-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, Hhkdv/9/it/xiQ7HvC4g7YSwHT+s6LmPSulqGiuNW9C08fjkd4AbTWnipTnOq9qo EyokqlCt/YbCLqlUM3iKhQ== 0000092122-94-000027.txt : 19940331 0000092122-94-000027.hdr.sgml : 19940331 ACCESSION NUMBER: 0000092122-94-000027 CONFORMED SUBMISSION TYPE: U-1 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19940328 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN CO CENTRAL INDEX KEY: 0000092122 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 580690070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U-1 SEC ACT: 35 SEC FILE NUMBER: 070-08399 FILM NUMBER: 94518273 BUSINESS ADDRESS: STREET 1: 64 PERIMETER CTR EAST CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 4043930650 U-1 1 FORM U-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM U-1 APPLICATION OR DECLARATION under The Public Utility Holding Company Act of 1935 THE SOUTHERN COMPANY 64 Perimeter Center East Atlanta, Georgia 30346 (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 64 Perimeter Center East Atlanta, Georgia 30346 (Names and addresses of agents for service) The Commission is requested to mail signed copies of all orders, notices and communications to: W. L. Westbrook John F. Young Financial Vice President Vice President The Southern Company Southern Company Services,Inc. 64 Perimeter Center East One Wall Street, 42nd Floor Atlanta, Georgia 30346 New York, New York 10005 John D. McLanahan, Esq Troutman Sanders 5200 NationsBank Plaza 600 Peachtree Street, N.E. 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, to issue up to 1,000,000 shares of its common stock, par value $5.00 per share ("Common Stock"), pursuant to The Southern Company Outside Directors Stock Plan (the "Plan"), as described herein. 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 nonemployee directors of Southern to automatically increase their ownership of Southern Common Stock and thereby further align their interests with those of the stockholders of Southern. The Plan will be administered by the Compensation Committee of the board of directors of Southern (the "Committee"). The Committee will have the discretion to interpret the Plan, including any ambiguities contained therein and, subject to its provisions, to make all determinations necessary or desirable for the Plan's administration. The Plan provides that any member of the Board of Directors of Southern who is not otherwise actively employed by Southern or any of its subsidiaries or affiliates shall receive a portion of his or her annual retainer fee equal to $5,000 in unrestricted Common Stock of Southern, with the remainder of such annual retainer fee to be payable, in increments elected by the director, in cash or in unrestricted Common Stock of Southern. Annual retainer fees for directors of Southern are currently $30,000. Outside directors shall have a one-time opportunity, pursuant to the Plan, to elect the portion of his or her compensation in excess of $5,000 to be paid in Common Stock. Such election shall be made on the form provided to the director by the Committee, which form shall acknowledge that once made, such election is irrevocable. Any cash payments due to a nonemployee director as a result of his or her election to receive a portion of his or her annual retainer fee in cash will be paid in twelve (12) equal monthly installments, with such payments being made on the first day of each month. Any Common Stock due to a nonemployee director will be paid on a quarterly basis, with the first such quarterly distribution being made on April 1 of each year and succeeding quarterly distributions being made on July 1, September 1, and December 1 of each year. Notwithstanding the foregoing, for purposes of the 1994 calendar year, no stock distributions shall be made prior to July 1, 1994; provided, however, that the stock distribution to be made on July 1, 1994 shall include both the April 1, 1994 and July 1, 1994 quarterly distributions. The amount of Common Stock to be distributed to a nonemployee director pursuant to the Plan shall initially be determined by first dividing the director's required and elected - 2 - dollar amount of Common Stock compensation under the Plan by four (4) and then dividing such quarterly quotient by the market value of the Common Stock on the date of distribution, with subsequent distributions based on such quarterly quotient divided by the market value of the Common Stock on the date of such subsequent distributions. For purposes of valuing such Common Stock, the term "market value" shall mean the average of the high and low prices of the Common Stock, as