert A. Bell_ Robert A. Bell Vice President Member of the Employee Savings Plan Committee EX-5 2 ex5-1.txt TROUTMAN SANDERS OPINION TROUTMAN SANDERS LLP ATTORNEYS AT LAW A LIMITED LIABILITY PARTNERSHIP BANK OF AMERICA PLAZA 600 PEACHTREE STREET, N.E. - SUITE 5200 ATLANTA, GEORGIA 30308-2216 www.troutmansanders.com TELEPHONE: 404-885-3000 FACSIMILE: 404-885-3900 May 10, 2005 The Southern Company 270 Peachtree Street, N.W. Atlanta, Georgia 30303 Re: The Southern Company Registration Statement on Form S-8 ----------------------------------- Ladies and Gentlemen: We have examined the above-captioned registration statement proposed to be filed by The Southern Company ("Southern") with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), for the registration of additional shares of its common stock, par value $5 per share (the "Stock"), for issuance pursuant to The Southern Company Employee Savings Plan (the "Plan"). We have also examined certified copies of Southern's Certificate of Incorporation, as amended, and of its by-laws and are familiar with all proceedings relating to the issuance and sale of the Stock. We are of the opinion that: (a) Upon compliance with the relevant provisions of the Act and the Public Utility Holding Company Act of 1935, as amended, and upon compliance with the securities or "Blue Sky" laws of any jurisdiction applicable thereto, Southern may legally issue and sell the Stock without obtaining the consent or approval of any other governmental authority. (b) When the necessary consents or approvals as referred to in paragraph (a) hereinabove have been obtained, and when certificates for the Stock have been executed by Southern, countersigned and registered by the transfer agent and registrar and delivered in accordance with the Plan, the Stock will be valid and legally issued, fully paid and non-assessable shares of Southern, and the holders thereof will be entitled to the rights and privileges appertaining thereto as set forth in Southern's Certificate of Incorporation, as amended. We hereby consent to the filing of this opinion as an exhibit to the registration statement. Very truly yours, /s/ TROUTMAN SANDERS LLP TROUTMAN SANDERS LLP ATLANTA o HONG KONG o LONDON o NEW YORK o NORFOLK o RALEIGH RICHMONDo TYSONS CORNER o VIRGINIA BEACH o WASHINGTON, D.C. EX-23 3 ex23-2.txt CONSENT OF DELOITTE & TOUCHE LLP Exhibit 23.2 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports relating to the financial statements of Southern Company and management's report on the effectiveness of internal control over financial reporting dated February 28, 2005, appearing in the Annual Report on Form 10-K of Southern Company for the year ended December 31, 2004 and our report dated June 21, 2004 appearing in the Annual Report on Form 11-K of Southern Company Employee Savings Plan for the year ended December 31, 2003. /s/Deloitte & Touche LLP Atlanta, Georgia May 10, 2005 EX-24 4 ex24.txt POWER OF ATTORNEY AND RESOLUTION February 21, 2005 David M. Ratcliffe, Thomas A. Fanning, Tommy Chisholm and Wayne Boston Dear Sirs: The Southern Company proposes to file with the Securities and Exchange Commission a registration statement or statements under the Securities Act of 1933, as amended, with respect to the issuance and sale of additional shares of its common stock under The Southern Company Employee Savings Plan, in an amount not to exceed 20,000,000 shares. The Southern Company and the undersigned directors and officers of The Southern Company, individually as a director and/or as an officer of The Southern Company, hereby make, constitute and appoint each of you our true and lawful Attorney for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission in connection with the foregoing such registration statement or statements and appropriate amendment or amendments (including post-effective amendments) thereto. Yours very truly, THE SOUTHERN COMPANY By/s/ David M. Ratcliffe David M. Ratcliffe Chairman, President and Chief Executive Officer - 2 - /s/J. Neal Purcell Daniel P. Amos J. Neal Purcell /s/Dorrit J. Bern /s/ David M. Ratcliffe Dorrit J. Bern David M. Ratcliffe /s/Francis S. Blake /s/ Gerald J. St. Pe' Francis S. Blake Gerald J. St. Pe' /s/Thomas F. Chapman /s/ G. Edison Holland, Jr. Thomas F. Chapman G. Edison Holland, Jr. /s/Bruce S. Gordon /s/ Thomas A. Fanning Bruce S. Gordon Thomas A. Fanning /s/Donald M. James /s/ Tommy Chisholm Donald M. James Tommy Chisholm /s/Zack T. Pate /s/ W. Dean Hudson Zack T. Pate W. Dean Hudson -3- Extract from minutes of meeting of the board of directors of The Southern Company. - - - - - - - - - - - - RESOLVED FURTHER: That for the purpose of signing the registration statement or statements under the Securities Act of 1933, as amended, to be filed with the Securities and Exchange Commission with respect to the issuance and sale by the Company of additional shares of its common stock under the Employee Savings Plan and of remedying any deficiencies with respect thereto by appropriate amendment or amendments (including post-effective amendments), the Company, the members of its board of directors and its officers are authorized to give their several powers of attorney to David M. Ratcliffe, Thomas A. Fanning, Tommy Chisholm and Wayne Boston; - - - - - - - - - - - - The undersigned officer of The Southern Company does hereby certify that the foregoing is a true and correct copy of a resolution duly and regularly adopted at a meeting of the board of directors of The Southern Company, duly held on February 21, 2005, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Dated: May 10, 2005 THE SOUTHERN COMPANY By/s/ Patricia L. Roberts Patricia L. Roberts Assistant Secretary -----END PRIVACY-ENHANCED MESSAGE-----