-----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, XrrmtRSt11Et9/isjgU+5Dtq5xn/v4ObO/lI+VwesYPc1omqIvxLmP8w1m7OKdNQ IU4e+tTCAtJIfUQ7Aw8hgQ== 0000092122-95-000017.txt : 19950224 0000092122-95-000017.hdr.sgml : 19950224 ACCESSION NUMBER: 0000092122-95-000017 CONFORMED SUBMISSION TYPE: U-1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19950223 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN CO CENTRAL INDEX KEY: 0000092122 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 580690070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U-1/A SEC ACT: 1935 Act SEC FILE NUMBER: 070-08563 FILM NUMBER: 95514374 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 FORM U-1 File No. 70-8563 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 THE SOUTHERN DEVELOPMENT AND INVESTMENT GROUP, INC. 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 (Name and address of agent for service) The Commission is requested to mail signed copies of all orders, notices and communications to: W. L. Westbrook John D. McLanahan, Esq. Financial Vice President Troutman Sanders The Southern Company 600 Peachtree Street, N.E. 64 Perimeter Center East Suite 5200 Atlanta, Georgia 30346 Atlanta, Georgia 30308-2216 INFORMATION REQUIRED The Application or Declaration heretofore filed in the above-referenced proceeding is hereby amended, as follows: 1. By adding the following paragraph to Item 1.4 - Other Matters: The Partnership intends to rely upon an exemption from the definition of an "investment company" under Section 3(c)(1) of the Investment Company Act of 1940. Accordingly, the Partnership will limit the number of beneficial owners of Partnership interests to 100 or less. To this end, the Partnership and its counsel will rely upon certain factual representations of the Limited Partners contained in the Subscription Agreement (Exhibit B hereto) regarding their status for purposes of Section 3(c)(1). (see paragraph 6, Subscription Agreement). 2. By adding the following additional paragraphs to Item 3 - Applicable Statutory Provisions: Sections 6 and 7 of the Act are applicable to the issuance of any promissory note by Development under circumstances in which Development (as a "Non-Conflicted Partner") elects to exercise its right under Section 4.1(a)(iv) of the Partnership Agreement to purchase its proportionate share of any other Limited Partner's interest in a Partnership investment which, as to such other Limited Partner, would constitute a "Conflicting Interest." The proposed transaction is also subject to Rule 54. Under Rule 54, in determining whether to approve the issue or sale of a security by a registered holding company for purposes other than the acquisition of an "exempt wholesale generator" or "foreign utility company," or other transactions by such registered holding company or its subsidiaries other than with respect to "exempt wholesale generators" or "foreign utility companies," the Commission shall not consider the effect of the capitalization or earnings of any subsidiary which is an "exempt wholesale generator" or a "foreign utility company" upon the registered holding company system if Rules 53(a), (b) and (c) are satisfied. In that regard, assuming consummation of the transaction proposed in this application, 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 full utilization of $500 million of proceeds of the sale of Common Stock (as authorized in HCAR Nos. 25980 and 26098) and/or the use of up to $500 million of the proceeds of short-term borrowings and/or commercial paper sales (as authorized in HCAR No. 26004), to make investments in "exempt wholesale generators" and "foreign utility companies," or the guaranty by Southern of up to $500 million of securities of any "exempt wholesale generators" or "foreign utility companies" (as authorized -2- by HCAR No. 25980), the combination of which may not exceed $500 million, Southern's "aggregate investment" in such entities would be approximately 26.9% of "consolidated retained earnings," as defined in Rule 53(a)(1)(ii), of Southern, determined as follows: At September 30, 1994, Southern had invested, directly or indirectly, an aggregate of $409.5 million in "exempt wholesale generators" and "foreign utility companies," 1 and had utilized for this purpose approximately $97.7 million of the authorized proceeds of common stock, debt and/or guarantees. 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 September 30, 1994, is $3.019 billion. Southern's "aggregate investment," on a pro forma basis, expressed as a percentage of "consolidated retained earnings," is approximately 26.9% ($409.5 million + $402.3 million divided by $3.019 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 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. -3- 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 rendering services directly or indirectly to "exempt wholesale generators" and "foreign utility companies." By order dated December 30, 1994 (HCAR No. 26212), certain of Southern's subsidiaries have been authorized to render services to "exempt wholesale generators" and "foreign utility companies," as required by Rule 53(a). -4- 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 the appropriate public service commission(s) 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 ($3.019 billion) represented an increase of approximately $44 million in the average consolidated retained earnings for the previous four quarterly periods ($2.975 billion). Rule 53(b)(3): In the previous fiscal year, Southern did not report any operating losses attributable to its direct or indirect investments in "exempt wholesale generators" and "foreign utility companies." -5- 3. By including the following