-----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, C4eFky1hGQsYVDzWX7qfdIXk/yAP5MjIn6EPOR3BEA9dMqiUuYEGTmrbWvP5fxhL vA+rsmg7knCaEXvo5E2aQw== 0000092122-94-000041.txt : 19940629 0000092122-94-000041.hdr.sgml : 19940629 ACCESSION NUMBER: 0000092122-94-000041 CONFORMED SUBMISSION TYPE: U-1 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19940624 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: 1935 Act SEC FILE NUMBER: 070-08435 FILM NUMBER: 94535518 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 SAVANNAH ELECTRIC AND POWER COMPANY 64 Perimeter Center East 600 Bay Street East Atlanta, Georgia 30346 Savannah, Georgia 31401 ALABAMA POWER COMPANY SOUTHERN COMPANY SERVICES, INC. 600 North 18th Street 64 Perimeter Center East Birmingham, Alabama 35291 Atlanta, Georgia 30346 GEORGIA POWER COMPANY SOUTHERN ELECTRIC GENERATING COMPANY 333 Piedmont Avenue, N.E. 600 North 18th Street Atlanta, Georgia 30308 Birmingham, Alabama 35291 GULF POWER COMPANY SOUTHERN ELECTRIC INTERNATIONAL, INC. 500 Bayfront Parkway 900 Ashwood Parkway, Suite 500 Pensacola, Florida 32501 Atlanta, Georgia 30338 MISSISSIPPI POWER COMPANY SOUTHERN NUCLEAR OPERATING COMPANY, INC. 2992 West Beach 40 Inverness Center Parkway Gulfport, Mississippi 39501 Birmingham, Alabama 35204 (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 Kirby R. Willis, Vice President, Secretary Treasurer and Chief Financial Officer The Southern Company Savannah Electric and Power Company 64 Perimeter Center East 600 Bay Street East Atlanta, Georgia 30346 Savannah, Georgia 31401 Art P. Beattie, Vice President, Tommy Chisholm, Vice President Secretary and Treasurer and Secretary Alabama Power Company Southern Company Services, Inc. 600 North 18th Street 64 Perimeter Center East Birmingham, Alabama 35291 Atlanta, Georgia 30346 Judy M. Anderson, Vice President Art P. Beattie and Corporate Secretary Secretary and Treasurer Georgia Power Company Southern Electric Generating Company 333 Piedmont Avenue, N.E. 600 North 18th Street Atlanta, Georgia 30308 Birmingham, Alabama 35291 Warren E. Tate, Secretary Tommy Chisholm, Vice President and Treasurer and Secretary Gulf Power Company Southern Electric International, Inc. 500 Bayfront Parkway 900 Ashwood Parkway, Suite 500 Pensacola, Florida 32501 Atlanta, Georgia 30338 W. E. Gilmore, Secretary John O. Meier, Vice President and Treasurer and Corporate Secretary Mississippi Power Company Southern Nuclear Operating Company, Inc. 2992 West Beach 40 Inverness Center Parkway Gulfport, Mississippi 39501 Birmingham, Alabama 35204 (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 Troutman Sanders 600 Peachtree Street, N.E. Suite 5200 Atlanta, Georgia 30308-2216 INFORMATION REQUIRED Item 1. Description of Proposed Transactions. 1.1 Summary. The Southern Company ("Southern"), a registered holding company under the Public Utility Holding Company Act of 1935, as amended (the "Act"), proposes to issue and sell up to 25,000,000 additional shares of its authorized but unissued common stock, par value $5 per share, as such number may be adjusted for any share split or distribution hereafter authorized by the Commission (the "DRIP Stock"), pursuant to its Dividend Reinvestment and Stock Purchase Plan (the "Dividend Plan"), up to 9,000,000 additional shares of its authorized but unissued common stock, par value $5 per share, as such number may be adjusted for any share split or distribution hereafter authorized by the Commission (the "ESP Stock"), pursuant to The Southern Company Employee Savings Plan (the "Savings Plan") and up to 3,000,000 additional shares of its authorized but unissued common stock, par value $5 per share, as such number may be adjusted for any share split or distribution hereafter authorized by the Commission (the "ESOP Stock"), in order to provide common stock to fund The Employee Stock Ownership Plan of The Southern Company System (the "ESOP Plan"). It is proposed that the DRIP Stock, the ESP Stock and the ESOP Stock will be issued and sold from time to time on or prior to December 31, 1997. 1.2 Dividend Reinvestment and Stock Purchase Plan. The DRIP Stock will be offered to all holders of Southern's common stock pursuant to the Dividend Plan whereby shareholders voluntarily may elect to (1) have cash dividends on all of their - 2 - shares of Southern common stock automatically reinvested and have the option of investing additional amounts by making cash payments, or (2) have cash dividends on less than all of their shares automatically reinvested and continue to receive cash dividends on their remaining shares and have the option of investing additional amounts by making cash payments, or (3) invest by making optional cash payments only of not less than $25 per payment nor more than $6,000 per quarter. Cash dividends on shares credited to a participant's account under the Dividend Plan will be reinvested in shares of Southern's common stock. No shares will be sold by Southern under the Dividend Plan at less than the par value of such shares. Shares of common stock purchased on behalf of shareholders will be, at Southern's discretion, previously issued shares purchased on the open market, newly issued shares purchased directly from Southern, or a combination thereof. The price to participants will be the weighted average price paid for the shares. The price of shares purchased