published in the Wall Street Journal in its report of New York Stock Exchange composite transactions, on the date such market value is to be determined (or the average of the high and low sale prices on the trading day immediately preceding such date if the Common Stock is not traded on the applicable valuation date). The Plan may be wholly or partially amended or otherwise modified, suspended or terminated by the Board of Directors of Southern or by the Committee with the approval of the Board of Directors; provided, however, that, without the approval of the shareholders of Southern entitled to vote thereon, no amendment may be made which would, absent such shareholder approval, disqualify the Plan for coverage under Rule 16b-3 under the Securities Exchange Act of 1934, as amended, 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 - 3 - thereunder. Notwithstanding the foregoing, no amendment or termination of the Plan will be permitted where it would impair any rights to payments to which a nonemployee director may be entitled prior to the effective date of such amendment or termination. Shares delivered by Southern to a director in accordance with the Plan will be unrestricted shares of Common Stock. Southern intends to file with the Securities and Exchange Commission a Registration Statement on Form S-8 for purposes of registering under the Securities Act of 1933, as amended, the shares of Common Stock to be issued pursuant to the Plan. 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 25, 1994, 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. 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: - 4 - Form U-1 Filing Fee $ 2,000 Legal Fees 25,000 Printing 80,000 Postage and Mailing 225,000 Services of Southern Company Services, Inc. (includes transfer agent and tabulation expenses) 55,000 Miscellaneous 5,000 Total $ 392,000 Item 3. Applicable Statutory Provisions Sections 6(a), 7 and 12(e) of the Act and Rules 23, 24 and 62 are applicable to the proposed transactions. To the extent that Rule 50 may be applicable to the proposed transactions, Southern hereby requests an exception from the requirements thereof pursuant to paragraph (a)(5). It is submitted that compliance with such requirements is not appropriate under the circumstances to aid the Commission (in carrying out the provisions of Section 7 of the Act) to determine whether the fees, commissions or other remuneration to be paid directly or indirectly in connection with the issue, sale or distribution of securities are reasonable, or whether any term or condition of such issue or sale is detrimental to the public interest or the interest of investors or consumers. Item 4. Regulatory Approval No state commission and no federal commission (other than the Securities and Exchange Commission) has jurisdiction over the proposed transactions. - 5 - Item 5. Procedure In order to give Southern sufficient time for the preparation and mailing of the proxy solicitation material to its stockholders prior to the annual meeting to be held on May 25, 1994, 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 further hereby requests that the Commission issue its order with respect to the Plan as soon as the rules allow. 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 Commissions'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 30 days after the end of each calendar quarter. Item 6. Exhibits and Financial Statements (a) Exhibits A-1 - The Southern Company Outside Directors Stock Plan. (To be filed by amendment.) 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 - 6 - A, and in Certificate of Notification, File No. 70-8181, as Exhibit A.) A-3 - By-Laws of Southern as amended effective October 21, 1991 and presently in effect. (Designated in Form U-1, File No. 70-8181, as Exhibit A-2.) B - None. C - Registration Statement of Southern on Form S-8 with respect to the Plan. (To be filed by amendment.) D - None. E - None. F - Opinion of Troutman Sanders. 