Exhibits as a part of Item 6 - Exhibits and Financial Statements: (a) Exhibits. B EnviroTech Investment Fund I Limited Partnership- Subscription Agreement. F - Opinion of Counsel. (b) Financial Statements. Financial Statements are omitted since they are not deemed necessary for a proper disposition of the proposed transactions by the Commission. SIGNATURE Pursuant to the requirements of the Public Utility Holding Company Act of 1935, the undersigned company has duly caused this Amendment No. 1 to be signed on its behalf by the undersigned thereunto duly authorized. Dated: February 23, 1995 THE SOUTHERN COMPANY By: /s/Tommy Chisholm Tommy Chisholm, Secretary THE SOUTHERN DEVELOPMENT AND INVESTMENT GROUP, INC. By: /s/Tommy Chisholm Tommy Chisholm, Vice President and Secretary -6- EX-99 2 EXHIBIT B Exhibit B ENVIROTECH INVESTMENT FUND I LIMITED PARTNERSHIP SUBSCRIPTION AGREEMENT Name of Subscriber: _______________________________________ Address of Subscriber: _______________________________________ _______________________________________ _______________________________________ Taxpayer Identification Number: ______________ Total Amount of Capital Commitment: US$___________ Amount of Initial Capital Contribution (10% of total amount of Capital Commitment): US$___________ Country of Residence/State of Incorporation: __________________ Distributions by the Partnership are to be paid in the following form if possible (check one): ( ) WIRE TRANSFER ABA No. _____________________ Account Name___________________ _______________________________ Account No. ___________________ ( ) CHECK Send to: _____________________ _______________________________ _______________________________ TO: ADVENT INTERNATIONAL LIMITED PARTNERSHIP, as General Partner of ENVIROTECH INVESTMENT FUND I LIMITED PARTNERSHIP, a Limited Partnership formed under the Laws of the State of Delaware (the "Partnership") The undersigned hereby agrees with you and the Partnership as follows (any capitalized term not otherwise defined herein shall have the meaning set forth in the Limited Partnership Agreement of the Partnership (the "Partnership Agreement")): 1. The undersigned hereby subscribes for a total commitment to the capital of the Partnership in the amount specified above (the "Capital Commitment"), in accordance with and subject to the terms, provisions and conditions set forth herein and in the Partnership Agreement. 2. The undersigned will pay to the Partnership on the closing date established by you (the "Closing Date"), cash in the amount of its initial Capital Contribution as specified above (ten percent (10%) of its Capital Commitment), by wire transfer or other valid payment pursuant to instructions from you. The undersigned will pay the remainder of its Capital Commitment at the times and in the manner set forth in the Partnership Agreement. 3. The undersigned understands that you will notify him or it whether this Subscription Agreement has been accepted or rejected by the Closing Date, or, if this Subscription Agreement is received by you subsequent to the Closing Date, within thirty (30) days after receipt. Acceptance of this Subscription Agreement shall be by return of one original copy of this Subscription Agreement, acknowledged by you. The undersigned further understands that you reserve the right to accept or reject subscriptions and that this Subscription Agreement may be rejected for any reason whatsoever by you, as you shall deem necessary. 4. The undersigned acknowledges, warrants, represents and agrees as follows: (a) The undersigned has reviewed and understands the risks of, and other considerations relating to, the Capital Commitment. The undersigned has such knowledge and experience in financial and business matters that he or it is capable of evaluating the merits and risks of an investment in the Partnership and of making an informed investment decision. (b) The undersigned has been granted the opportunity to make a thorough investigation of the proposed activities of the Partnership, has been furnished with all materials relating to the Partnership and its proposed activities that he or it has requested, and has been afforded the opportunity to obtain any additional information necessary to verify the accuracy of any representations made or information conveyed to him or it. 2 (c) The Capital Commitment is being subscribed to for the undersigned's own account for investment only and not with a view to, or with any intention of, a distribution or resale thereof, in whole or in part, or the grant of any participation therein. (d) The undersigned is an "accredited investor" as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933 and the net worth of the undersigned exceeds $1,000,000. 5. The undersigned, if a corporation, partnership, trust or other form of entity, agrees, warrants and represents that (i) it is authorized and otherwise duly qualified to subscribe for the Capital Commitment and to execute this Subscription Agreement and the Partnership Agreement; (ii) this Subscription Agreement and the Partnership Agreement constitute valid, binding and enforceable obligations of the undersigned; (iii) the person executing this Subscription Agreement and the Partnership Agreement on behalf of the undersigned is authorized to act for the undersigned in subscribing for the Capital Commitment; and (iv) the undersigned has its principal place of business as set forth on the signature page hereof. In addition, if the undersigned is a corporation, (x) the undersigned has been duly incorporated and is validly existing under the laws of its state of incorporation indicated above with full corporate power and authority to execute this Subscription Agreement and to enter into the transactions contemplated by the Partnership Agreement; and (y) this Subscription Agreement and the Partnership Agreement have been duly executed and delivered by the undersigned. If the undersigned is one of the aforementioned entities, it hereby agrees to supply any additional written information concerning the representations in this Subscription Agreement that you may reasonably require. 