directly from Southern will be equal to the average of the high and low sale prices for Southern's common stock, as published in The Wall Street Journal in its report of NYSE-Composite Transactions, on the dividend payment date (or the average of the high and low sale prices on the trading dates immediately preceding and following the dividend payment date, if the common stock is not traded on the New York Stock Exchange on the dividend payment date). - 3 - Southern Company Services, Inc. administers the Dividend Plan. A registered broker-dealer will be designated to act as an independent agent for the purpose of purchasing shares for participants on the open market. No service charge or commission is paid by participants in connection with purchases under the Dividend Plan. A participant retains all voting rights relating to shares purchased under the Dividend Plan and credited to his account, and such shares will be voted in accordance with his instructions. A participant may withdraw from the Dividend Plan at any time upon written notice. In addition, without withdrawing from the Dividend Plan, a participant is entitled to demand and receive a certificate representing any number of whole shares of common stock credited to his account. Southern reserves the right to suspend, modify (subject to any requisite Commission approval) or terminate the Dividend Plan at any time. The Dividend Plan is set forth in its entirety in the prospectus included as a part of Exhibit C-1 hereto, to which reference is hereby made. 1.3 Employee Savings Plan. The ESP Stock will be offered to employees of Southern's subsidiaries pursuant to the Savings Plan under which such employees voluntarily may contribute, through payroll deductions, any whole percentage which is not more than 16% of their compensation (base salary or wages, including all amounts by which a Participant's compensation is reduced pursuant to his salary reduction election - 4 - under the Southern Electric System Flexible Benefit Plan and the Southern Company Flexible Benefits Plan) ("Voluntary Participant Contribution"). In addition, a Savings Plan member may elect to have his compensation reduced by a whole percentage which is not more than 16% of his compensation, such amount to be contributed to his account under the Savings Plan ("Elective Employer Contribution"). The maximum Voluntary Participant Contribution shall be reduced by the percent, if any, which is contributed as an Elective Employer Contribution on behalf of the Savings Plan member. The maximum Elective Employer Contributions any Participant may elect to defer under the Savings Plan in any taxable year of the Participant are subject to certain limitations under the Internal Revenue Code of 1986, as amended. For the 1994 plan year, each employing company will contribute, on behalf of each of the Savings Plan members in its employ, an amount equal to 75% of the member's Voluntary Participant Contribution, plus the Elective Employer Contribution made on his behalf, to the extent such contributions, when combined, do not exceed 6% of his compensation. Wachovia Bank of Georgia, N.A. acts as Trustee for the trust which is part of the Savings Plan, and the Savings Plan is administered by the Savings Plan Committee, the members of which are appointed by the Board of Directors of Southern Company Services, Inc. Each Savings Plan member must direct that his contributions be invested in one or more of the following funds: - 5 - (1) Company Stock Fund -- consisting of Southern's common stock; (2) Equity Fund -- consisting of common or capital stocks and securities convertible into common or capital stocks (other than securities issued or convertible into securities issued by Southern or any of its subsidiaries), short-term investments and investments in certain commingled trust funds; (3) Fixed Income Fund -- consisting of direct obligations of the U.S. Government and its agencies, corporate bonds, debentures, notes, certificates of indebtedness, evidences of indebtedness of Southern or its subsidiaries or affiliates, savings account deposits and investments in certain commingled trust funds and (4) Indexed Fund -- consisting of without substantial deviation in such common stock as may be selected from time to time to comprise the Standard and Poor's Composite Index of 500 Stocks, or through the medium of any commingled trust funds which comprise the Standard and Poor's Composite Index of 500 Stocks. All employer matching contributions are invested in the Company Stock Fund. Investment purchases by the Trustee for the funds may be made either on the open market or by private purchase, provided that no private purchase may be made of common stock of Southern at a price greater than the last sale price or current independent bid price, whichever is higher, for such stock on the New York Stock Exchange, plus an amount equal to the commission payable in a stock exchange transaction if such private purchase is not made from Southern. The Trustee may purchase common stock - 6 - of Southern directly from Southern under the Dividend Plan or under any other similar plan made available to all holders of record of shares of common stock of Southern, at the purchase price provided for in such plan. 1.4 Employee Stock Ownership Plan. The exact number of ESOP Shares to be issued by Southern will be