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 Securities and Exchange 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. - 7 - 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. SIGNATURE 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 28, 1994 THE SOUTHERN COMPANY By: /s/Tommy Chisholm Tommy Chisholm Secretary - 8 - EX-99 2 EXHIBIT F Exhibit F Troutman Sanders 600 Peachtree Street Suite 5200 Atlanta, GA 30308 404-885-3156 March 28, 1994 Securities and Exchange Commission Washington, D.C. 20549 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 Southern Company Outside Directors Stock Plan (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, 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 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/ Troutman Sanders Troutman Sanders EX-99 3 EXHIBIT G-1 EXHIBIT G-1 DRAFT NOTICE OF ANNUAL MEETING OF STOCKHOLDERS -- May 25, 1994 Dear Stockholder: The Annual Meeting of Stockholders of THE SOUTHERN COMPANY will be held at the Mobile Convention Center, One South Water Street, Mobile, Alabama on Wednesday, May 25, 1994, at 10:00 a.m. (CDT), for the following purposes: (1) Electing 13 members of the board of directors; (2) Ratifying the appointment of Arthur Andersen & Co. as independent auditors for 1994; (3) Approving the Outside Directors Stock Plan; (4) Approving The Southern Company Productivity Improvement Plan for Executive Officers; (5) Considering and voting upon stockholder proposals, if presented at the meeting, as described in Items 5 and 6 in the attached proxy statement; and (6) Transacting such other business as may properly come before the meeting or any adjournments thereof. Your vote is important. Please mark, date, sign, and promptly return the enclosed form of proxy in the enclosed postage-paid envelope. If you attend the annual meeting, you may revoke this proxy by voting in person. Only stockholders of record at the close of business on March 28, 1994, are entitled to vote at the meeting. By Order of the Board of Directors, Tommy Chisholm Secretary Atlanta, Georgia April 11, 1994 EX-99 4 EXHIBIT G-2 EXHIBIT G-2 DRAFT 3. PROPOSAL TO APPROVE THE COMPANY'S OUTSIDE DIRECTORS STOCK PLAN The board of directors has adopted effective January 1, 1994, subject to shareholder approval, The Southern Company Outside Directors Stock Plan (the "Plan"). The purpose of the Plan is to provide a mechanism for nonemployee directors to automatically increase their ownership of Company common stock and thereby further align their interests with those of the stockholders. The Plan will be administered by the Company's compensation committee. The Plan provides for the payment to nonemployee directors of $5,000 of their annual retainer fee (currently $30,000) in unrestricted shares of Company common stock, par value $5 per share. Additionally, the Plan will permit participants to elect to receive a greater portion -- up to all -- of their annual retainer fee in shares of Company common stock. The shares will be issued quarterly. The number of shares issued to each participant will be rounded to the nearest whole share amount based on the fair market value of the Company's common stock on the date issued. Presently, there are 10 participants in the Plan. The board of directors may amend or terminate the Plan at any time, subject to stockholder approval when required by law or regulation. The following table sets forth estimated amounts to be paid under the Plan in 1994: Outside Directors Stock Plan Name and Position Dollar Value ($) E. L. Addison, Chairman and CEO, The 0 Southern Company A. W. Dahlberg, President, The 0 Southern Company P. J. DeNicola, President, 0 Southern Company Services H. A. Franklin, President, 0 Georgia Power Company E. B. Harris, President, 0 Alabama Power Company Executive officers as a group 0 Non-executive directors as a group 47,500 Non-executive officer employees 0 THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" PROPOSAL NO. 3. - 1 - EX-99 5 EXHIBIT G-3 DRAFT EXHIBIT G-3 UNLESS OTHERWISE SPECIFIED BELOW, THIS PROXY WILL BE VOTED "FOR" ITEMS 1 - 4 and "AGAINST" ITEMS 5 and 6. P S R (1) Election of Directors E O FOR all nominees listed below E X E. L. Addison, W. P. Copenhaver, A. W. Dahlberg, P. J. DeNicola, J. Edwards, H. A. Franklin, Y L. G. Hardman, III, E. B. Harris, E. D. McLean, Jr., O W. A. Parker, Jr., W. J. Rushton, III, G. M. Shatto, H. Stockham T H E (Instruction: To withhold authority to vote for R any individual nominee, write that nominee's name on the space provided below.) S I WITHHOLD vote for all nominees D THE DIRECTORS RECOMMEND A VOTE "FOR" ITEMS 2 - 4. E (2) Appointment of Auditors FOR AGAINST ABSTAIN (3) Approval of Outside Directors Stock Plan FOR AGAINST ABSTAIN (4) Approval of the Productivity Improvement Plan for Executive Officers FOR AGAINST ABSTAIN DRAFT THE DIRECTORS RECOMMEND A VOTE "AGAINST" ITEMS 5 and 6. (5) Stockholder Proposal Regarding Additional Disclosure of Executive Compensation FOR AGAINST ABSTAIN (6) Stockholder Proposal on Limiting Executive Compensation FOR AGAINST ABSTAIN DRAFT C O THE SOUTHERN COMPANY PROXY SOLICITED ON BEHALF OF BOARD OF DIRECTORS N For Annual Meeting of Stockholders May 25, 1994 T P I The undersigned hereby appoints