6. The undersigned, if a corporation, partnership, trust or other entity, was not formed for the specific purpose of acquiring its interest in the Partnership and is the beneficial owner of its interest in the Partnership within the meaning of Section 3(c)(1) of the Investment Company Act of 1940. If the undersigned's investment in the Partnership will constitute 10% or more of the total Capital Commitments made by all Partners in the Partnership, the undersigned's other investments and total assets are such that it, and not the holders of its outstanding securities, will be deemed to be the beneficial owner of its interest in the Partnership for purposes of Section 3(c)(1) of the Investment Company Act of 1940. 7. The undersigned elects to be paid all distributions and other amounts payable to the undersigned by the Partnership in the form (either by wire transfer or check) indicated on the first page of this Subscription Agreement. If no election is 3 made by the undersigned, all distributions will be paid in the form of a check. The Partnership is authorized to pay such distributions in the form elected in this Subscription Agreement until five (5) business days after it has received from the undersigned, in writing, new payment instructions. Neither the Partnership nor the General Partner will have any liability for any distribution or payment paid in the manner and to the account or address elected by the undersigned on the first page of this Agreement or as subsequently elected in writing by the undersigned. 8. Neither this Subscription Agreement nor the rights accruing pursuant to this Subscription Agreement shall be transferable without your prior written consent. 9. This Subscription Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the undersigned, subject to the requirements of Section 8 hereof, and, when accepted by you, shall be binding upon your successors and assigns. 10. Unless otherwise provided for, the undersigned is delivering herewith THREE executed copies of this Subscription Agreement that have been signed, dated and completed in accordance with the instructions hereon. 11. All of the agreements, representations and warranties made by the undersigned in this Subscription Agreement shall survive the execution of the Partnership Agreement. 12. This Subscription Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement this ________ day of ______________, 1995. __________________________________ Name(s) By: _____________________________ Hereunto duly authorized 4 ACKNOWLEDGMENT The foregoing Subscription Agreement is hereby accepted upon the terms and condition set forth above and in the Partnership Agreement. ADVENT INTERNATIONAL LIMITED PARTNERSHIP, as General Partner of ENVIROTECH INVESTMENT FUND I LIMITED PARTNERSHIP By: Advent International Corporation, general partner By:_______________________________ Title: Dated:____________________________ 5 EX-99 3 EXHIBIT F Exhibit F TROUTMAN SANDERS Atlanta, Georgia 404-885-3000 February 23, 1995 Securities and Exchange Commission Washington, D.C. 20549 Re: The Southern Company; The Southern Development and Investment Group, Inc. - Form U-1 Application or Declaration (File No. 70-8563) Ladies and Gentlemen: We are familiar with the statement on Form U-1 referred to above, as amended, and are furnishing this opinion with respect to the transactions described therein, pursuant to which The Southern Development and Investment Group, Inc. ("Development") proposes to invest an aggregate of up to $5 million from time to time through December 31, 2002, to acquire a limited partnership interest in EnviroTech Investment Fund I Limited Partnership (the "Partnership"), and The Southern Company ("Southern") proposes to make cash capital contributions to Development in an aggregate amount not to exceed $5 million as and when required under the terms of the limited partnership agreement ("Partnership Agreement") to fund Development's capital commitment. We are of the opinion that each of Development and Southern is a validly organized and duly existing corporation under the laws of the state in which it is organized, and that, upon the issuance of your order herein, and in the event that the proposed transactions are consummated in accordance with such statement on Form U-1 and your order: (a) all state laws applicable to the proposed transactions will have been complied with; (b) assuming that the Partnership Agreement in the form thereof included as Exhibit A to the statement on Form U-1 is duly authorized, executed and delivered; that the Partnership is duly formed; and that the Partnership interests are legally issued in compliance with all applicable requirements of law and the governing instruments of the Partnership, then Development will be entitled to all of the rights and privileges of a limited partner under the Partnership Agreement; Securities and Exchange Commission December 23, 1994 Page 2 (c) the consummation of the transactions described above will not violate the legal rights of the holders of any securities issued by Development or any associate company thereof. We hereby consent to the use of this opinion in connection with the filing of such statement on Form U-1. Very truly yours, /s/Troutman Sanders Troutman Sanders -----END PRIVACY-ENHANCED MESSAGE-----