determined by the aggregate amount of contributions to be invested by the trust established pursuant to the ESOP Plan (the "ESOP Trust") and the purchase price per share of Southern's common stock determined as set forth below. In order to encourage and assist employees of Southern's subsidiaries to acquire ownership of Southern's common stock and thereby promote in the employees a strong interest in the successful operation of The Southern Company system, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Company Services, Inc., Southern Electric Generating Company, Southern Electric International, Inc. and Southern Nuclear Operating Company, Inc. (the "Employing Companies") have adopted the ESOP Plan, which was effective as of January 1, 1976, in accordance with Section 301(d) of the Tax Reduction Act of 1975, as amended, and Section 401(a) of the Internal Revenue Code of 1954. (See HCAR No. 20165, File No. 70-6040, September 8, 1977.) The ESOP Plan was amended and restated effective January 1, 1987 in order to comply with the Internal Revenue Code of 1986 - 7 - (the "1986 Code"), as enacted by the Tax Reform Act of 1986. As amended and restated, the ESOP Plan permits the Employing Companies to contribute cash or common stock in an amount or under such formula as the Board of Directors of Southern Company Services, Inc. shall determine in its sole and absolute discretion. It is anticipated that the contributions by the Employing Companies to the ESOP Trust generally will be made in cash. However, if a contribution consists of ESOP Stock, the purchase price per share shall be the average of the closing prices of a share of Southern's common stock based on consolidated trading as defined by the Consolidated Tape Association and reported as part of the consolidated trading prices of New York Stock Exchange listed securities for the 20 consecutive trading days immediately preceding the date on which such shares are contributed to the ESOP Plan. The purchase price per share of ESOP Stock acquired from Southern by the ESOP Trust with cash contributions shall be the fair market value as of the date of acquisition. Cash contributions to the ESOP Trust also may be invested in Southern's common stock through open market purchases or private purchases from parties other than Southern. The purchase price per share of common stock acquired by private purchases from a party other than Southern shall not be greater than the last sale price or highest current independent bid price, whichever is higher, for a share determined on the basis - 8 - of consolidated trading as defined by the Consolidated Tape Association and reported as part of the consolidated trading prices of New York Stock Exchange listed securities, plus an amount not greater than the commission payable in a stock exchange transaction. Under the ESOP Plan, the ESOP Trust is required to reinvest cash dividends paid on shares of Southern's common stock allocated to a participant's account in additional shares of common stock, unless the participant elects to have such cash dividends distributed to him currently or the Employing Company distributes cash dividends in order to qualify such distribution for a tax deduction under the 1986 Code. In reinvesting any cash dividends, the ESOP Trust may purchase common stock under the Dividend Plan (at the price provided for in such plan), on the open market or by private purchase, including purchases directly from Southern (at the stock's fair market value). All costs of administration of the ESOP Plan and the ESOP Trust, in excess of those costs allowed by the 1986 Code to be withheld from contributions or to be paid by the ESOP Trust, are paid by the Employing Companies. 1.5 Use of Proceeds. Southern intends to use the net proceeds from the sale of the DRIP Stock, the ESP Stock and the ESOP Stock, together with other available funds, to make additional equity investments in subsidiaries, including cash capital contributions to its operating utility subsidiaries and investments in "exempt wholesale generators" and "foreign utility - 9 - companies," as defined in Sections 32 and 33, respectively, and for other corporate purposes. Projections of investments in subsidiaries are included in Exhibit G hereto. Investments by Southern in subsidiaries would only be made in accordance with existing or future authorizations in separate proceedings, or in accordance with such exemptions as may exist under the Act and the rules and regulations thereunder. In that regard, Southern states that it currently has authority to make investments only in the following wholly-owned, non- utility, subsidiaries: Southern Company Services, Inc. (File No. 70-8203), Southern Electric International, Inc. (File No. 70- 7209), and Southern Nuclear Operating Company, Inc. (File No. 70- 8147). Southern represents that no part of the proceeds from the sale of the DRIP Stock, the ESP Stock or the ESOP Stock proposed herein will be utilized by Southern Electric International, Inc. for a purpose that is currently permitted under HCA Release No. 35-24476 unless such purpose would also be permitted under an order approving the application, as filed, by Southern and Southern Electric International, Inc. in File No. 70-7932. Southern currently has authority through June 30, 1994 to make additional investments of up to $100,000,000 in