E. L. ADDISON, E. B. HARRIS, and W. L. WESTBROOK, and each or any of them, proxies with full N R power of substitution in each, to vote all shares the undersigned is entitled to vote at the Annual Meeting of Stockholders of U THE SOUTHERN COMPANY, to be held at the Mobile Convention Center, O Mobile, Alabama, at 10:00 a.m. (CDT), and any adjournments E thereof, on all matters legally coming before the meeting, including, without limitation, the proposals listed on the D X reverse side hereof. O Y Please mark, date, and sign exactly as N name appears and return this proxy card promptly in the enclosed envelope to The Southern Company, Stockholder O Services, P. O. Box 105700, Atlanta, Georgia 30352-9870. T H Date , 1994 E R Signature(s) S Check box if you are attending the Annual Meeting in person I D E DRAFT C O THE SOUTHERN COMPANY This Proxy Is For PROXY SOLICITED ON BEHALF OF BOARD OF DIRECTORS Your Combined N For Annual Meeting of Stockholders May 25, 1994 E.S.O.P. and E.S.P. (if any) T Shares. I P The undersigned hereby appoints E. L. ADDISON, E. B. HARRIS, and W. L. WESTBROOK, and each or any of them, proxies with full N power of substitution in each, to vote all shares the undersigned R is entitled to vote at the Annual Meeting of Stockholders of U THE SOUTHERN COMPANY, to be held at the Mobile Convention Center, Mobile, Alabama, at 10:00 a.m. (CDT) and any adjournments E O thereof, on all matters legally coming before the meetings, including, without limitation, the proposals listed on the D reverse side hereof. X O Y N Please mark, date, and sign exactly as name appears and return this proxy card promptly in the enclosed envelope O to The Southern Company, Bin 071, 64 Perimeter Center East, Atlanta, T Georgia 30346. H Date , 1994 E R Signature(s) S Check box if you are attending the I Annual Meeting in person D E EX-99 6 EXHIBIT H Exhibit H Form of Notice and Order Permitting Solicitation of Proxies The Southern Company ("Southern"), 64 Perimeter Center East, Atlanta, Georgia 30346, a registered holding company, has filed a declaration pursuant to Sections 6(a), 7 and 12(e) of the Act and Rules 23, 24, 50(a)(5) and 62 thereunder. Southern proposes, from time to time, to issue up to 1,000,000 shares of its common stock, par value $5.00 per share ("Common Stock"), pursuant to The Southern Company Outside Directors Stock Plan (the "Plan"). The Plan provides that any member of the Board of Directors of Southern who is not otherwise actively employed by Southern or any of its subsidiaries or affiliates shall receive a portion of his or her annual retainer fee equal to $5,000 in Common Stock of Southern, with the remainder of such annual retainer fee to be payable, in increments elected by the director, in cash or in Common Stock. The Plan will be administered by the Compensation Committee of the Board of Directors. Outside directors will have a one-time opportunity, pursuant to the Plan, to elect the portion of his or her compensation in excess of $5,000 to be paid in Common Stock. Any cash payments due to a nonemployee director as a result of his or her election to receive a portion of his or her annual retainer fee in cash will be paid in twelve (12) equal monthly installments. Any Common Stock due to a non-employee director will be paid on a quarterly basis on April 1, July 1, September 1 and December 1 of each year. The amount of Common Stock to be distributed to a nonemployee director pursuant to the Plan shall be determined by first dividing the director's required and elected dollar amount of Common Stock compensation under the Plan by four (4) and then dividing such quarterly quotient by the market value of the Common Stock on the date of distribution, as determined pursuant to the Plan. Subject to certain exceptions specified in the Plan, the Plan may be wholly or partially amended or otherwise modified, suspended or terminated by the Board of Directors of Southern or by the Committee with the approval of the Board of Directors. Southern proposes to solicit proxies for its annual meeting of shareholders on May 25, 1994 in connection with the Plan, and has requested an order, pursuant to Rule 62(d) under the Act, permitting such solicitation. - 2 - IT IS ORDERED, pursuant to the applicable provisions of the Act and rules thereunder, that the declaration be, and it hereby is, permitted to become effective forthwith with respect to such solicitation of proxies, subject to the terms and conditions prescribed in Rule 24 under the Act, jurisdiction being hereby reserved over the other matters covered by the declaration. -----END PRIVACY-ENHANCED MESSAGE-----