-----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, DKw6arYTsls41sSPikEK1wa3LfVGqPZjL7sslR3Q1uVPweRcIEGNfAwupFqc2xd0 /Mj3zhoHB3bk67h+lh4ZRg== 0000092122-94-000029.txt : 19940408 0000092122-94-000029.hdr.sgml : 19940408 ACCESSION NUMBER: 0000092122-94-000029 CONFORMED SUBMISSION TYPE: U-1/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19940407 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/A SEC ACT: 35 SEC FILE NUMBER: 070-08399 FILM NUMBER: 94520896 BUSINESS ADDRESS: STREET 1: 64 PERIMETER CTR EAST CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 4043930650 U-1/A 1 AMENDMENT NO. 1 TO 70-8399 File No. 70-8399 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Amendment No. 1 to 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 The foregoing Application-Declaration is hereby amended and restated to read in its entirety as follows: 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 December 31, 2004, 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 shares for which authorization is sought herein will be newly issued shares which have been authorized but unissued as of the date of the application. 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 - 2 - 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 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 currently complies with Rule 16b-3 under the Securities Exchange Act of 1934, as amended, and 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 - 3 - 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 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. Pursuant to prior authorization, shares delivered to a director in accordance with the Plan may also be acquired on the open market. 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. Such proxy material will be mailed to Southern's shareholders on or about April 11, 1994. The material to be used in connection - 4 - 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: 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, 50(a)(5), 62 and 65 are or may be 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 - 5 - 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. 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 - 6 - 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 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. (Previously filed) G-1 - Draft of notice of annual meeting of stockholders. (Previously filed) G-2 - Draft of statement relating to the Plan to be included in the proxy statement for the annual meeting. (Previously filed) - 7 - G-3 - Draft of form of proxy for the annual meeting. (Previously filed) H - Form of Notice and Order permitting the solicitation of proxies. (Previously filed) 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. 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. - 8 - SIGNATURE Pursuant to the requirements of the Public Utility Holding Company Act of 1935, the undersigned company has duly caused this amendment to be signed on its behalf by the undersigned thereunto duly authorized. Dated: April 7, 1994 THE SOUTHERN COMPANY By: /s/Tommy Chisholm Tommy Chisholm Secretary - 9 - -----END PRIVACY-ENHANCED MESSAGE-----