Mississippi Power Company. Southern does not currently have authority to make additional investments in its other operating utility subsidiaries, but may request such approval in a separate filing. In separate pending filings, Southern is requesting authority to make investments in certain existing non-utility - 10 - subsidiaries and in certain proposed new subsidiaries. Specifically, in File Nos. 70-7932, 70-8173 and 70-8233, Southern is proposing to make additional investments in Southern Electric International, Inc. and The Southern Development and Investment Group, Inc., its wholly-owned subsidiaries, and investments in a new subsidiary to be called Southern Company Communications, Inc. Projections of the levels of financing of the activities of each of those subsidiaries are contained in the relevant related file. Southern states that it will not use any portion of the proceeds from the sale of the DRIP Stock, the ESP Stock or the ESOP Stock for which authority is sought herein to make investments in such subsidiaries, except in accordance with and subject to any limitations contained in the Commission's orders granting the applications in those related proceedings. Southern also anticipates the need to utilize up to $500 million of the proceeds from the sale of the DRIP Stock, the ESP Stock or the ESOP Stock to make investments from time to time in one or more direct or indirect subsidiaries of Southern that are "exempt wholesale generators" or "foreign utility companies," as defined in Sections 32 and 33 of the Act, respectively, in order to fund, in whole or in part, investments by such subsidiaries in facilities that such subsidiaries are permitted to acquire and own, and to fund ongoing development costs associated with potential direct or indirect investments by Southern in such entities, provided that, at any point in time, the aggregate of outstanding borrowings and/or commercial paper sales authorized - 11 - in File No. 70-8309, and proceeds of sales of common stock authorized in this proceeding and in File No. 70-8277 used for the purpose of acquiring the securities of or other interest in any such entities, and together with the amount of guarantees of the securities of such entities authorized in File No. 70-8277, shall not, in the aggregate, exceed $500 million. 1.6 Relation to Other Authorizations. By orders dated September 13, 1988 (HCAR No. 35-24713) and December 31, 1991 (HCAR No. 35-25448) in File No. 70-7527, Southern was authorized to issue and sell up to 10,000,000 shares of its common stock pursuant to the Dividend Plan and 5,000,000 shares of its common stock pursuant to the Savings Plan from time to time through December 31, 1995. At April 30, 1994 there were 5,314,152 shares and 2,810,644 shares remaining unissued pursuant to the Dividend Plan and the Savings Plan, respectively. It is Southern's intent that the authorization sought in this file would supersede and replace the authorization in File No. 70-7527 effective immediately upon the date of the Commission's order herein. Southern currently has no authority under the Act for the issuance of stock in connection with the ESOP Plan. 1.7 Compliance with Rule 53. Under Rule 53(a), the Commission shall not make certain specified adverse findings under Sections 7 and 12 in connection with a proposal by a holding company to issue securities for the purpose of acquiring the securities of or other interest in an "exempt wholesale generator," or to guarantee the securities of an "exempt - 12 - wholesale generator," if each of the conditions in paragraphs (a)(1) through (a)(4) thereof are met, provided that none of the conditions specified in paragraphs (b)(1) through (b)(3) of Rule 53 exists. In that regard, Southern states that, giving effect to the use of up to $500 million of proceeds of the common stock sales herein requested to acquire the securities or other interests in one or more "exempt wholesale generators," all of the conditions set forth in Rule 53(a) are and will be satisfied and none of the conditions set forth in Rule 53(b) exists or, as a result thereof, will exist. Rule 53(a)(1): Assuming the full utilization of $500 million of proceeds of the sale of the DRIP Stock, the ESP Stock and the ESOP Stock to make investments in "exempt wholesale generators" and "foreign utility companies," Southern's "aggregate investment" in such entities will equal approximately 28.5% of "consolidated retained earnings," as defined in Rule 53(a)(1)(ii), of Southern, determined as follows: At March 31, 1994, Southern had invested, directly or indirectly, an aggregate of $332.3 million in "exempt wholesale generators" and "foreign utility companies."1 The average of the consolidated retained earnings of Southern reported on Form 10-K or Form 10-Q, as applicable, for the four consecutive quarters ended March 31, 1994, is $2.924 billion. Southern's "aggregate investment," on a 1 These investments were in companies or partnerships that are "exempt wholesale generators," as defined in Section 32, operating or constructing facilities in Hawaii and Virginia, and in "foreign utility companies," as defined in Section 33, operating in The Grand Bahamas, Chile and Argentina. - 13 - pro forma basis, expressed as a percentage of "consolidated retained earnings," is approximately 28.5% ($332.3 million + $500 million divided by $2.924 billion). Rule 53(a)(2): Southern maintains books and records enabling it to identify investments in and earnings from each "exempt wholesale generator" and "foreign utility company" in which it directly or indirectly holds an interest. In addition, each domestic "exempt wholesale generator" in which Southern holds an interest maintains its books and records and prepares its financial statements in conformity with U.S. generally accepted accounting principles ("GAAP"). The books and records and financial statements of each "foreign utility company" in which Southern holds an interest (including those that are "majority-owned subsidiaries" and those that are not) are maintained and prepared in conformity with GAAP. All of such books and records and financial statements will be made available to the Commission, in English, upon request. Rule 53(a)(3): No more than 2% of the employees of Southern's operating utility subsidiaries will, at any one time, directly or indirectly, render services to "exempt wholesale generators" and "foreign utility companies." Based on current staffing levels of Southern's domestic operating utility subsidiaries (such companies currently employ, in the aggregate, approximately 27,000 salaried and hourly employees), no more than 540 employees of these companies, in the aggregate, determined on a full-time-equivalent basis, will be utilized at any one time in - 14 - rendering services directly or indirectly to "exempt wholesale generators" and "foreign utility companies." In a separate proceeding (File No. 70-7932) certain of Southern's subsidiaries are requesting authority to render services to "exempt wholesale generators" and "foreign utility companies," as required by Rule 53(a). Rule 53(a)(4): Southern is simultaneously submitting a copy of this Application or Declaration, and will submit copies of any Rule 24 certificates required hereunder, as well as a copy of Southern's Form U5S, to the Federal Energy Regulatory Commission and to each of the public service commissions having jurisdiction over the retail rates of Southern's operating utility subsidiaries. In addition, Southern states that the provisions of Rule 53(a) are not made inapplicable to the authorization herein requested by reason of the provisions of Rule 53(b). Rule 53(b)(1): Neither Southern nor any subsidiary of Southern is the subject of any pending bankruptcy or similar proceeding. Rule 53(b)(2): Southern's average consolidated retained earnings for the four most recent quarterly periods ($2.924 billion) represented an increase of approximately $53 million in the average consolidated retained earnings for the previous four quarterly periods ($2.873 billion). Rule 53(b)(3): For the twelve months ended March 31, 1994, aggregate losses attributable to Southern's direct or - 15 - indirect investments in "exempt wholesale generators" and "foreign utility companies" ($638,000) represented less than one- tenth of 1% of consolidated retained earnings ($2.918 billion). Item 2. Fees, Commissions and Expenses. Information as to fees and expenses to be incurred by Southern in connection with the issuance and sale of the DRIP Stock pursuant to the Dividend Plan will be set forth in an amendment hereto. Information as to fees and expenses to be incurred by the employing companies in connection with the issuance and sale of the ESP Stock pursuant to the Savings Plan will be set forth in an amendment hereto. Information as to fees and expenses to be incurred by the employing companies in connection with the issuance and sale of the ESOP Stock pursuant to the ESOP Plan will be set forth in an amendment hereto. Item 3. Applicable Statutory Provisions. Southern considers that the proposed issuance and sale of the DRIP Stock, of the ESP Stock and of the ESOP Stock are subject to the provisions of Sections 6(a), 7, 32 and 33 of the Act and Rules 53 and 54 thereunder. Southern considers that any purchases of Southern's common stock by the Employing Companies pursuant to the ESOP Plan prior to contributing such stock to the Trust are subject to the provisions of Sections 9(a) and 10 of the Act. - 16 - The proposed transactions will be carried out in accordance with the procedure specified in Rule 23 and pursuant to an order of the Commission with respect thereto. Item 4. Regulatory Approval. The issuance and sale by Southern of the DRIP Stock, the ESP Stock and the ESOP Stock as set forth in Item 1 hereof are not subject to the jurisdiction of any state commission or of any federal commission other than the Securities and Exchange Commission. Item 5. Procedure. It is hereby requested that the Commission's order be issued as soon as the rules allow, and that there be no thirty- day waiting period between the issuance of the Commission's order and the date on which it is to become effective. The applicant- declarants hereby waive a recommended decision by a hearing officer or other responsible officer of the Commission and hereby consent 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 matters covered hereby. Item 6. Exhibits and Financial Statements. (a) Exhibits A-1(a) - Composite Certificate of Incorporation of Southern reflecting all amendments to date. (Designated in Registration No. 33-3546 as Exhibit 4(a) and in Certificate of Notification, File No. 70-7341, as Exhibit A and in Certificate of Notification, File No. 70-8181, as Exhibit A.) - 17 - A-1(b) - 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-1 - Dividend Plan. (Included in the Registration Statement filed as Exhibit C-1 hereto.) B-2 - Amended and Restated Employee Savings Plan for The Southern Company System as amended to date. (Included in the Registration Statement filed as Exhibit C-2 hereto.) B-3 - Trust Agreement between Southern Company Services, Inc. and Wachovia Bank of Georgia, N.A. as Trustee under the Savings Plan. (To be filed by amendment.) B-4 - Employee Stock Ownership Plan of The Southern Company System, as amended to date. (To be filed by amendment.) B-5 - Employee Stock Ownership Plan Agreement of Trust, as amended to date. (To be filed by amendment.) C-1 - Registration statement of Southern with respect to the Dividend Plan filed pursuant to the Securities Act of 1933, as amended. (Designated in Form U-1, File No. 70-7527, as Exhibit C-1.) C-2 - Registration statement of Southern with respect to the Savings Plan filed pursuant to the Securities Act of 1933, as amended. (Designated in Form U-1, File No. 70-7527, as Exhibit C-2.) F-1 - Opinion of Troutman Sanders, counsel for Southern. (To be filed by amendment.) F-2 - Opinion of Balch & Bingham, counsel for Alabama Power Company, Southern Company Services, Inc., Southern Electric Generating Company and Southern Nuclear Operating Company, Inc. (To be filed by amendment.) - 18 - F-3 - Opinion of Troutman Sanders, counsel for Georgia Power Company and Southern Electric International, Inc. (To be filed by amendment.) F-4 - Opinion of Beggs & Lane, counsel for Gulf Power Company. (To be filed by amendment.) F-5 - Opinion of Eaton and Cottrell, P.A., counsel for Mississippi Power Company. (To be filed by amendment.) F-6 - Opinion of Bouhan, Williams & Levy, counsel for Savannah Electric and Power Company. (To be filed by amendment.) G - Estimated sources of funds for additional investments in subsidiaries of Southern. (To be filed by amendment.) H - Form of Notice. 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. (To be filed by amendment.) Corporate balance sheet of Southern at March 31, 1994. Corporate statement of income of Southern for the twelve months ended March 31, 1994. Item 7. Information as to Environmental Effects. (a) As described in Item 1, the proposed transactions are of a routine and strictly financial nature in the ordinary course of Southern's business. Accordingly, 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. - 19 - SIGNATURES Pursuant to the requirements of the Public Utility Holding Company Act of 1935, the undersigned companies have duly caused this statement to be signed on their behalf by the undersigned thereunto duly authorized. Dated: June 24, 1994 THE SOUTHERN COMPANY By:/s/Tommy Chisholm Tommy Chisholm Secretary ALABAMA POWER COMPANY By: /s/Wayne Boston Wayne Boston Assistant Secretary GEORGIA POWER COMPANY By: /s/Wayne Boston Wayne Boston Assistant Secretary GULF POWER COMPANY By: /s/Wayne Boston Wayne Boston Assistant Secretary MISSISSIPPI POWER COMPANY By: /s/Wayne Boston Wayne Boston Assistant Secretary (Signatures continued on following page.) - 20 - SAVANNAH ELECTRIC AND POWER COMPANY By: /s/Wayne Boston Wayne Boston Assistant Secretary SOUTHERN COMPANY SERVICES, INC. By: /s/Wayne Boston Wayne Boston Assistant Secretary SOUTHERN ELECTRIC GENERATING COMPANY By: /s/Wayne Boston Wayne Boston Assistant Secretary SOUTHERN ELECTRIC INTERNATIONAL, INC. By: /s/Tommy Chisholm Tommy Chisholm Secretary SOUTHERN NUCLEAR OPERATING COMPANY, INC. By: /s/Wayne Boston Wayne Boston Assistant Secretary EX-99 2 EXHIBIT H The Southern Company, et al. (70- ) The Southern Company ("Southern"), a registered holding company, 64 Perimeter Center East, Atlanta, Georgia 30346, and its subsidiaries, Alabama Power Company, 600 North 18th Street, Birmingham, Alabama, 35291, Georgia Power Company, 333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, Gulf Power Company, 500 Bayfront Parkway, Pensacola, Florida 32501, Mississippi Power Company, 2992 West Beach, Gulfport, Mississippi 39501, Savannah Electric and Power Company, 600 Bay Street East, Savannah, Georgia 31401, Southern Company Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346, Southern Electric International, Inc., 900 Ashwood Parkway, Suite 500, Atlanta, Georgia 30338, Southern Nuclear Operating Company, Inc., 40 Inverness Center Parkway, Birmingham, Alabama, 35205 and Southern Electric Generating Company, 600 North 18th Street, Birmingham, Alabama 35291, a subsidiary of Alabama Power Company and Georgia Power Company (collectively, "Applicants"), have filed an application/declaration pursuant to Sections 6(a), 7, 9(a), 10, 32 and 33 of the Act and Rules 23, 53 and 54 thereunder. Southern proposes to issue and sell up to 25,000,000 additional shares of its authorized but unissued common stock, par value $5 per share, as such number may be adjusted for any share split or distribution hereafter authorized by the Commission (the "DRIP Stock"), pursuant to its Dividend Reinvestment and Stock Purchase Plan (the "Dividend Plan"), up to 9,000,000 additional shares of its authorized but unissued common stock, par value $5 per share, as such number may be adjusted for any share split or - 2 - distribution hereafter authorized by the Commission (the "ESP Stock"), pursuant to The Southern Company Employee Savings Plan (the "Savings Plan") and up to 3,000,000 additional shares of its authorized but unissued common stock, par value $5 per share, as such number may be adjusted for any share split or distribution hereafter authorized by the Commission (the "ESOP Stock"), in order to provide common stock to fund The Employee Stock Ownership Plan of The Southern Company System (the "ESOP Plan"). It is proposed that the DRIP Stock, the ESP Stock and the ESOP Stock will be issued and sold from time to time on or prior to December 31, 1997. The DRIP Stock will be offered to all holders of Southern's common stock pursuant to the Dividend Plan whereby shareholders voluntarily may elect to (1) have cash dividends on all of their shares of Southern common stock automatically reinvested and have the option of investing additional amounts by making cash payments, or (2) have cash dividends on less than all of their shares automatically reinvested and continue to receive cash dividends on their remaining shares and have the option of investing additional amounts by making cash payments, or (3) invest by making optional cash payments only of not less than $25 per payment nor more than $6,000 per quarter. Cash dividends on shares credited to a participant's account under the Dividend Plan will be reinvested in shares of Southern's common stock. No shares will be sold by Southern under the Dividend Plan at less than the par value of such shares. Shares of common stock purchased on behalf of shareholders - 3 - will be, at Southern's discretion, previously issued shares purchased on the open market, newly issued shares purchased directly from Southern, or a combination thereof. The price to participants will be the weighted average price paid for the shares. The price of shares purchased directly from Southern will be equal to the average of the high and low sale prices for Southern's common stock, as published in The Wall Street Journal in its report of NYSE-Composite Transactions, on the dividend payment date (or the average of the high and low sale prices on the trading dates immediately preceding and following the dividend payment date, if the common stock is not traded on the New York Stock Exchange on the dividend payment date). Southern Company Services, Inc. administers the Dividend Plan. A registered broker-dealer will be designated to act as an independent agent for the purpose of purchasing shares for participants on the open market. No service charge or commission is paid by participants in connection with purchases under the Dividend Plan. A participant retains all voting rights relating to shares purchased under the Dividend Plan and credited to his account, and such shares will be voted in accordance with his instructions. A participant may withdraw from the Dividend Plan at any time upon written notice. In addition, without withdrawing from the Dividend Plan, a participant is entitled to demand and receive a certificate representing any number of whole shares of common stock credited to his account. Southern - 4 - reserves the right to suspend, modify (subject to any requisite Commission approval) or terminate the Dividend Plan at any time. The ESP Stock will be offered to employees of Southern's subsidiaries pursuant to the Savings Plan under which such employees voluntarily may contribute, through payroll deductions, any whole percentage which is not more than 16% of their compensation (base salary or wages, including all amounts by which a Participant's compensation is reduced pursuant to his salary reduction election under the Southern Electric System Flexible Benefit Plan and the Southern Company Flexible Benefits Plan) ("Voluntary Participant Contribution"). In addition, a Savings Plan member may elect to have his compensation reduced by a whole percentage which is not more than 16% of his compensation, such amount to be contributed to his account under the Savings Plan ("Elective Employer Contribution"). The maximum Voluntary Participant Contribution shall be reduced by the percent, if any, which is contributed as an Elective Employer Contribution on behalf of the Savings Plan member. The maximum Elective Employer Contributions any Participant may elect to defer under the Savings Plan in any taxable year of the Participant are subject to certain limitations under the Internal Revenue Code of 1986, as amended. For the 1994 plan year, each employing company will contribute, on behalf of each of the Savings Plan members in its employ, an amount equal to 75% of the member's Voluntary Participant Contribution, plus the Elective Employer Contribution made on his behalf, to the extent such contributions, when combined, do not exceed 6% of his - 5 - compensation. Wachovia Bank of Georgia, N.A. acts as Trustee for the trust which is part of the Savings Plan, and the Savings Plan is administered by the Savings Plan Committee, the members of which are appointed by the Board of Directors of Southern Company Services, Inc. Each Savings Plan member must direct that his contributions be invested in one or more of the following funds: (1) Company Stock Fund -- consisting of Southern's common stock; (2) Equity Fund -- consisting of common or capital stocks and securities convertible into common or capital stocks (other than securities issued or convertible into securities issued by Southern or any of its subsidiaries), short-term investments and investments in certain commingled trust funds; (3) Fixed Income Fund -- consisting of direct obligations of the U.S. Government and its agencies, corporate bonds, debentures, notes, certificates of indebtedness, evidences of indebtedness of Southern or its subsidiaries or affiliates, savings account deposits and investments in certain commingled trust funds and (4) Indexed Fund -- consisting of without substantial deviation in such common stock as may be selected from time to time to comprise the Standard and Poor's Composite Index of 500 Stocks, or through the medium of any commingled trust funds which comprise the Standard and Poor's Composite Index of 500 Stocks. All employer matching contributions are invested in the Company Stock Fund. Investment purchases by the Trustee for the funds may be made either on the open market or by private purchase, provided - 6 - that no private purchase may be made of common stock of Southern at a price greater than the last sale price or current independent bid price, whichever is higher, for such stock on the New York Stock Exchange, plus an amount equal to the commission payable in a stock exchange transaction if such private purchase is not made from Southern. The Trustee may purchase common stock of Southern directly from Southern under the Dividend Plan or under any other similar plan made available to all holders of record of shares of common stock of Southern, at the purchase price provided for in such plan. The exact number of ESOP Shares to be issued by Southern will be determined by the aggregate amount of contributions to be invested by the trust established pursuant to the ESOP Plan (the "ESOP Trust") and the purchase price per share of Southern's common stock determined as set forth below. In order to encourage and assist employees of Southern's subsidiaries to acquire ownership of Southern's common stock and thereby promote in the employees a strong interest in the successful operation of The Southern Company system, the Applicants have adopted the ESOP Plan, which was initially effective as of January 1, 1976. The ESOP Plan was amended and restated effective January 1, 1987 in order to comply with the Internal Revenue Code of 1986 (the "1986 Code"), as enacted by the Tax Reform Act of 1986. As amended and restated, the ESOP Plan permits the Applicants to contribute cash or common stock in an amount or under such formula as the Board of Directors of Southern Company - 7 - Services, Inc. shall determine in its sole and absolute discretion. It is anticipated that the contributions by the Applicants to the ESOP Trust generally will be made in cash. However, if a contribution consists of ESOP Stock, the purchase price per share shall be the average of the closing prices of a share of Southern's common stock based on consolidated trading as defined by the Consolidated Tape Association and reported as part of the consolidated trading prices of New York Stock Exchange listed securities for the 20 consecutive trading days immediately preceding the date on which such shares are contributed to the ESOP Plan. The purchase price per share of ESOP Stock acquired from Southern by the ESOP Trust with cash contributions shall be the fair market value as of the date of acquisition. Cash contributions to the ESOP Trust also may be invested in Southern's common stock through open market purchases or private purchases from parties other than Southern. The purchase price per share of common stock acquired by private purchases from a party other than Southern shall not be greater than the last sale price or highest current independent bid price, whichever is higher, for a share determined on the basis of consolidated trading as defined by the Consolidated Tape Association and reported as part of the consolidated trading prices of New York Stock Exchange listed securities, plus an amount not greater than the commission payable in a stock exchange transaction. Under the ESOP Plan, the ESOP Trust is required to - 8 - reinvest cash dividends paid on shares of Southern's common stock allocated to a participant's account in additional shares of common stock, unless the participant elects to have such cash dividends distributed to him currently or the Employing Company distributes cash dividends in order to qualify such distribution for a tax deduction under the 1986 Code. In reinvesting any cash dividends, the ESOP Trust may purchase common stock under the Dividend Plan (at the price provided for in such plan), on the open market or by private purchase, including purchases directly from Southern (at the stock's fair market value). All costs of administration of the ESOP Plan and the ESOP Trust, in excess of those costs allowed by the 1986 Code to be withheld from contributions or to be paid by the ESOP Trust, are paid by the Applicants. Southern intends to use the net proceeds from the sale of the DRIP Stock, the ESP Stock and the ESOP Stock, together with other available funds, to make additional equity investments in subsidiaries, including cash capital contributions to its operating utility subsidiaries and investments in "exempt wholesale generators" and "foreign utility companies," as defined in Sections 32 and 33, respectively, and for other corporate purposes. -----END PRIVACY-ENHANCED MESSAGE-----